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May 6,
2019
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Mark L.
Johnson
mark.johnson@klgates.com
T +1
617 261 3260
F +1
617 261 3175
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Securities
and Exchange Commission
Division
of Corporation Finance
100 F.
Street, N.E.
Washington,
DC 20549
Attention: Jeanne
Bennett and Gary Todd
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Re:
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ACM
Research, Inc.
File
No. 001-38273
Annual
Report on Form 10-K for the Fiscal Year Ended December 31,
2018
Quarterly
Report on Form 10-Q for the Quarterly Period Ended September
30, 2018
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Ladies
and Gentlemen:
We are
submitting this letter on behalf of ACM Research, Inc. (the
“Company”), in
response to comments from the staff (the “Staff”) of the Securities and
Exchange Commission (the “Commission”) received by letter
dated April 18, 2019 with respect to the Company’s
Form 10-K for the fiscal year ended December 31, 2018
(the “2018
Form 10-K”) and Form 10-Q for the quarterly
period ended March 31, 2019.
For
convenience, we have set forth below, in italicized, bold type, the
enumerated written comments provided in the Staff’s letter to
the Company dated April 18, 2019. The response of the Company to
each comment is set forth immediately following the
comment.
K&L
GATES LLP
STATE
STREET FINANCIAL CENTER ONE LINCOLN STREET BOSTON MA
02111
T +1
617 261 3100 F +1 617 261 3175 klgates.com
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1
Form 10-K for the Fiscal Year Ended December 31,
2018
Item 15. Exhibits and Financial Statement Schedules, page
100
1.
We note that your Form 10-K does not include the required
certifications. Please file a complete amendment of the
Form 10-K, including the full text of Exhibits 31 and 32.
Refer to Item 601 of Regulation S-K and Exchange Act Rule
13a-14.
The
Company acknowledges the Staff’s comment and the need to file
the required certifications as Exhibits 31 and 32. The Company
prepared, and the appropriate officers executed, the required
certifications in connection with the filing of the 2018 Form 10-K.
Due to a financial printer’s error, those certifications were
not included as exhibits to the 2018 Form 10-K.
Management’s
report on internal control over financial reporting was included in
Item 9A of the 2018 Form 10-K, and therefore no changes to the
body of the 2018 Form 10-K are required in connection with the
filing of the required certifications. The Company believes that
the filing of a restatement of the entire Form 10-K without
any changes in the text of the body is not necessary or desirable
because it would not further investor understanding and may in fact
create investor confusion regarding the purpose of the filing.
Accordingly, the Company respectfully requests that it be permitted
to file the required certifications in an exhibits-only amendment
to the 2018 Form 10-K, rather than as part of an amendment
restating the entire 2018 Form 10-K.
We note
that references to certain of the exhibits incorporated by
reference into the 2018 Form 10-K inadvertently were not
hyperlinked to the filings of those exhibits. The Company will
correct that oversight contemporaneously with the filing of the
required certifications.
Form 10-Q for the Quarterly Period Ended September 30,
2018
Item 6. Exhibits, page 39
2.
We note that the officer certifications do not include the
language referring to internal control over financial reporting
that should appear in the introductory sentence of paragraph 4 and
paragraph 4(b). Please amend the filing to include the correct
certifications. You may file an abbreviated amendment that includes
a cover page, explanatory note, signature page and paragraphs 1, 2,
4 and 5 of the certification. Refer to Exchange Act Rule 13a-14(a)
and Item 601(b)(31) of Regulation S-K. This comment also applies to
your Forms 10-Q for the quarters ended March 31, 2018 and June
30, 2018.
Pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a) under the
Securities Act of 1934, the Company was first required to include a
report by management on the effectiveness of its internal control
over financial reporting in the 2018 Form 10-K.
Rules 13a-14(a) and 15d-14(a) provide that “[t]he principal
executive and principal financial officers of an issuer may omit
the portion of the introductory language in paragraph 4 as well as
language in paragraph 4(b) of the certification that refers to the
certifying officers’ responsibility for designing,
establishing and maintaining internal control over financial
reporting for the issuer until the issuer becomes subject to the
internal control over financial reporting requirements in
§240.13a-15 or §240.15d-15.”
2
The Commission provided
further guidance on this issue in Release
No. 33-8760 (December 15, 2006), stating that “the
introductory language in paragraph 4 as well as language in
paragraph 4(b) of the certification required by Exchange Act Rules
13a-14(a) and 15d-14(a) that refers to the certifying
officers’ responsibility for designing, establishing and
maintaining internal control over financial reporting for the
company … is required to be provided in the first annual
report required to contain management’s internal control
report and
in all periodic reports filed thereafter” (emphasis
added).
Accordingly, the
Company believes the officer
certifications for its Quarterly Reports on Form 10-Q for
quarterly periods prior to March 31, 2019 – that is, periodic
reports filed prior to the filing of the 2018 Form 10-K – are
not required to include language referring to internal control over
financial reporting.
In
confirming the Company’s understanding of the applicability
and interpretation of Rules 13a-14(a) and
15d-14(a), we identified several comment letters issued by
the Staff to other issuers (including those letters identified on
Annex A)
with respect to officer certifications omitting language referring
to internal control over financial reporting officer to other
public companies. In each of these comment letters, the
Staff’s comment related to periodic reports filed
after the issuer’s
first Annual Report on Form 10-K required to contain
management’s report on internal control report over financial
reporting, which in each case was the issuer’s second Annual
Report on Form 10-K filed with the Commission. The Staff did
not instruct such issuers to, and such issuers did not, amend any
Quarterly Reports on Form 10-Q filed prior to such second
Annual Report, including any Quarterly Report on Form 10-Q for
a quarterly period covered by the issuer’s second Annual
Report on Form 10-K. The Company understands that these prior
examples are not binding precedents with respect to the Company,
but the Company believes the other comment letters evidence the
clear meaning of Rules 13a-14(a) and
15d-14(a).
The Company respectfully requests that the Staff reconsider its
instruction that the Company file amendments to its Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2018,
June 30, 2018, and September 30, 2018 to include language relating
to internal control over financial reporting in the introductory
sentence of paragraph 4 and paragraph 4(b) of its officer
certifications.
*
* *
Please
do not hesitate to contact me at (617) 261-3260 if you have
any questions or would like additional information regarding this
matter.
Very
truly yours,
/s/
Mark L. Johnson
Mark L.
Johnson
cc:
David H. Wang, ACM
Research, Inc.
Lisa Feng, ACM
Research, Inc.
Mark K. McKechnie,
ACM Research, Inc.
3
Annex A
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Issuer
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Date of Commission Correspondence
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Anaptysbio
Inc.
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September
7, 2018
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Audentes
Therapeutics, Inc.
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August
6, 2018
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Cidara
Therapeutics, Inc.
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December
7, 2017
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Sorrento
Tech, Inc.
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September
25, 2017
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Aduro
Biotech, Inc.
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July
19, 2017
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4