As filed with the Securities and Exchange
Commission on September 2, 2014
Registration
No. 333-
UNITED STATES SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Xinyuan Real Estate Co., Ltd.
(Exact name of registrant as specified in
its charter)
Cayman Islands |
N/A |
(State or other jurisdiction of
incorporation
or organization) |
(IRS Employer Identification No.) |
|
|
27/F,
China Central Place, Tower II
79 Jianguo Road, Chaoyang District
Beijing 100025
People's
Republic of China |
N/A |
(Address of Principal Executive
Offices) |
(Zip Code) |
XINYUAN REAL ESTATE CO., LTD. 2014 RESTRICTED STOCK UNIT PLAN
(Full title of the plan)
CT
Corporation System
111
Eighth Avenue
New
York, NY 10011
(Name and address of
agent for service)
(212)
894-8940
(Telephone number, including area code,
of agent for service)
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer o |
Accelerated filer x |
Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
Title
of securities to be registered |
Amount
to be
registered
(2) |
Proposed
maximum offering price per share (3) |
Proposed
maximum aggregate offering price (3) |
Amount
of
registration fee |
Common
Shares (1) |
10,000,0000
shares |
$1.79 |
$17,900,000 |
$2,306 |
(1) These common shares
may be represented by American Depository Shares, or ADSs. The ADSs issuable upon deposit of the common shares registered hereby
have been registered under a separate registration statement on Form F-6 (Registration No. 333-147530). Each ADS represents two
common shares.
(2) Pursuant to Rule 416(a)
under the Securities Act, this Registration Statement shall also cover any additional shares of the Registrant’s Common
Share that become issuable under the Xinyuan Real Estate Co., Ltd. 2014 Restricted Stock Unit Plan by reason of any stock dividend,
stock split, recapitalization or other similar transaction.
(3) Pursuant to Rules 457(c)
and 457(h) under the Securities Act of 1933, as amended, computed based upon the average of the high and low prices of the Xinyuan
Real Estate Co., Ltd. common shares represented by ADSs as reported on the New York Stock Exchange on August 26, 2014.
PART
i
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Not filed as part of this Registration Statement
pursuant to the Note to Part I of Form S-8. The document(s) containing the information specified
in this Item has been or will be sent or given to participants as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the “Securities Act”).
| Item 2. | Registrant
Information and Employee Plan Annual Information |
Not filed as part of this Registration Statement
pursuant to the Note to Part I of Form S-8. The document(s) containing the information specified
in this Item has been or will be sent or given to participants as specified by Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
| Item 3. | Incorporation of Documents by Reference |
The following documents which have heretofore
been filed by Xinyuan Real Estate Co., Ltd. (the "Registrant") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference herein
and shall be deemed to be a part hereof:
| · | the descriptions of our common shares and our ADSs contained in our Form F-1 Registration Statement filed with the SEC on November
16, 2007 (Registration Statement No. 333-147477); |
| · | the Registrant's Annual Report on Form 20-F for the fiscal year ended December 31, 2013 filed with the Commission on April
25, 2014 (File No. 001-33863); and |
| · | the Registrant's Form 6-Ks furnished to the Commission on January 24, 2014, January 28, 2014, February
12, 2014, February 13, 2014 (both Form 6-Ks furnished on such date), February 26, 2014, February 28, 2014, May 16, 2014, June 30,
2014, August 15, 2014 and August 27, 2014 (File No. 001-33863). |
The Registrant also incorporates by reference
all subsequent annual reports on Form 20-F that it files with the Commission and any reports on Form 6-K that the Registrant furnishes
to the Commission after the date of filing of this registration statement that state that they are incorporated by reference into
this registration statement until the Registrant files a post-effective amendment indicating that the offering of the securities
made pursuant to this Registration Statement has been terminated or completed.
Any statement contained in a document that
is incorporated by reference will be modified or superseded for all purposes to the extent that a statement contained in this Registration
Statement or prospectus hereunder, or in any other document that is subsequently filed with the Commission and incorporated by
reference, modifies or is contrary to that previous statement. Any statement so modified or superseded will not be deemed a part
of this Registration Statement or any prospectus hereunder except as so modified and superseded. In other words, in the case of
a conflict or inconsistency between information contained in this Registration Statement or any prospectus hereunto and information
incorporated by reference therein, you should rely on the information contained in the document that was filed later.
| Item 4. | Description of Securities |
Not applicable
| Item 5. | Interests of Named Experts and Counsel |
Not applicable
| Item 6. | Indemnification of Directors and Officers |
Cayman Islands law. Cayman Islands
law does not limit the extent to which a company’s articles of association may provide for indemnification of officers and
directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such
as to provide indemnification against civil fraud or the consequences of committing a crime.
Memorandum and Articles of Association.
The Registrant's articles of association provide for indemnification of officers and directors for losses, damages, costs and expenses
incurred in their capacities as such, except through their own fraud or willful default.
Indemnification Agreements. Pursuant
to indemnification agreements, the Registrant has agreed to indemnify its directors and officers against certain liabilities and
expenses incurred by such persons in connection with claims made by reason of their being such a director or officer.
Commission Position. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable.
| Item 7. | Exemption from Registration Claimed |
Not Applicable
The following
is a list of exhibits filed or incorporated by reference as part of this registration statement.
Exhibit No. |
|
Description |
10.1 |
|
Xinyuan Real Estate Co., Ltd. 2014 Restricted Stock Unit Plan (incorporated by reference to Exhibit 99.1 to the Company's Form 6-K filed on August 27, 2014 (SEC File No. 001-33863)) |
|
|
|
23.1 |
|
Consent of Ernst & Young Hua Ming LLP |
|
|
|
24.1 |
|
Powers of Attorney (contained on the signature page) |
(a) The Registrant hereby
undertakes:
(1) To file, during
any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
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 a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) shall not apply if 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 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, 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 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 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefits plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant
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 all of the requirements for filing
on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in Beijing, People's Republic of China, on September 2, 2014.
|
XINYUAN REAL ESTATE CO., LTD. |
|
|
|
|
|
|
By: |
/s/ Xinqi Wang |
|
|
Name: |
Xinqi Wang |
|
|
Title: |
Chief Executive Officer and Director |
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS,
that each person whose signature appears below does hereby constitute and appoint Yong Zhang and Yong Cui, or each one of them,
as such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such
person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments and post-effective
amendments to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agents, and each of them, 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 that person might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or any substitute therefor 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 indicated as of September 2,
2014.
Signatures |
|
Title |
|
|
|
/s/ Xinqi Wang
Xinqi Wang |
|
Chief Executive Officer and Director
(Principal Executive Officer) |
|
|
|
/s/ Manbo He
Manbo He |
|
Chief Financial Officer (Principal
Financial Officer) |
|
|
|
/s/ Helen Zhang
Helen Zhang |
|
Financial Controller (Principal
Accounting Officer) |
|
|
|
/s/ Yong Zhang
Yong Zhang |
|
Chairman, Board of Directors |
|
|
|
/s/ Huai Chen
Huai Chen |
|
Director |
|
|
|
/s/ Yong Cui
Yong Cui |
|
Director and President |
_____________
Thomas Gurnee |
|
Director |
|
|
|
/s/ Yinfei Hao
Yinfei Hao |
|
Director and Executive Vice President |
|
|
|
/s/ Yumin Liang
Yumin Liang |
|
Director |
|
|
|
/s/ Steve Sun
Steve Sun |
|
Director |
|
|
|
/s/ Thomas Wertheimer
Thomas Wertheimer |
|
Director |
|
|
|
/s/ Anthony J. Walton
Anthony J. Walton |
|
Director |
|
|
|
_____________
Yuyan Yang |
|
Director |
SIGNATURE OF AUTHORIZED REPRESENTATIVE
OF THE REGISTRANT
Pursuant to the Securities Act, the undersigned,
the duly authorized representative in the United States of the Registrant, has signed this Registration Statement or amendment
thereto in Newark, Delaware, USA on September 2, 2014.
|
PUGLISI & ASSOCIATES |
|
|
|
|
|
|
By: |
/s/ Donald J. Puglisi |
|
|
Name: |
Donald J. Puglisi |
|
|
Title: |
Managing Director |
|
EXHIBIT INDEX
Exhibit No. |
|
Description |
10.1 |
|
Xinyuan Real Estate Co., Ltd. 2014 Restricted Stock Unit Plan (incorporated by reference to Exhibit 99.1 to the Company's Form 6-K filed on August 27, 2014 (SEC File No. 001-33863)) |
|
|
|
23.1 |
|
Consent of Ernst & Young Hua Ming LLP |
|
|
|
24.1 |
|
Powers of Attorney (contained on the signature page) |
Exhibit 23.1
Consent of Independent Registered Public
Accounting Firm
We consent to the incorporation by reference
in the Registration Statement (Form S-8) pertaining to the Xinyuan Real Estate Co., Ltd. 2014 Restricted Stock Unit Plan of our
reports dated April 25, 2014, with respect to the consolidated financial statements of Xinyuan Real Estate Co., Ltd. and the effectiveness
of internal control over financial reporting of Xinyuan Real Estate Co., Ltd. included in its Annual Report (Form 20-F) for the
year end December 31, 2013, filed with the Securities and Exchange Commission.
/s/ Ernst & Young Hua Ming LLP
Beijing, People’s Republic of China
September 2, 2014
Xinyuan Real Estate (NYSE:XIN)
Historical Stock Chart
From Jun 2024 to Jul 2024
Xinyuan Real Estate (NYSE:XIN)
Historical Stock Chart
From Jul 2023 to Jul 2024