G64335105
(CUSIP Number)
Newater Technology, Inc.
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Crouching Tiger Holding Limited
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c/o Yantai Jinzheng Eco-Technology Co., Ltd.
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Green Forest Holding Limited
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1 Ruida Road, Laishan District, Yantai City
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Yuebiao Li
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Shandong Province 264003
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Tigerwind Group Limited
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People’s Republic of China
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Pure Blue Holding Limited
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Telephone: (+86) 535-8012911
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Zhuo Zhang
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Gooden Sunrise Holding Limited
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Xiangqian Sui
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Forwater Holdings Limited
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1 Ruida Road, Laishan District, Yantai City
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Shandong Province
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People’s Republic of China
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Telephone: (+86) 535-8012911
Yancoal International (Holding) Co.,
Limited
14/F One Taikoo Place,
979 King’s Road, Quarry Bay
Hong Kong
People’s Republic of China
Telephone: (+86) 537-5384231
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
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With copies to
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MagStone Law, LLP
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DLA Piper
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1001 Avenue of the Americas, Suite 1105
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20th Floor South Tower Beijing Kerry Center
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New York, NY 10018, USA
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No.1 Guanghua Road, Chaoyang District
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Attention: Yue (Mark) Li, Esq.
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Beijing 100020, PRC
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Facsimile: +1 (347) 934-9333
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Attention: James Chang, Esq.
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Email: markli@magstonelaw.com
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Facsimile: +86 10 8520 0700
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Email: james.chang@dlapiper.com
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This statement is filed in connection with (check the appropriate
box):
☐
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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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☐
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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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$20,472,850
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$2,233.59
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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 the aggregate cash payment for the proposed per share cash payment of $3.65 for 5,609,000 issued and outstanding common shares of the issuer subject to the transaction (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 2021, was calculated by multiplying the Transaction Valuation by 0.0001091.
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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: N/A
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Form or Registration No.: N/A
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Filing Party: N/A
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Date Filed: N/A
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Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of this transaction, passed upon the merits or fairness
of this transaction, or passed upon the adequacy or accuracy of the disclosure in this transaction statement on Schedule 13E-3.
Any representation to the contrary is a criminal offense.
INTRODUCTION
This Amendment No.
3 (this “Amendment”) to 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 Section 13(e) of the Securities Exchange Act of 1934, as amended, jointly by the following persons (each, a “Filing Person,”
and collectively, the “Filing Persons”): (a) Newater Technology, Inc., a company with limited liability incorporated
under the laws of the British Virgin Islands (the “Company”), the issuer of the registered common shares, par value
of US$$0.001 per share (each, a “Share” and collectively, the “Shares”); (b) Crouching Tiger Holding Limited,
an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Parent”); (c) Green
Forest Holding Limited, a company with limited liability incorporated under the laws of the British Virgin Islands, all of the
issued and outstanding shares of which are owned by the Parent (the “Merger Sub”); (d) Mr. Yuebiao Li, the Company’s
chairman of the board of directors, and chief executive officer (“Mr. Li”); (e) Tigerwind Group Limited, a company
with limited liability incorporated under the laws of the British Virgin Islands and an investment holding company wholly owned
and controlled by Mr. Li; (f) Pure Blue Holding Limited, a company with limited liability incorporated under the laws of the British
Virgin Islands and an investment holding company wholly owned and controlled by Mr. Li; (g) Ms. Zhuo Zhang, the Company’s
Vice Chairman of the board of directors, and chief financial officer (“Ms. Zhang”); (h) Gooden Sunrise Holding Limited,
a company with limited liability incorporated under the laws of the British Virgin Islands and an investment holding company wholly
owned and controlled by Ms. Zhang; (i) Mr. Xiangqian Sui (“Mr. Sui”); (j) Forwater Holdings Limited, a company with
limited liability incorporated under the laws of the British Virgin Islands and an investment holding company wholly owned and
controlled by Mr. Sui; and (k) Yancoal International (Holding) Co., Limited, a private company limited by shares organized under
the laws of the Hong Kong Special Administration Region.
This Amendment amends
and supplements certain information set forth in the Transaction Statement. This Amendment does not restate the Transaction Statement
in its entirety, and the amended and supplemental disclosures contained herein should be read in conjunction with the Transaction
Statement, including the Proxy Statement.
All capitalized terms
used in this Amendment and not otherwise defined have the meanings ascribed to such terms in the Transaction Statement, including
the Proxy Statement attached as exhibit (a)-(1) to the Transaction Statement.
All information contained
in this Amendment 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. Capitalized terms used but not defined in this Amendment
shall have the meanings given to them in the Transaction Statement.
Amendment to the
Transaction Statement
The
following paragraphs are added after the last paragraph under the heading “Background of the Merger” under the caption
“Special Factors” of the Proxy Statement, beginning on page 27 of the Proxy Statement:
“On
February 22, 2021, the independent committee received an unsolicited, preliminary, and non-binding acquisition proposal letter
from Fulcan Capital Partners LLC, a Nevada limited liability company (“Fulcan”), to acquire all outstanding ordinary
shares of the Company at a purchase price of US$4.90 per share (the “Fulcan Proposal”), which proposal letter is intended
as a competing offer to the proposed going-private transaction contemplated in the agreement and plan of merger dated as of September
29, 2020 (the “merger agreement”) among the Parent, the Merger Sub and the Company. In its proposal letter, Fulcan
noted that it intends to finance the transaction with “debt and/or equity capital,” and that it expects the proposed
transaction to be completed by the end of the second quarter of 2021.
On
February 23, 2021, the independent committee held a telephonic meeting with MagStone. At the meeting, the independent committee
discussed with MagStone the Fulcan Proposal and the independent committee’s obligations with respect to the Fulcan Proposal.
The independent committee concluded that it needs additional information to conduct a meaningful review and evaluation of the Fulcan
Proposal and instructed MagStone to contact Fulcan’s counsel and obtain additional information on the Fulcan Proposal. Later
that day, MagStone, on behalf of the independent committee, made inquiries to YK Law LLP, Fulcan’s counsel (“Fulcan’s
Counsel”), via email on certain matters relating to the Fulcan Proposal, including, without limitation, the shareholding
history of Fulcan and its affiliates in the Company and proof of the source of funding for the purchase price.
On
February 24, 2021, Fulcan’s Counsel provided MagStone with an email response. In particular, Fulcan’s Counsel noted
that Fulcan had received a one-page letter of intent (the “LOI”) from its purported lender, Zhongcai Guofa Urban Construction
Investment Fund (Beijing) Co. Ltd (the “Purported Lender”), a “state-owned investment fund with an interest
in environmental technologies” (emphasis added). The LOI indicates that the Purported Lender expects to provide Fulcan with
approximately US$50 million in the form of a secured loan to finance the proposed transaction. Fulcan’s Counsel noted that,
to the extent necessary, members of Fulcan are prepared to use their own funds to contribute at least US$10 million to finance
the transaction. Fulcan’s Counsel noted that Fulcan, together with a member of Fulcan, holds a total of 143,500 shares of
the Company. These shares constitute approximately 1.3% of all outstanding shares of the Company.
On
February 27, 2021, the independent committee held a telephonic meeting with MagStone and Ogier. During the meeting, Ogier reviewed
with three members of the independent committee in length the fiduciary duties of the independent committee with respect to the
Fulcan Proposal. Ogier reminded the members of the independent committee that each member must at all times (a) act honestly, independently
and in good faith with a view towards the best interests of the Company and all of its shareholders (i.e., not just the interests
of the shareholders that are members of the buyer group, but also the interests of the minority shareholders), and (b) must not
fetter his or her exercise of the director’s discretion by agreeing to vote on a matter in any predetermined way or in accordance
with the directions of any third party. Among other things, Ogier noted to the members of the independent committee that each of
them must (i) exercise his or her powers as an independent director for the purposes for which they are given and act in accordance
with the responsibilities and other obligations set forth in the charter of the independent committee, the applicable provisions
under the memorandum and articles of association of the Company, and all applicable laws and regulations, (ii) exercise the care,
diligence and skill that a responsible director would exercise under the circumstances, taking into account all relevant factors,
(iii) carefully review all terms and conditions of the proposed transactions, (iv) act impartially and in good faith, and not be
unduly influenced by any party (including that from the buyer group), (v) ensure and maintain its independence and impartiality
at all times, and (vi) keep a good record of its decision-making process.
MagStone
noted to the independent committee that the Purported Lender’s company registration records indicate that (i) its registered
scope of business specifically prohibits the Purported Lender from making loans, and (ii) the Purported Lender’s registered
shareholders are two natural persons contrary to the statement made by Fulcan’s Counsel that the Purported Lender is owned
by the state. The independent committee discussed potential concerns over the legality and feasibility of the LOI and the Fulcan
Proposal and concluded that the independent committee should obtain further analysis from PRC counsel. In addition, the independent
committee reviewed, among other things, (a) the purchase price of $4.90 per share proposed by Fulcan, (b) the likelihood of Fulcan’s
obtaining majority shareholders’ approval of its proposed transaction, (c) the likelihood of Fulcan’s obtaining regulatory
approval for its plan for financing the proposed transaction, (d) potential costs and other risks to the Company that may be associated
with the Fulcan Proposal, including the payment of a termination fee to the Parent, and (e) potential impact on the Company’s
business prospects if the Fulcan Proposal is accepted. The independent committee instructed MagStone to request additional information
from Fulcan’s Counsel, pending further PRC legal analysis.
On
March 2, 2021, Beijing S&P (Yantai) Law Firm (“PRC Counsel”) provided the independent committee with a written
analysis, stating that the financing arrangement presented by Fulcan may violate PRC laws and presents material regulatory risks.
On
the same day, Fulcan sent another email to the independent committee, demanding that the independent committee take certain actions
with respect to the Fulcan Proposal. On March 2, 2021, MagStone emailed Fulcan’s Counsel requesting clarification on, among
other things, the legality of the LOI. In a March 4, 2021 email response, Fulcan’s Counsel (i) stated that “[a]fter
consulting with our Chinese counsel, we believe that the purported lending by [Purported Lender] does not violate Chinese law if
it is properly structured,” and (ii) provided, by way of an example, an arrangement involving a loan from a subsidiary
of the Purported Lender to a to-be-formed Fulcan secondary PRC subsidiary (the “Fulcan Sub”) and, in turn, the application
by the Fulcan Sub for regulatory approval for using the proceeds of the loan to finance the proposed transaction, which arrangement,
Fulcan’s Counsel claims, has been done in “a number of” past going-private transactions. As to the apparent discrepancy
between the official records and Fulcan’s Counsel’s statement with respect to the Purported Lender’s ownership,
Fulcan’s Counsel states that “[w]e have sought further information from [Purported Lender], due to the esoteric
nature of the investment fund regulatory regime. We are informed that whilst the Purported Lender has state enterprises
background, it chose to register as a private investment company owned by individuals for specific reasons” (emphasis
added). Fulcan’s Counsel did not elaborate what it meant by “state enterprises background,” whether the Purported
Lender having “state enterprises background” is synonymous to its being “state-owned” as previously claimed,
or what the “specific reasons” entail. Nor did it identify which state-owned entities are owners of the Purported Lender
despite having been requested to provide evidence supporting its previous claim that the Purported Lender is state-owned.
On
March 5, 2021, PRC Counsel provided a written report analyzing the proposal and information provided by Fulcan’s Counsel.
PRC Counsel noted that, among other things, (i) the Fulcan Sub would be prohibited under PRC laws from using the proceeds of the
loan from a subsidiary of the Purported Lender to finance the proposed transaction, and (ii) the Fulcan Sub must have been in legal
existence for more than one year before it can finance the proposed transaction. PRC Counsel concluded that the financing plan
as proposed lacks feasibility and would have little chance of receiving regulatory approval.
On
the same day, the independent committee held a meeting with MagStone, Ogier and PRC Counsel to review the additional information
provided by Fulcan’s Counsel and PRC Counsel’s written report. The independent committee concluded that the Fulcan
Proposal presents material legal risks and lacks feasibility, and that the opaque arrangement with respect to the Purported Lender’s
ownership presents an additional layer of risk, casting doubt on the credibility, feasibility and legality of the Fulcan’s
Proposal. Based on its careful consideration of various aspects of the Fulcan Proposal, the independent committee unanimously determined
that it is in the best interests of the Company and its shareholders to reject the Fulcan Proposal as currently proposed, and to
continue to recommend the Company’s unaffiliated shareholders to authorize and approve the merger agreement, the plan of
merger and the transactions contemplated thereby, including the merger.
In
a subsequent meeting of the Company’s board of directors, the recommendation of the independent committee was adopted as
the recommendation of the entire board of directors.”
SIGNATURES
After reasonable 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.
Dated: March 8, 2021
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Newater Technology, Inc.
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By:
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/s/ Yuebiao Li
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Name:
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Yuebiao Li
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Title:
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Director
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Crouching Tiger Holding Limited
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By:
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/s/ Yuebiao Li
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Name:
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Yuebiao Li
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Title:
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Director
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Green Forest Holding Limited
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By:
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/s/ Yuebiao Li
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Name:
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Yuebiao Li
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Title:
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Director
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Yuebiao Li
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By:
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/s/ Yuebiao Li
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Name:
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Yuebiao Li
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[Signature
Page to Schedule 13E-3/A (Newater Technology, Inc.)]
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Tigerwind Group Limited
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By:
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/s/ Yuebiao Li
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Name:
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Yuebiao Li
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Title:
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Director
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Pure Blue Holding Limited
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By:
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/s/ Yuebiao Li
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Name:
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Yuebiao Li
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Title:
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Director
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[Signature
Page to Schedule 13E-3/A (Newater Technology, Inc.)]
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Zhuo Zhang
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By:
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/s/ Zhuo Zhang
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Name:
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Zhuo Zhang
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Gooden Sunrise Holding Limited
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By:
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/s/ Zhuo Zhang
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Name:
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Zhuo Zhang
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Title:
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Director
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[Signature
Page to Schedule 13E-3/A (Newater Technology, Inc.)]
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Xiangqian Sui
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By:
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/s/ Xiangqian Sui
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Name:
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Xiangqian Sui
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Forwater Holdings Limited
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By:
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/s/ Xiangqian Sui
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Name:
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Xiangqian Sui
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Title:
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Director
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[Signature
Page to Schedule 13E-3/A (Newater Technology, Inc.)]
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Yancoal International (Holding) Co., Limited
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By:
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/s/ Jian Liu
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Name:
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Jian Liu
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Title:
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Director
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[Signature
Page to Schedule 13E-3/A (Newater Technology, Inc.)]
8
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