As filed with the Securities and Exchange Commission on May 3, 2019
Registration No. 333‑230195
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 2 TO
FORM S‑3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AquaVenture Holdings Limited
(Exact name of registrant as specified in its charter)
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British Virgin Islands |
4941 |
98-1312953 |
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(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
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‑8636
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c/o Conyers Corporate Services (BVI) Limited
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Anthony Ibarguen
British Virgin Islands VG1110 (813) 855‑8636 |
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(Address, including zip code and telephone number, including area code, of Registrant’s principal executive offices) |
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(Name, address, including zip code, and telephone number, including area code, of agent for service) |
Copies to:
Mark H. Burnett, Esq.
Michael J. Minahan, Esq.
Gregg L. Katz, Esq.
Goodwin Procter LLP
100 Northern Ave.
Boston, Massachusetts 02210
(617) 570‑1000
Approximate date of commencement of proposed sale to the public : From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b‑2 of the Exchange Act. (Check one):
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Large accelerated filer |
☐ |
Accelerated filer |
☒ |
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Non-accelerated filer |
☐ |
Smaller reporting company |
☒ |
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Emerging growth company |
☒ |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☒
CALCULATION OF REGISTRATION FEE
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Title of Each Class of
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Amount
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Proposed
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Proposed
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Amount of
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Ordinary Shares |
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Preferred Shares |
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Debt Securities |
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Warrants |
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Units (6) |
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Total |
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$250,000,000 |
$30,300 |
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(1) |
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An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may be sold from time to time at indeterminate prices, with the maximum aggregate offering price of all securities sold pursuant to this registration statement not to exceed $250,000,000. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are issued in units. Any separate consideration received for securities that are issuable upon exercise, conversion, or exchange of other securities or that are issued in units is included in, and subject to, the maximum aggregate offering price of all securities sold pursuant to this registration statement of $250,000,000.The proposed maximum aggregate offering price of each class of securities will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of securities pursuant to the General Instruction II.D. of Form S‑3 under the Securities Act of 1933. |
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(2) |
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The proposed maximum offering price per unit is not applicable in that these securities are not issued in predetermined amounts or units. |
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(3) |
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The proposed maximum aggregate offering price of each class of securities will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of securities pursuant to the General Instruction II.D. of Form S 3 under the Securities Act of 1933. |
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(4) |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933. In no event will the aggregate offering price of all securities sold by the registrant from time to time pursuant to this Registration Statement exceed $250,000,000. |
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(5) |
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A fee of $30,300 was previously paid on March 11, 2019. Subject to the maximum aggregate offering price of all securities sold hereunder set forth above, there is being registered hereunder an indeterminate number of ordinary shares as may from time to time be sold at indeterminate prices hereunder, and an indeterminate number of ordinary shares as may from time to time be issued upon conversion of convertible securities and upon exercise of warrants, which may be sold hereunder. |
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(6) |
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Each unit will be issued under a unit agreement and will represent an interest in two or more securities, which may or may not be separable from one another. |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Commission acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
AquaVenture Holdings Limited (the “Company”) is filing this Amendment No. 2 to our Registration Statement on Form S-3 (File No. 333-230195) for the sole purpose of (i) filing Exhibits 5.1 and 5.2 with the U.S. Securities and Exchange Commission and (ii) updating the Legal Matters section to read as follows:
Certain legal matters with respect to British Virgin Islands law in connection with the validity of the securities being offered by this prospectus and other legal matters will be passed upon for us by Conyers Dill & Pearman. Certain legal matters with respect to United States law in connection with this offering will be passed upon for us by Goodwin Procter LLP, Boston, Massachusetts. Any underwriters will also be advised about the validity of the securities and other legal matters by their own counsel, which will be named in the prospectus supplement.
1
Part II—INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits
EXHIBIT INDEX
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Exhibit
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Exhibit Index |
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5.1 |
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5.2 |
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24.1 |
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II-1
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‑3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, on the Island of Tortola, British Virgin Islands, on May 3, 2019.
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AquaVenture Holdings Limited |
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By: |
/s/ Anthony Ibarguen |
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Anthony Ibarguen |
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Chief Executive Officer |
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 May 3, 2019.
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Signature |
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Title |
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/s/ Anthony Ibarguen |
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Chief Executive Officer, President and Director |
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Anthony Ibarguen |
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(Principal Executive Officer) |
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/s/ * |
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Chief Financial Officer, Treasurer and Secretary |
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Lee S. Muller |
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(Principal Financial and Accounting Officer) |
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/s/ * |
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Chairman of the Board |
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Douglas R. Brown |
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/s/ * |
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Director |
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Evan Lovell |
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/s/ * |
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Director |
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Hugh Evans |
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/s/ * |
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Director |
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Paul Hanrahan |
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/s/ * |
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Director |
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Debra Coy |
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/s/ * |
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Director |
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Cyril Meduña |
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/s/ * |
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Director |
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Richard Reilly |
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/s/ * |
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Director |
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David Lincoln |
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* |
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*By: |
/s/ Anthony Ibarguen |
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Anthony Ibarguen |
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Attorney-in-Fact |
II-2
2 May, 2019
Matter No.: 956268
Doc. Ref. 15494483v1
284-852-1111
audrey.robertson@conyersdill.com
AquaVenture Holdings Limited
Commerce House
Wickhams Cay I
Road Town, Tortola
British Virgin Islands
Dear Sirs,
Re: Securities Being Registered under Registration Statement on Form S-3 of AquaVenture Holdings Limited (the “Company”)
We have acted as special counsel in the British Virgin Islands to the Company in connection with its filing of a Registration Statement on Form S-3 (the “ Registration Statement ”) pursuant to the Securities Act of 1933, as amended (the “ Securities Act ”) relating to the shelf registration of the Company’s ordinary shares (the “ Ordinary Shares ”), preferred shares (the “ Preferred Shares ”), debt securities (the “ Debt Securities ”), warrants (the “ Warrants ”) and units (the “ Units ” and, together with the Ordinary Shares, Preferred Shares, Debt Securities and Warrants, the “ Securities” ).
We have also reviewed the memorandum of association and the articles of association of the Company, and a company search as obtained from the Registrar of Corporate Affairs on 24 April, 2019, resolutions in writing signed by all of the directors of the Company and dated 22 September, 2016 (the “ Resolutions ”), a certificate of good standing issued by the Registrar of Corporate Affairs and dated 25 April, 2019, a certificate issued by Conyers Trust Company (BVI) Limited in its capacity as registered agent to the Company and dated 24 April, 2019 (the “ Registered Agent’s Certificate ”) and the register of members of the Company, attached to the Registered Agent’s Certificate, the books and records of the Company maintained by Conyers Corporate Services (BVI) Limited in its capacity as company secretary of the Company as at the date hereof and such other documents and made such enquiries as to questions of law as we have deemed necessary in order to render the opinion set forth below.
We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other than the British Virgin Islands. This opinion is to be governed by and construed in accordance with the laws of the British Virgin Islands and is limited to and is given on the basis of the current law and practice in the British Virgin Islands. This opinion is issued solely for the purposes of filing the Registration Statement and the issuance of the Shares by the Company as described in the Registration Statement and is not to be relied upon in respect of any other matter.
For purposes of the opinion set forth below, we have assumed that a sufficient number of authorized but unissued Ordinary Shares and/or Preferred Shares will be available for issuance, as applicable, when such Ordinary Shares or Preferred Shares are issued.
Upon the due issuance of Ordinary Shares and/or the Preferred Shares and payment of the consideration therefor, such Ordinary Shares and/or Preferred Shares will be validly issued, fully paid and non-assessable.
The Company is validly existing, has the power to create Debt Securities and has taken the required steps to authorize entering into the Debt Securities under the laws of the British Virgin Islands.
Upon the due issuance, execution and delivery the Units of any series by the Company and payment of the legal consideration therefor, such Units will constitute legal, valid and binding obligations of the Company in accordance with the terms thereof.
We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement and to the references to our firm in the prospectus forming a part of the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Yours faithfully,
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/s/ Conyers Dill & Pearman |
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Conyers Dill & Pearman
EXHIBIT 5.2
May 3, 2019
AquaVenture Holdings Limited
Commerce House
Wickhams Cay I
Road Town, Tortola
British Virgin Islands
Re: Securities Being Registered under Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-3 (File No. 333-230195) (as amended or supplemented, the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering by AquaVenture Holdings Limited, a Delaware corporation (the “Company”), of up to $250,000,000 of any combination of (i) ordinary shares, no par value, of the Company (the “Ordinary Shares”), (ii) preferred shares of the Company (the “Preferred Shares”) , (iii) debt securities of the Company (“Debt Securities”), (iv) warrants to purchase Ordinary Shares, Preferred Shares , and/or Debt Securities (“Warrants”) , and (v) units comprised of Ordinary Shares, Preferred Shares, Debt Securities and Warrants in any combination (“Units”). The Ordinary Shares, Preferred Shares, Debt Securities, Warrants and Units are sometimes referred to collectively herein as the “Securities.” The Securities may be issued in an unspecified number (with respect to Ordinary Shares, Preferred Shares, Warrants and Units) or in an unspecified principal amount (with respect to Debt Securities). The Registration Statement provides that the Securities may be offered separately or together, in separate series, in amounts, at prices and on terms to be set forth in one or more prospectus supplements (each a “Prospectus Supplement”) to the prospectus contained in the Registration Statement.
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.
The opinions set forth below are limited to the Delaware General Corporation Law and the law of New York.
For purposes of the opinions set forth below, without limiting any other exceptions or qualifications set forth herein, we have assumed that (i) each of the Debt Securities and Warrants, and the indentures, warrant agreements and other agreements governing the Securities offered pursuant to the Registration Statement will be governed by the internal law of New York, (ii) after the issuance of any Securities offered pursuant to the Registration Statement, the total number of issued shares of Common Stock or Preferred Stock, as applicable, together with the total number of shares of such stock issuable upon the exercise, exchange, conversion or settlement, as the case may be, of any exercisable, exchangeable or convertible security
AquaVenture Holdings Limited
May 3, 2019
Page 2
(including without limitation any Unit), as the case may be, then outstanding, will not exceed the total number of authorized shares of Ordinary Shares or Preferred Shares, as applicable, available for issuance under the Company’s certificate of incorporation as then in effect (the “Charter”) and (iii) the Company is validly existing, has the power to create Debt Securities, and has taken the required steps to authorize entering into the obligation under the Debt Securities under the law of the British Virgin Islands.
For purposes of the opinions set forth below, we refer to the following as the “Future Authorization and Issuance” of Securities:
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with respect to Debt Securities, (a) the authorization, execution and delivery of the indenture or a supplemental indenture relating to such Securities by the Company and the trustee thereunder and/or (b) the establishment of the terms of such Securities by the Company in conformity with the applicable indenture or supplemental indenture and applicable law, and (c) the execution, authentication and issuance of such Securities in accordance with the applicable indenture or supplemental indenture and applicable law; and |
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with respect to Warrants, (a) the authorization, execution and delivery by the Company and the other parties thereto of any agreement under which such Securities are to be issued, and (b) the establishment of the terms of such Securities and the issuance of such Securities in conformity with those terms, the terms of any applicable agreement and applicable law. |
Based upon the foregoing, and subject to the additional qualifications set forth below, we are of the opinion that:
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1. Upon the Future Authorization and Issuance of Debt Securities, such Debt Securities will be valid and binding obligations of the Company. |
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2. Upon the Future Authorization and Issuance of Warrants, such Warrants will be valid and binding obligations of the Company. |
The opinions expressed above are subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity.
This opinion letter and the opinions it contains shall be interpreted in accordance with the Legal Opinion Principles issued by the Committee on Legal Opinions of the American Bar Association’s Business Law Section as published in 53 Business Lawyer 831 (May 1998).
We hereby consent to the inclusion of this opinion as Exhibit 5.2 to the Registration Statement and to the references to our firm under the caption “Legal Matters” in the Registration
AquaVenture Holdings Limited
May 3, 2019
Page 3
Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Very truly yours,
/s/ Goodwin Procter LLP