UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
Amendment No. 2
RULE 13e-3 TRANSACTION STATEMENT
(Pursuant to Section 13(e) of the Securities
Exchange Act of 1934)
Sky-mobi Limited
(Name of the Issuer)
Sky-mobi Limited
Mr. Michael Tao Song
Xplane Ltd.
Mobi Joy Limited
Amber Shining Investment
Limited
Power Rich Limited
(Names of Persons Filing Statement)
Shares, par value $0.00005 per share
American Depositary Shares, each representing
eight Shares
(Title of Class of Securities)
83084G 109
(CUSIP Number)
1
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Fischer Xiaodong Chen
Sky-mobi Limited
10/F, Building B, United Mansion
No. 2 Zijinghua Road, Hangzhou
Zhejiang 310013, People’s Republic
of China
Telephone: +(86) 571-8777-0978
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Mr. Michael Tao Song
Xplane Ltd.
Mobi Joy Limited
Amber Shining Investment Limited
Power Rich Limited
10/F, Building B, United Mansion
No. 2 Zijinghua Road, Hangzhou
Zhejiang 310013, People’s Republic
of China
Telephone: +(86) 571-8777-0978-8906
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
With copies to:
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Richard Vernon Smith, Esq.
Jeffrey J. Sun, Esq.
Orrick, Herrington & Sutcliffe LLP
47th Floor, Park Place
1601 Nanjing Road West, Shanghai 200040
People's Republic of China
Telephone: +86 21 6109-7000
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Fang Xue, Esq.
Gibson, Dunn & Crutcher LLP
Unit 1301, Tower 1, China Central Place,
No. 81 Jianguo Road
Beijing 100025
People’s Republic of China
Telephone: +86 10 6502 8500
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Shuang Zhao, Esq.
Cleary Gottlieb Steen & Hamilton LLP
c/o 37th Floor, Hysan Place
500 Hennessy Road
Causeway Bay, Hong Kong
Telephone: +852 2521 4122
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This statement is filed in connection with (check the appropriate
box):
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a
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¨
The
filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14-C or Rule 13e-3(c) under
the Securities Exchange Act of 1934.
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b
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¨
The
filing of a registration statement under the Securities Act of 1933.
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Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies:
¨
Check the following box if the filing is a final amendment reporting
the results of the transaction:
¨
Calculation of Filing Fee
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Transactional Valuation*
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Amount of Filing Fee**
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$35,854,055
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$3,611
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*
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Calculated solely for the purpose of determining the filing fee in accordance with Rule 0-11(b)(1) under the Securities Exchange Act of 1934, as amended. The filing fee is calculated based on the sum of (a) the aggregate cash payment for the proposed per share cash payment of $0.275 for 120,944,696 issued and outstanding shares of the issuer (including shares represented by the American depositary shares) subject to the transaction, and (b) the product of 9,423,544 restricted shares of the issuer subject to the transaction multiplied by $0.275 per restricted share plus (c) the product of 185,912 shares issuable under all outstanding options with per share exercise price lower than $0.275 multiplied by $0.015 per share (which is the difference between $0.275 per share merger consideration and the weighted average exercise price of $0.26 per share of such options) ((a) , (b) and (c) together, the “Transaction Valuation”).
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**
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The amount of the filing fee, calculated in accordance with Exchange Act Rule 0-11(b)(1) and the Securities and Exchange Commission Fee Rate Advisory #1 for Fiscal Year 2016, was calculated by multiplying the Transaction Valuation by 0.0001007.
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¨
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Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting of the fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid:
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Filing Party:
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Form or Registration No.:
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Date Filed:
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1
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This CUSIP applies to the American Depositary Shares, evidenced
by American Depositary Receipts, each representing eight shares.
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TABLE OF CONTENTS
INTRODUCTION
This Amendment No. 2 to the Rule 13e-3
transaction statement on Schedule 13E-3, together with the exhibits hereto (this “Transaction Statement”), is being
filed with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 13e-3 promulgated under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), jointly by the following persons (each, a “Filing Person,”
and collectively, the “Filing Persons”): (a) Sky-mobi Limited, an exempted company with limited liability incorporated
under the laws of the Cayman Islands (the “Company”), the issuer of the shares, par value US$0.00005 per share (each,
a “Share” and collectively, the “Shares”), including the Shares represented by the American depositary
shares (“ADSs”), each representing eight Shares, that is subject to the transaction pursuant to Rule 13e-3 under the
Exchange Act; (b) Mr. Michael Tao Song, the founder, chairman and chief executive officer of the Company (“Mr. Song”);
(c) Xplane Ltd., a company with limited liability incorporated under the laws of the British Virgin Islands; (d) Mobi Joy Limited,
a company with limited liability incorporated under the laws of the British Virgin Islands wholly owned by Mr. Song (together
with Mr. Song and Xplane Ltd., the “Rollover Shareholders”); (e) Amber Shining Investment Limited, an exempted company
with limited liability incorporated under the laws of Cayman Islands (“Parent”); and (f) Power Rich Limited, an exempted
company with limited liability incorporated under the laws of Cayman Islands and a wholly owned subsidiary of Parent (“Merger
Sub”).
On August 22, 2016, Parent, Merger Sub and
the Company entered into an agreement and plan of merger (the “Merger Agreement”) providing for the merger of Merger
Sub with and into the Company (the “Merger”), with the Company continuing as the surviving company (the “Surviving
Corporation”) resulting from the Merger as a wholly owned subsidiary of Parent.
If the Merger is consummated, at the effective
time of the Merger (the “Effective Time”), each Share issued and outstanding immediately prior to the Effective Time
will be cancelled and cease to exist in exchange for the right to receive US$0.275 and each issued and outstanding ADS will represent
the right to receive, upon surrender, US$2.20, in each case, in cash, without interest and net of any applicable withholding taxes.
The holders of ADSs will pay any applicable fees, charges and expenses of Citibank, N.A., in its capacity as the ADS depositary
in connection with distribution of the merger consideration to holders of ADSs, including applicable ADS cancellation fees. Notwithstanding
the foregoing, if the Merger is consummated, the following Shares (including Shares represented by ADSs) will be cancelled and
cease to exist at the Effective Time but will not be converted into the right to receive the consideration described in the immediately
preceding sentence:
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(a)
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the Shares held by the Rollover Shareholders and the Shares held by Parent, the Company or any
of their subsidiaries (including such Shares represented by ADSs) immediately prior to the Effective Time, which will be cancelled
without payment of any consideration or distribution therefor; and
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(b)
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Shares owned by shareholders who have validly exercised and have not effectively withdrawn or lost
their rights to dissent from the Merger in accordance with Section 238 of the Companies Law Cap. 22 (Law 3 of 1961, as consolidated
and revised) of the Cayman Islands (the “Cayman Islands Companies Law”), which will be cancelled and will entitle the
former holders thereof to receive the fair value thereon in accordance with the provisions of Section 238 of the Cayman Islands
Companies Law.
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In addition, at the Effective Time, each option
to purchase Shares granted under the Company’s 2016 Share Incentive Plan and the 2010 Share Incentive Plan (together, the
“Company Incentive Plans”) (each a “Company Stock Option”) that is vested and outstanding immediately prior
to the Effective Time will be cancelled in exchange for the right of the holder of such vested Company Stock Option to receive
cash, without interest, in the amount equal to the product of (x) the excess, if any, of US$0.275 over the exercise price per Share
under such Company Stock Option and (y) the number of Shares subject to such Company Stock Option (the “Vested Company Option
Consideration”), provided that if the exercise price per Share of any such Company Stock Option is equal to or greater than
US$0.275, such Company Stock Option will be cancelled without any cash payment being made in respect thereof.
At the Effective Time, each Company Stock Option
that is unvested and outstanding immediately as of the Effective Time will be cancelled in exchange for the right of the holder
of such unvested Company Stock Option to receive deferred cash payments, without interest, in an amount equal to the Vested Company
Option Consideration, which cash amount will be payable by the Surviving Corporation subject to and in accordance with the vesting
schedule and other terms and conditions applicable to such unvested Company Stock Option as in effect immediately prior to the
Effective Time, with any such payments to be made within 20 days of the applicable vesting date.
At the Effective Time, each restricted share
of the Company granted under the Company Incentive Plans (each a “Company Restricted Share”), except for certain unvested
Company Restricted Shares that will be accelerated pursuant to the terms of the Merger Agreement (the “Cashed Out Restricted
Shares”) and Company Restricted Shares owned by the Rollover Shareholders, will be cancelled in exchange for the right of
the holder of such Company Restricted Share to receive deferred cash payments, without interest, equal to US$0.275, which cash
amount will be payable by the Surviving Corporation subject to and in accordance with the vesting schedule and other terms and
conditions applicable to such Company Restricted Share as in effect immediately prior to the Effective Time. At the Effective Time,
each Cashed Out Restricted Share will be canceled in exchange for the right to receive US$0.275.
The Merger remains subject to the satisfaction
or waiver of the conditions set forth in the Merger Agreement, including obtaining the requisite approval of the shareholders of
the Company. The Merger Agreement, the plan of merger required to be filed with the Registrar of Companies of the Cayman Islands
in connection with the Merger (the “Plan of Merger”) and the transactions contemplated by the Merger Agreement and
the Plan of Merger (collectively, the “Transactions”), including the Merger, must be authorized and approved by a special
resolution of the Company passed by an affirmative vote of holders of Shares representing not less than two-thirds of the Shares
(including Shares represented by ADSs) present and voting in person or by proxy as a single class at the extraordinary general
meeting held in accordance with its memorandum and articles of association. Pursuant to a support agreement entered into by and
between the Rollover Shareholders and Parent, the Rollover Shareholders have agreed to vote all of the Shares beneficially owned
by them in favor of the Merger Agreement, the Plan of Merger and the Transactions, including the Merger, which Shares represent
approximately 50.2% of the Company’s issued and outstanding Shares.
The Company will make available to its
shareholders a proxy statement (the “Proxy Statement,” a copy of which is attached as Exhibit (a)(1) to this Transaction
Statement), relating to the extraordinary general meeting, at which the Company’s shareholders will consider and vote upon,
among other proposals, a proposal to authorize and approve the Merger Agreement, the Plan of Merger and the Transactions, including
the Merger.
The cross-references below are being supplied
pursuant to General Instruction G to Schedule 13E-3 and show the location in the Proxy Statement of the information required to
be included in response to the items of Schedule 13E-3. Pursuant to General Instruction F to Schedule 13E-3, the information contained
in the Proxy Statement, including all annexes thereto, is incorporated in its entirety herein by this reference, and the responses
to each item in this Schedule 13E-3 are qualified in their entirety by the information contained in the Proxy Statement and the
annexes thereto. Capitalized terms used but not defined in this Transaction Statement shall have the meanings given to them in
the Proxy Statement.
All information
contained in this Transaction Statement concerning each Filing Person has been supplied by such Filing Person. No Filing Person,
including the Company, has supplied any information with respect to any other Filing Person.
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Item 1
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Summary of Term Sheet
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The information set forth in the Proxy Statement
under the following captions is incorporated herein by reference:
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·
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“
Questions and Answers about the Extraordinary General
Meeting and the Merger
”
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Item 2
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Subject Company Information
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(a)
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Name and Address. The information set forth in the Proxy Statement under the following caption
is incorporated herein by reference:
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·
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“
Summary Term Sheet
—The Parties Involved
in the Merger”
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(b)
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Securities. The information set forth in the Proxy Statement under the following captions is incorporated
herein by reference:
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·
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“
The Extraordinary General Meeting
—Record
Date; Shares and ADSs Entitled to Vote”
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·
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“
Security Ownership of Certain Beneficial Owners
and Management of the Company
”
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(c)
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Trading Market and Price. The information set forth in the Proxy Statement under the following
caption is incorporated herein by reference:
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·
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“Market Price of the Company’s ADSs, Dividends
and Other Matters”
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(d)
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Dividends. The information set forth in the Proxy Statement under the following caption is incorporated
herein by reference:
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·
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“
Market Price of the Company’s ADSs, Dividends
and Other Matters
”
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(e)
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Prior Public Offerings. The information set forth in the Proxy Statement under the following caption
is incorporated herein by reference:
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·
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“
Transactions in Shares and ADSs
”
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(f)
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Prior Stock Purchases. The information set forth in the Proxy Statement under the following caption
is incorporated herein by reference:
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·
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“
Transactions in Shares and ADSs
”
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Item 3
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Identity and Background of Filing Persons
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(a)
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Name and Address. Sky-mobi Limited is the subject company. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference:
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·
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“
Summary Term Sheet
—The Parties Involved
in the Merger”
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·
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“
Annex E
—
Directors
and Executive Officers of Each Filing Person
”
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(b)
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Business and Background of Entities. The information set forth in the Proxy Statement under the
following captions is incorporated herein by reference:
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·
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“
Summary Term Sheet
—The Parties Involved
in the Merger”
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·
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“
Annex E—Directors and Executive Officers of
Each Filing Person
”
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(c)
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Business and Background of Natural Persons. The information set forth in the Proxy Statement under
the following captions is incorporated herein by reference:
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·
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“
Summary Term Sheet
—The Parties Involved
in the Merger”
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·
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“
Annex E—Directors and Executive Officers of
Each Filing Person
”
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Item 4
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Terms of the Transaction
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(a)-(1)
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Material Terms—Tender Offers. Not applicable.
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(a)-(2)
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Material Terms—Merger or Similar Transactions. The information set forth in the Proxy Statement
under the following captions is incorporated herein by reference:
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·
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“
Questions and Answers about the Extraordinary General
Meeting and the Merger
”
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·
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“
Special Factors
—Background of the Merger”
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·
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“
Special Factors
—Reasons for the Merger
and Recommendation of the Special Committee and the Board”
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·
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“
Special Factors
—Purposes of and Reasons
for the Merger”
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·
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“
Special Factors
—Support Agreement”
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·
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“
Special Factors
—Interests of Certain
Persons in the Merger”
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·
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“
Special Factors
—Material U.S. Federal
Income Tax Consequences”
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·
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“
The Extraordinary General Meeting
”
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·
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“
The Merger Agreement
”
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·
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“
Annex A—Agreement and Plan of Merger
”
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·
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“Annex B—Plan of Merger”
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(c)
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Different Terms. The information set forth in the Proxy Statement under the following captions
is incorporated herein by reference:
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·
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“
Special Factors
—Interests of Certain
Persons in the Merger”
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·
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“
The Extraordinary General Meeting
—Proposals
to be Considered at the Extraordinary General Meeting”
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·
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“
The Merger Agreement
”
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·
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“
Annex A—Agreement and Plan of Merger
”
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·
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“Annex B—Plan of Merger”
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(d)
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Appraisal Rights. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference:
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·
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“
Summary Term Sheet
— Dissenters’
Rights of Shareholders and ADS Holders”
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·
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“
Questions and Answers about the Extraordinary General
Meeting and the Merger
”
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·
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“Annex D—
CAYMAN
ISLANDS COMPANIES LAW CAP. 22 (LAW 3 OF 1961,AS CONSOLIDATED AND REVISED)—SECTION 238”
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(e)
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Provisions for Unaffiliated Security Holders. The information set forth in the Proxy Statement
under the following caption is incorporated herein by reference:
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·
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“Provisions for Unaffiliated Security Holders”
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(f)
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Eligibility of Listing or Trading. Not applicable.
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Item 5
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Past Contracts, Transactions, Negotiations and Agreements
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(a)
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Transactions. The information set forth in the Proxy Statement under the following captions is
incorporated herein by reference:
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·
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“
Special Factors
—Interests of Certain
Persons in the Merger”
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·
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“
Special Factors
—Related-Party Transactions”
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·
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“Transactions in Shares and ADSs”
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(b)
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Significant Corporate Events. The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
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·
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“
Special Factors
—Background of the Merger”
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·
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“
Special Factors
—Reasons for the Merger
and Recommendation of the Special Committee and the Board”
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·
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“
Special Factors
—Purposes of and Reasons
for the Merger”
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·
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“
Special Factors
—Interests of Certain
Persons in the Merger”
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·
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“
Annex A—Agreement and Plan of Merger
”
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·
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“Annex B—Plan of Merger”
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(c)
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Negotiations or Contacts. The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
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·
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“
Special Factors
—Background of the Merger”
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·
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“
Special Factors
—Interests of Certain
Persons in the Merger”
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·
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“
The Merger Agreement
”
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·
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“
Annex A—Agreement and Plan of Merger
”
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·
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“Annex B—Plan of Merger”
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(e)
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Agreements Involving the Subject Company’s Securities. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference:
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·
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“
Summary Term Sheet
—Plans for the Company
after the Merger”
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·
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“
Summary Term Sheet
—Financing of the
Merger”
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·
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“
Summary Term Sheet
—Contribution Agreement”
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·
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“
Special Factors
—Background of the Merger”
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·
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“Special Factors—
Plans for the Company
after the Merger
”
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·
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“
Special Factors
—Financing of the Merger”
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·
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“
Special Factors
—Contribution Agreement”
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·
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“
Special Factors
—Interests of Certain
Persons in the Merger”
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·
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“
Special Factors
—Voting by the Buyer
Group at the Extraordinary General Meeting”
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·
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“
The Merger Agreement
”
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·
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“
Transactions in Shares and ADSs
”
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·
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“
Annex A—Agreement and Plan of Merger
”
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·
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“Annex B—Plan of Merger”
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Item 6
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Purposes of the Transaction and Plans or Proposals
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(b)
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Use of Securities Acquired. The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
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·
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“Questions and Answers about the Extraordinary General
Meeting and the Merger”
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·
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“
Special Factors
—Purposes of and Reasons
for the Merger”
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·
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“
Special Factors
—Effects of the Merger
on the Company”
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·
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“
The Merger Agreement
”
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·
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“Annex A—Agreement and Plan of Merger”
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·
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“Annex B—Plan of Merger”
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(c)(1)-(8)
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Plans. The information set forth in the Proxy Statement under the following captions is incorporated
herein by reference:
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·
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“
Summary Term Sheet
—The Merger Agreement”
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·
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“
Summary Term Sheet
—Purposes and Effects
of the Merger”
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·
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“
Summary Term Sheet
—Plans for the Company
after the Merger”
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·
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“
Summary Term Sheet
—Financing of the
Merger”
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·
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“
Summary Term Sheet
—Interests of the
Company’s Executive Officers and Directors in the Merger”
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·
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“Special Factors—
Background of the Merger
”
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·
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“
Special Factors
—Reasons for the Merger
and Recommendation of the Special Committee and the Board”
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·
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“
Special Factors
—Purposes of and Reasons
for the Merger”
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·
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“
Special Factors
—Effects of the Merger
on the Company”
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·
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“
Special Factors
—Plans for the Company
after the Merger”
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·
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“
Special Factors
—Financing of the Merger”
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·
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“
Special Factors
—Interests
of Certain Persons in the Merger”
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·
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“Annex A—Agreement and Plan of Merger”
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·
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“Annex B—Plan of Merger”
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Item 7
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Purposes, Alternatives, Reasons and Effects
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(a)
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Purposes. The information set forth in the Proxy Statement under the following captions is incorporated
herein by reference:
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·
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“
Summary Term Sheet
—Purposes and Effects
of the Merger”
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·
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“
Summary Term Sheet
—Plans for the Company
after the Merger”
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·
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“
Special Factors
—Reasons for the Merger
and Recommendation of the Special Committee and the Board”
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·
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“Special Factors—
Purposes of and Reasons
for the Merger
”
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(b)
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Alternatives. The information set forth in the Proxy Statement
under the following captions is incorporated herein by reference:
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·
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“
Special Factors
—Background of the Merger”
|
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·
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“
Special Factors
—Reasons for the Merger
and Recommendation of the Special Committee and the Board”
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·
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“
Special Factors
—Position of the Buyer
Group as to the Fairness of the Merger”
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·
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“
Special Factors
—Purposes of and Reasons
for the Merger”
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·
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“
Special Factors
—Alternatives to the
Merger”
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·
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“Special Factors—
Effects on the Company
if the Merger is not Completed
”
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(c)
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Reasons. The information set forth in the Proxy Statement under the following captions is incorporated
herein by reference:
|
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|
·
|
“
Summary Term Sheet
—Purposes and Effects
of the Merger”
|
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|
·
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“
Special Factors
—Background of the Merger”
|
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·
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“
Special Factors
—Reasons for the Merger
and Recommendation of the Special Committee and the Board”
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·
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“Special Factors—
Position of the Buyer
Group as to the Fairness of the Merger”
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·
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“
Special Factors
—Purposes of and Reasons
for the Merger”
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·
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“
Special Factors
—Effects
of the Merger on the Company”
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(d)
|
Effects. The information set forth in the Proxy Statement under the following captions is incorporated
herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—Purposes and Effects
of the Merger”
|
|
|
·
|
“
Special Factors
—Background of the Merger”
|
|
|
·
|
“
Special Factors
—Reasons for the Merger
and Recommendation of the Special Committee and the Board”
|
|
|
·
|
“
Special Factors
—Effects of the Merger
on the Company”
|
|
|
·
|
“
Special Factors
—Plans for the Company
after the Merger”
|
|
|
·
|
“
Special Factors
—Effects on the Company
if the Merger is not Completed”
|
|
|
·
|
“
Special Factors
—Interests of Certain
Persons in the Merger”
|
|
|
·
|
“Special Factors—
Material U.S. Federal
Income Tax Consequences
”
|
|
|
·
|
“
Special Factors
—Material PRC Income
Tax Consequences”
|
|
|
·
|
“
Special Factors
—Material Cayman Islands
Tax Consequences”
|
|
|
·
|
“
The Merger Agreement
”
|
|
|
·
|
“
Annex A—Agreement and Plan of Merger
”
|
|
|
·
|
“Annex B—Plan of Merger”
|
|
|
Item 8
|
Fairness of the Transaction
|
|
|
(a)-(b)
|
Fairness; Factors Considered in Determining Fairness. The information set forth in the Proxy Statement
under the following captions is incorporated herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—Recommendations
of the Special Committee and the Board”
|
|
|
·
|
“
Summary Term Sheet
—Position of the
Buyer Group as to Fairness”
|
|
|
·
|
“
Summary Term Sheet
—Opinion of the Special
Committee’s Financial Advisor”
|
|
|
·
|
“
Summary Term Sheet
—Interests of the
Company’s Executive Officers and Directors in the Merger”
|
|
|
·
|
“
Special Factors
—Background of the Merger”
|
|
|
·
|
“Special Factors—
Reasons for the Merger
and Recommendation of the Special Committee and the Board
”
|
|
|
·
|
“
Special Factors
—Position of the Buyer
Group as to the Fairness of the Merger”
|
|
|
·
|
“
Special Factors
—Opinions of the Special
Committee’s Financial Advisor”
|
|
|
·
|
“
Special Factors
—Interests of Certain
Persons in the Merger”
|
|
|
·
|
“Annex C—Opinion of Roth Capital Partners,
LLC as Financial Advisor”
|
|
|
(c)
|
Approval of Security Holders. The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—Shareholder Vote
Required to Approve the Merger Agreement and the Plan of Merger”
|
|
|
·
|
“
Questions and Answers about the Extraordinary General
Meeting and the Merger
”
|
|
|
·
|
“The Extraordinary General Meeting—
Vote
Required
”
|
|
|
(d)
|
Unaffiliated Representative. The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
|
|
|
·
|
“
Special Factors
—Background of the Merger”
|
|
|
·
|
“
Special Factors
—Reasons for the Merger
and Recommendation of the Special Committee and the Board”
|
|
|
·
|
“
Special Factors
—Opinions of the Special
Committee’s Financial Advisor”
|
|
|
·
|
“
Annex C—Opinion of Roth Capital Partners,
LLC as Financial Advisor
”
|
|
|
(e)
|
Approval of Directors. The information set forth in the Proxy Statement under the following captions
is incorporated herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—Recommendations
of the Special Committee and the Board”
|
|
|
·
|
“
Special Factors
—Background of the Merger”
|
|
|
·
|
“Special Factors—
Reasons for the Merger
and Recommendation of the Special Committee and the Board
”
|
|
|
(f)
|
Other Offers. The information set forth in the Proxy Statement under the following captions is
incorporated herein by reference:
|
|
|
·
|
“
Special Factors
—Background of the Merger”
|
|
|
·
|
“Special Factors—
Reasons for the Merger
and Recommendation of the Special Committee and the Board
”
|
|
|
Item 9
|
Reports, Opinions, Appraisals and Negotiations
|
|
|
(a)
|
Report, Opinion or Appraisal. The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—Opinions of the
Special Committee’s Financial Advisor”
|
|
|
·
|
“
Special Factors
—Background of the Merger”
|
|
|
·
|
“
Special Factors
—Opinions of the Special
Committee’s Financial Advisor”
|
|
|
·
|
“
Annex C—Opinion of Roth Capital Partners,
LLC as Financial Advisor
”
|
|
|
(b)
|
Preparer and Summary of the Report, Opinion or Appraisal. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference:
|
|
|
·
|
“SPECIAL FACTORS—Background of the Merger”
|
|
|
·
|
“
Special Factors
—Opinions of the Special
Committee’s Financial Advisor”
|
|
|
·
|
“
Annex C—Opinion of Roth Capital Partners,
LLC as Financial Advisor
”
|
|
|
(c)
|
Availability of Documents. The information set forth in the Proxy Statement under the following
caption is incorporated herein by reference:
|
|
|
·
|
“Where You Can Find More Information”
|
The reports,
opinions or appraisals referenced in this Item 9 will be made available for inspection and copying at the principal executive offices
of the Company during its regular business hours by any interested holder of the Shares and ADSs or his, her or its representative
who has been so designated in writing.
|
|
Item 10
|
Source and Amount of Funds or Other Consideration
|
|
|
(a)
|
Source of Funds. The information set forth in the Proxy Statement under the following captions
is incorporated herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—Financing of the
Merger”
|
|
|
·
|
“
Special Factors
—Financing of the Merger”
|
|
|
·
|
“
The Merger Agreement
”
|
|
|
·
|
“
Annex A—Agreement and Plan of Merger
”
|
|
|
·
|
“Annex B—Plan of Merger”
|
|
|
(b)
|
Conditions. The information set forth in the Proxy Statement under the following captions is incorporated
herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—Financing
of the Merger”
|
|
|
·
|
“
Special Factors
—Financing of the Merger”
|
|
|
(c)
|
Expenses. The information set forth in the Proxy Statement under the following caption is incorporated
herein by reference:
|
|
|
·
|
“
Special Factors
—Fees and Expenses”
|
|
|
(d)
|
Borrowed Funds. The information set forth in the Proxy Statement under the following caption is
incorporated herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—Financing of the
Merger”
|
|
|
·
|
“
Special Factors
—Financing of the Merger”
|
|
|
Item 11
|
Interest in Securities of the Subject Company
|
|
|
(a)
|
Securities Ownership. The information set forth in the Proxy Statement under the following captions
is incorporated herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—Interests of the
Company’s Executive Officers and Directors in the Merger”
|
|
|
·
|
“
Special Factors
—Interests of Certain
Persons in the Merger”
|
|
|
·
|
“
Security Ownership of Certain Beneficial Owners
and Management of the Company
”
|
|
|
(b)
|
Securities Transactions. The information set forth in the Proxy Statement under the following caption
is incorporated herein by reference:
|
|
|
·
|
“Transactions in Shares and ADSs”
|
|
|
Item 12
|
The Solicitation or Recommendation
|
|
|
(d)
|
Intent to Tender or Vote in a Going-Private Transaction. The information set forth in the Proxy
Statement under the following captions is incorporated herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—Interests of the
Company’s Executive Officers and Directors in the Merger”
|
|
|
·
|
“
Summary Term Sheet
—Support Agreement”
|
|
|
·
|
“
Questions and Answers about the Extraordinary General
Meeting and the Merger
”
|
|
|
·
|
“
Special Factors
—Support Agreement”
|
|
|
·
|
“
Special Factors
—Voting by the Buyer
Group at the Extraordinary General Meeting”
|
|
|
·
|
“
The Extraordinary General Meeting
—Vote
Required”
|
|
|
·
|
“Security Ownership of Certain Beneficial Owners
and Management of the Company”
|
|
|
(e)
|
Recommendations of Others. The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—Recommendations
of the Special Committee and the Board”
|
|
|
·
|
“
Summary Term Sheet
—Position of the
Buyer Group as to Fairness”
|
|
|
·
|
“
Summary Term Sheet
—Support Agreement”
|
|
|
·
|
“
Special Factors
—Reasons for the Merger
and Recommendation of the Special Committee and the Board”
|
|
|
·
|
“
Special Factors
—Position of the Buyer
Group as to the Fairness of the Merger”
|
|
|
·
|
“
Special Factors
—Support Agreement”
|
|
|
·
|
“The Extraordinary General Meeting—
the
Board’s Recommendation”
|
|
|
Item 13
|
Financial Statements
|
|
|
(a)
|
Financial
Information. The audited financial statements of the Company for the two years ended December 31, 2014 and 2015 are incorporated
herein by reference to the Company’s Form 20-F for the year ended December 31, 2015, originally filed on April 29, 2016
(see page F-1 and following pages). The unaudited financial statements of the Company for the three months ended March 31,
2015, December 31, 2015 and March 31, 2016 are incorporated herein by reference to the Company’s current report on Form
6-K for the first quarter 2016 unaudited financial results filed on May 25, 2016.
|
The information
set forth in the Proxy Statement under the following captions is incorporated herein by reference:
|
|
·
|
“
Financial Information
”
|
|
|
·
|
“
Where You Can Find More Information
”
|
|
|
(b)
|
Pro Forma Information. Not applicable.
|
|
|
Item 14
|
Persons/Assets, Retained, Employed, Compensated or Used
|
|
|
(a)
|
Solicitation or Recommendations. The information set forth in the Proxy Statement under the following
caption is incorporated herein by reference:
|
|
|
·
|
“The Extraordinary General Meeting—
Solicitation
of Proxies
”
|
|
|
(b)
|
Employees and Corporate Assets. The information set forth in the Proxy Statement under the following
captions is incorporated herein by reference:
|
|
|
·
|
“
Summary Term Sheet
—The Parties Involved
in the Merger”
|
|
|
·
|
“
Special Factors
—Interests of Certain
Persons in the Merger”
|
|
|
·
|
“Annex E—Directors and Executive Officers of
Each Filing Person”
|
|
|
Item 15
|
Additional Information
|
|
|
(b)
|
Other Material Information. The information contained in the Proxy Statement, including all annexes
thereto, is incorporated herein by reference.
|
|
|
(a)-(1)
|
Proxy Statement of the
Company dated October 11, 2016 (the “Proxy Statement”).
|
|
|
(a)-(2)
|
Notice of Extraordinary General Meeting of Shareholders of the Company, incorporated herein by
reference to the Proxy Statement.
|
|
|
(a)-(3)
|
Depositary’s Notice, incorporated herein by reference to Annex G to the Proxy Statement.
|
|
|
(a)-(4)
|
Form of Proxy Card, incorporated herein by reference to Annex F to the Proxy Statement.
|
|
|
(a)-(5)
|
Form of ADS Voting Instruction Card, incorporated herein by reference to Annex H to the Proxy Statement.
|
|
|
(a)-(6)
|
Press Release issued by the Company, dated August 22, 2016, incorporated herein by reference to
Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the SEC on August 23, 2016.
|
|
|
(b)-(1)
|
Commitment Letter by and among China Merchants Bank Co., Ltd., New York Branch, Parent and Merger
Sub dated August 22, 2016, incorporated herein by reference to Exhibit 6 to Schedule 13D, as amended, filed with the SEC by the
Rollover Shareholders on August 24, 2016.
|
|
|
(b)-(2)
|
Limited Guarantee by Rollover Shareholders in favor of Sky-mobi Limited, dated as of August 22,
2016, incorporated herein by reference to Exhibit 4 to Schedule 13D, as amended, filed with the SEC by the Rollover Shareholders
on August 24, 2016.
|
|
|
(b)-(3)
|
Support Agreement by and among Parent and Rollover Shareholders, dated as of August 22, 2016, incorporated
herein by reference to Exhibit 5 to Schedule 13D, as amended, filed with the SEC by the Rollover Shareholders on August 24, 2016.
|
|
|
(c)-(1)
|
Opinion of Roth Capital Partners, LLC, dated August 21, 2016, incorporated herein by reference
to Annex C to the Proxy Statement.
|
|
|
(c)-(2)*
|
Discussion Materials
prepared by Roth Capital Partners, LLC for discussion with the special committee of the board of directors of the Company, dated
August 21, 2016.
|
|
|
(d)-(1)
|
Agreement and Plan of Merger, dated as of August 22, 2016, among the Company, Parent and Merger
Sub incorporated herein by reference to Annex A to the Proxy Statement.
|
|
|
(f)-(1)
|
Dissenters’ Rights, incorporated herein by reference to the section entitled “Dissenters’
Rights” in the Proxy Statement.
|
|
|
(f)-(2)
|
Section 238 of the Companies Law Cap. 22 (Law 3 of 1961, as consolidated and revised) of the Cayman
Islands, incorporated herein by reference to Annex D to the Proxy Statement.
|
|
|
*
|
Previously
filed on September 6, 2016.
|
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and correct.
Date: October 11, 2016
|
|
|
By
|
/s/ Wei Zhou
|
|
|
|
Name:
|
Wei Zhou
|
|
|
|
Title:
|
Director, Chairman of the Special
Committee
|
|
|
|
/s/ Michael Tao Song
|
|
|
|
Michael Tao Song
|
|
|
|
By
|
/s/ Michael Tao Song
|
|
|
|
Name:
|
Michael Tao Song
|
|
|
|
Title:
|
Director
|
|
|
|
By
|
/s/ Michael Tao Song
|
|
|
|
Name:
|
Michael Tao Song
|
|
|
|
Title:
|
Director
|
|
|
|
Amber Shining Investment Limited
|
|
|
|
By
|
/s/ Michael Tao Song
|
|
|
|
Name:
|
Michael Tao Song
|
|
|
|
Title:
|
Director
|
|
|
|
By
|
/s/ Michael Tao Song
|
|
|
|
Name:
|
Michael Tao Song
|
|
|
|
Title:
|
Director
|
EXHIBIT
INDEX
|
|
(a)-(1)
|
Proxy Statement of the
Company dated October 11, 2016 (the “Proxy Statement”).
|
|
|
(a)-(2)
|
Notice of Extraordinary General Meeting of Shareholders of the Company, incorporated herein by
reference to the Proxy Statement.
|
|
|
(a)-(3)
|
Depositary’s Notice, incorporated herein by reference to Annex G to the Proxy Statement.
|
|
|
(a)-(4)
|
Form of Proxy Card, incorporated herein by reference to Annex F to the Proxy Statement.
|
|
|
(a)-(5)
|
Form of ADS Voting Instruction Card, incorporated herein by reference to Annex H to the Proxy Statement.
|
|
|
(a)-(6)
|
Press Release issued by the Company, dated August 22, 2016, incorporated herein by reference to
Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the SEC on August 23, 2016.
|
|
|
(b)-(1)
|
Commitment Letter by and among China Merchants Bank Co., Ltd., New York Branch, Parent and Merger
Sub dated August 22, 2016, incorporated herein by reference to Exhibit 6 to Schedule 13D, as amended, filed with the SEC by the
Rollover Shareholders on August 24, 2016.
|
|
|
(b)-(2)
|
Limited Guarantee by Rollover Shareholders in favor of Sky-mobi Limited, dated as of August 22,
2016, incorporated herein by reference to Exhibit 4 to Schedule 13D, as amended, filed with the SEC by the Rollover Shareholders
on August 24, 2016.
|
|
|
(b)-(3)
|
Support Agreement by and among Parent and Rollover Shareholders, dated as of August 22, 2016, incorporated
herein by reference to Exhibit 5 to Schedule 13D, as amended, filed with the SEC by the Rollover Shareholders on August 24, 2016.
|
|
|
(c)-(1)
|
Opinion of Roth Capital Partners, LLC, dated August 21, 2016, incorporated herein by reference
to Annex C to the Proxy Statement.
|
|
|
(c)-(2)*
|
Discussion
Materials prepared by Roth Capital Partners, LLC for discussion with the special committee of the board of directors of the Company,
dated August 21, 2016.
|
|
|
(d)-(1)
|
Agreement and Plan of Merger, dated as of August 22, 2016, among the Company, Parent and Merger
Sub incorporated herein by reference to Annex A to the Proxy Statement.
|
|
|
(f)-(1)
|
Dissenters’ Rights, incorporated herein by reference to the section entitled “Dissenters’
Rights” in the Proxy Statement.
|
|
|
(f)-(2)
|
Section 238 of the Companies Law Cap. 22 (Law 3 of 1961, as consolidated and revised) of the Cayman
Islands, incorporated herein by reference to Annex D to the Proxy Statement.
|
|
|
*
|
Previously
filed on September 6, 2016.
|
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