Unassociated Document
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM S-8
 
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

SUBAYE, INC.
(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction of
incorporation
or organization)
  
35-2089848
(I.R.S. Employer Identification No.)

9/F., Beijing Business World
56 East Xinglong Street
Chongwen District
Beijing, China 100062
(Address of Principal Executive Offices)

Subaye, Inc.  2010 Omnibus Long-Term Incentive Plan
(Full title of plan)

Zhiguang Cai
9/F., Beijing Business World
56 East Xinglong Street
Chongwen District
Beijing, China 100062
(Name and address of agent for service)

(86) 10-67026968
 (Telephone number, including area code, of agent for service)

With a copy to:
Robert S. Matlin
Robert Shin
K&L Gates LLP
599 Lexington Avenue
New York, NY 10022
212-536-3900

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
¨
Accelerated filer
¨
Non-accelerated filer
¨ (Do not check if a smaller reporting company)
Smaller reporting company
þ
 
CALCULATION OF REGISTRATION FEE

Title of securities
to be registered
  
Amount to be
registered(1)
    
Proposed
maximum offering
price
per share(2)
    
Proposed maximum
aggregate
offering price(2)
    
Amount of
registration
fee(2)
  
Common Stock, par value $.001 per share
     900,000     $ 8.445     $ 7,600,500.00     $ 541.92  

(1)
Pursuant to Rules 416(a) and (b) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of the Registrant’s common stock that becomes issuable under the 2010 Omnibus Long-Term Incentive Plan as set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of the Registrant’s common stock.

(2)
Estimated solely for the purposes of calculating the registration fee pursuant to Securities Act Rules 457(c) and 457(h).  The proposed maximum offering price per share, proposed maximum aggregate price and the amount of the registration fee are based on the average of the high and low prices of the registrant’s common stock reported on NASDAQ on August 30, 2010.
 
 
 

TABLE OF CONTENTS
 
   
Page
  
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
      
       
Item 1.                      Plan Information.
  
1
  
Item 2.                      Registrant Information and Employee Plan Annual Information.
  
1
  
       
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
      
       
Item 3.                      Incorporation of Documents by Reference.
  
1
  
Item 4.                      Description of Securities.
  
2
  
Item 5.                      Interests of Named Experts and Counsel.
  
2
  
Item 6.                      Indemnification of Directors and Officers.
  
2
  
Item 7.                      Exemption from Registration Claimed.
  
3
  
Item 8.                      Exhibits.
  
3
  
Item 9.                      Undertakings.
  
3
  
       
SIGNATURES
      
       
Exhibit 4.1                               Subaye, Inc. 2010 Omnibus Long-Term Incentive Plan.
      
Exhibit 5.1                               Opinion of K&L Gates LLP.
      
Exhibit 23.1                             Consent of K&L Gates LLP (included in the opinion filed as Exhibit 5.1).
      
Exhibit 23.2                             Consent of Independent Registered Public Accounting Firm.
      
 
 
(i)
 

Part I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Item 1.  Plan Information.

The documents containing the information specified in this Item 1 will be sent or given to employees as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”).  Such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.  These documents and the documents incorporated by reference in the registration statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
 
Item 2. Registrant Information and Employee Plan Annual Information.
 
The documents containing the information specified in this Item 2 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

Part II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.  Incorporation of Documents by Reference.

Subaye, Inc. (the “Registrant”) is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith files reports and other information with the Commission.  The following documents, which are on file with the Commission, are incorporated herein by reference and made a part hereof:

 1.
The Registrant’s Annual Report on Form 10-K for the fiscal year ended September 30, 2009, filed with the Commission on December 29, 2009.

 2.
The Registrant’s Quarterly Reports on Form 10-Q for the three months ended December 31, 2009, filed with the Commission on February 16, 2010; for the three months ended March 31, 2010, filed with the Commission on May 17, 2010; for the three months ended June 30, 2010, filed with the Commission on August 16, 2010; and on Form 10-Q/A for the three months ended December 31, 2009, filed with the Commission on August 25, 2010.
 
3.
The Registrant’s Current Reports on Form 8-K, filed with the Commission on October 21, 2009, October 23, 2009, November 2, 2009, November 6, 2009, November 10, 2009, November 12, 2009, November 13, 2009, November 17, 2009, November 20, 2009, November 30, 2009, March 9, 2010, March 17, 2010, April 19, 2010, May 5, 2010, June 3, 2010, June 30, 2010 and on Form 8-K/A, filed with the Commission on August 25, 2010.
 
4.
The description of the Registrant's Common Stock contained in the Registrant's registration statement on Form 8-A filed with the Commission on March 15, 2010, including any amendments or reports filed for the purpose of updating that description.
 
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement which indicated that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.  Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

 
1
 

Item 4. Description of Securities.

Not applicable.
 
Item 5. Interests of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

Section 145 of Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement in connection with specified actions, suits and proceedings whether civil, criminal, administrative, or investigative, other than a derivative action by or in the right of the corporation, if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification extends only to expenses, including attorneys’ fees, incurred in connection with the defense or settlement of such action and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s certificate of incorporation, bylaws, disinterested director vote, stockholder vote, agreement, or otherwise.

The Registrant’s certificate of incorporation provides that, pursuant to Delaware law, its directors shall not be liable for monetary damages for breach of the directors’ fiduciary duty of care to the Registrant and its stockholders. This provision in the certificate of incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law.  In addition, each director will continue to be subject to liability for breach of the director’s duty of loyalty to the Registrant or its stockholders, for acts or omissions not in good faith or involving intentional misconduct or knowing violations of the law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law.  The provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.

The Registrant has been advised that in the opinion of the Securities and Exchange Commission, insofar as indemnification for liabilities arising under the Securities Act may be permitted to the Registrant’s directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event a claim for indemnification against such liabilities (other than the Registrant’s payment of expenses incurred or paid by the Registrant’s director, officer or controlling person 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 of whether such indemnification by the Registrant is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

The Registrant may enter into indemnification agreements with each of its directors and officers that are, in some cases, broader than the specific indemnification provisions permitted by Delaware law, and that may provide additional procedural protection. The Registrant has not entered into any indemnification agreements with its directors or officers, but may choose to do so in the future. Such indemnification agreements may require the Registrant, among other things, to:

·
indemnify officers and directors against certain liabilities that may arise because of their status as officers or directors;

·
advance expenses, as incurred, to officers and directors in connection with a legal proceeding, subject to limited exceptions; or
 
 
2
 

·
obtain directors’ and officers’ insurance.
 
At present, there is no pending litigation or proceeding involving any of the Registrant’s directors, officers or employees in which indemnification is sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification.
     
See also the undertakings set out in response to Item 9 hereof.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

 Exhibit
Numbers
  
Description
     
4.1
  
Subaye, Inc. 2010 Omnibus Long-Term Incentive Plan
5.1
  
Opinion of K&L Gates LLP
23.1
  
Consent of K&L Gates LLP (included in the opinion filed as Exhibit 5.1)
23.2
  
Consent of Independent Registered Public Accounting Firm
24.1
  
Power of Attorney (included on signature page)

Item 9. Undertakings
 
(a)
The undersigned Registrant hereby undertakes:

 
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i)
To include any prospectus required by section 10(a)(3) of the Securities Act  of 1933;

(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and

(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

provided, however, that: paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.

 
3
 

 (2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
 
 
4
 
 
SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Beijing, People’s Republic of China, on this 8th day of September, 2010.
                          
SUBAYE, INC.
 
By:
/s/ Zhiguang Cai
 
Zhiguang Cai
 
Chief Executive Officer

POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Zhiguang Cai and James T. Crane and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission and any other regulatory authority, granting unto said attorney-in-fact and agent, power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
   
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

Signature
  
Title
  
Date
/s/  Zhiguang Cai
  
Chief Executive Officer and Director
  
September 8, 2010
Zhiguang Cai
  
(Principal Executive Officer) 
    
         
/s/  James T. Crane
  
Chief Financial Officer (Principal
  
September 8, 2010
James T. Crane
  
Financial and Accounting Officer)
    
         
/s/ Alan R. Lun
  
Director
  
September 8, 2010
 Alan R. Lun
        
         
/s/  Qimei Liu
  
Director
  
September 8, 2010
Qimei Liu
        
         
/s/  Jinliu Deng
  
Director
  
September 8, 2010
Jinliu Deng
        
         
/s/  Larry G. Schafran
  
Director
  
September 8, 2010
Larry G. Schafran