As filed with the Securities
and Exchange Commission on August 22, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM F-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
TANTECH HOLDINGS LTD
(Exact name of registrant as specified
in its charter)
British Virgin Island
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Not Applicable
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(State or other jurisdiction
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(I.R.S. Employer
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of incorporation or organization)
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Identification No.)
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c/o Zhejiang
Tantech Bamboo Technology Co., Ltd.
No. 10 Cen Shan
Road, Shuige Industrial Zone, Lishui City, Zhejiang Province 323000
People’s
Republic of China
+86 (578) 226-2305
(Address, including
zip code, and telephone number, including area code, of registrant’s
principal executive offices)
CT Corporation System
111 Eighth Avenue
New York, New York 10011
(800) 624-0909
(Name, address including
zip code, and telephone number, including area code, of agent for
service)
With a copy to:
Jiannan Zhang, Esq.
Cadwalader, Wickersham & Taft LLP
79 Jianguo Road, China Central Place
Tower 2-2301,
Beijing, P. R. China 100035
FAX: 86-10-6599-7300
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of this registration statement as determined by the registrant.
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.
x
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 filed 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.
¨
CALCULATION
OF REGISTRATION FEE
Title
of each class of
securities
to be
registered
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Amount
to
be
registered(1)(2)(3)
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Proposed
maximum
aggregate
price
per
unit(3)
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Proposed
maximum
aggregate
offering
price(3)(4)(5)
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Amount
of
registration
fee(3)
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Common Shares, par value US$0.01 per
share
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—
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—
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—
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—
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Preference Shares, par value US$0.01 per share
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Depositary Shares(6)
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—
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—
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—
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—
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Debt Securities
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—
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—
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—
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—
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Warrants
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—
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—
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—
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—
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Rights
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—
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—
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—
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—
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Units(7)
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—
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—
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—
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—
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TOTAL
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—
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—
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$
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150,000,000
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$
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15,105
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(1)
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Also
includes an indeterminate aggregate principal amount and number of securities of each
identified class of securities up to a proposed aggregate offering price of $150,000,000,
which may be offered by the Registrant from time to time in unspecified numbers and at
indeterminate prices, and as may be issued upon conversion, redemption, repurchase, exchange
or exercise of any securities registered hereunder, including under any applicable anti-dilution
provisions. Except as provided in Rule 426(b) under Securities Act of 1933, in no
event will the aggregate offering price of all types of securities issued by the Registrant
pursuant to this registration statement exceed $150,000,000.
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(2)
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Pursuant
to Rule 416 under the Securities Act of 1933, this registration statement also covers
any additional securities that may be offered or issued in connection with any share
split, share dividend or similar transaction.
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(3)
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Pursuant
to General Instruction II.C. of Form F-3, the table lists each of the classes
of securities being registered and the aggregate proceeds to be raised, but does not
specify by each class information as to the amount to be registered, proposed maximum
offering price per unit, and proposed maximum aggregate offering price.
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(4)
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The
proposed maximum aggregate offering price has been estimated solely to calculate the
registration fee in accordance with Rule 457(o) under the Securities Act of 1933.
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(5)
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Includes
consideration to be received by the registrant, if applicable, for registered securities
that are issuable upon exercise, conversion or exchange of other registered securities.
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(6)
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To
be represented by depositary receipts representing an interest in all or a specific portion
of a common share.
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(7)
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Consisting
of some or all of the securities listed above, in any combination, including common shares,
debt securities and warrants.
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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 or until the registration statement shall become effective on such
date as the Commission acting pursuant to said section 8(a), may determine
.
The information in this prospectus is not
complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting offers to buy these securities
in any state where the offer or sale is not permitted.
Subject to Completion,
dated August 22, 2016
PROSPECTUS
$150,000,000
TANTECH HOLDINGS LTD
Common shares
Preference Shares
Depositary Shares
Debt Securities
Warrants
Rights
Units
We may offer to sell, from time to time,
in one or more offerings: common shares; preference shares, depositary shares; debt securities; warrants to purchase common shares,
preference shares, depositary shares, or debt securities; rights to purchase common shares, preference shares, depositary shares,
debt securities, warrants or other securities; and units of debt securities, common shares, preference shares, depositary shares,
rights or warrants, in any combination. We may also offer any of these securities that may be issuable upon the conversion, exercise
or exchange of debt securities, rights or warrants.
The aggregate offering price of the securities
issued under this prospectus may not exceed $150,000,000. The prices and other terms of the securities that we will offer will
be determined at the time of their offering and will be described in a supplement to this prospectus.
This prospectus provides a general description
of the securities we may offer. We will provide the specific terms of the securities offered in one or more supplements to this
prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings.
You should read carefully this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well
as any documents incorporated by reference before you invest in any of our securities.
This prospectus may not be used to offer
or sell any securities unless accompanied by the applicable prospectus supplement.
The securities issued under this prospectus
may be offered directly or through underwriters, agents or dealers. The names of any underwriters, agents or dealers will be included
in a supplement to this prospectus.
Investing in our securities being
offered pursuant to this prospectus involves a high degree of risk. You should carefully read and consider the risk factors
beginning on page 8 of this prospectus, as well as those included in the periodic and other reports we file with the
Securities and Exchange Commission before you make your investment decision.
Neither the Securities and Exchange Commission,
any United States state securities commission, the British Virgin Island Monetary Authority, nor any state securities commission
has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
The date of this prospectus is _______,
2016
TABLE OF CONTENTS
You should rely only on the information contained or incorporated
by reference in this prospectus or any prospectus supplement. We have not authorized any person to provide you with different or
additional information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus
is not an offer to sell securities, and it is not soliciting an offer to buy securities in any jurisdiction where the offer or
sale is not permitted. You should assume that the information appearing in this prospectus or any prospectus supplement, as well
as information we have previously filed with the SEC and incorporated by reference, is accurate as of the date on the front of
those documents only. Our business, financial condition, results of operations and prospects may have changed since those dates.
PROSPECTUS SUMMARY
This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission (SEC) using a “shelf” registration process. Under
this shelf registration process, we may offer from time to time, in one or more offerings, securities having an aggregate initial
offering price of up to $150,000,000 (or its equivalent in foreign or composite currencies). This prospectus provides you with
a general description of the securities that may be offered. Each time we offer securities under this shelf registration statement,
we will provide you with a prospectus supplement that describes the specific amounts, prices and terms of the securities being
offered. The prospectus supplement also may add, update or change information contained in this prospectus. You should read carefully
both this prospectus and any prospectus supplement together with additional information described below under the caption “Where
You Can Find More Information,” before making an investment decision. We have incorporated exhibits into this registration
statement. You should read the exhibits carefully for provisions that may be important to you.
Industry data and other statistical information
used in this prospectus, any applicable prospectus supplement, any related free writing prospectus and any document incorporated
by reference into this prospectus are based on independent publications, reports by market research firms or other published independent
sources. Some data are also based on our good faith estimates, derived from our review of internal surveys and the independent
sources listed above. Although we believe these sources are reliable, we have not independently verified the information.
You should rely only on the information contained
or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized any person to provide you
with different or additional information. If anyone provides you with different or inconsistent information, you should not rely
on it. This prospectus is not an offer to sell securities, and it is not soliciting an offer to buy securities in any jurisdiction
where the offer or sale is not permitted. You should assume that the information appearing in this prospectus or any prospectus
supplement, as well as information we have previously filed with the SEC and incorporated by reference, is accurate as of the date
on the front of those documents only. Our business, financial condition, results of operations and prospects may have changed since
those dates.
We may sell securities through underwriters
or dealers, through agents, directly to purchasers or through a combination of these methods. We and our agents reserve the sole
right to accept or reject, in whole or in part, any proposed purchase of securities. The prospectus supplement, which we will provide
to you each time we offer securities, will set forth the names of any underwriters, agents or others involved in the sale of securities
and any applicable fee, commission or discount arrangements with them. See the information described below under the heading “Plan
of Distribution.”
THIS PROSPECTUS MAY NOT BE USED TO SELL
ANY SECURITIES UNLESS ACCOMPANIED BY THE APPLICABLE PROSPECTUS SUPPLEMENT.
This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
You should not assume that the information in this prospectus or a prospectus supplement is accurate as of any date other than
the date on the front of the document.
Except as otherwise indicated by the context,
references in this prospectus to:
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“we,” “us,”
“our company,” “our” and “Tantech” refer to
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Tantech Holdings Ltd,
a British Virgin Islands company limited by shares (formerly Sinoport Enterprises Limited) (“THL” when individually
referenced);
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USCNHK Group Limited,
a Hong Kong limited company (“USCNHK” when individually referenced), which is a wholly owned subsidiary of THL;
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Zhejiang Tantech Bamboo
Technology Co., Ltd, a PRC company (“Bamboo Tech”), which is a 95%-owned subsidiary of USCNHK, the remaining 5% of
Bamboo Tech being held by five individual PRC residents;
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Zhejiang Tantech Bamboo
Charcoal Co., Ltd, a PRC company (“Tantech Charcoal”), which is a wholly owned subsidiary of Bamboo Tech; and
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Zhejiang Tantech Energy
Technology Co., Ltd, a PRC company (“Energy Tech”), which is a wholly owned subsidiary of Bamboo Tech.
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all references to “RMB,”
“Renminbi” and “¥” are to the legal currency of China and all references to “USD,” “U.S.
dollars,” “dollars,” and “$” are to the legal currency of the United States; and
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“China”
and “PRC” refer to the People’s Republic of China, and for the purpose of this prospectus only, excluding Taiwan,
Hong Kong and Macau.
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INFORMATION REGARDING FORWARD-LOOKING
STATEMENTS; CAUTIONARY LANGUAGE
This prospectus, any applicable prospectus supplement, any related
free writing prospectus and any document incorporated by reference into this prospectus contain, or will contain, forward-looking
statements within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform
Act of 1995, or the PSLRA. In addition, we, or our executive officers on our behalf, may from time to time make forward-looking
statements in reports and other documents we file with the SEC or in connection with oral statements made to the press, potential
investors or others. Forward-looking statements include all statements that are not statements of historical facts and may relate
to, but are not limited to, expectations or estimates of future operating results or financial performance, capital expenditures,
regulatory compliance, plans for growth and future operations, as well as assumptions relating to the foregoing. In some cases,
you can identify forward-looking statements by terminology such as “may,” “will,” “should,”
“could,” “expect,” “plan,” “anticipate,” “believe,” “estimate,”
“predict,” “intend,” “potential,” “continue” or the negative of these terms or
other similar terminology. Although we do not make forward-looking statements unless we believe we have a reasonable basis for
doing so, we cannot guarantee their accuracy, and actual results may differ materially from those we anticipated due to a number
of uncertainties, many of which cannot be foreseen. Our actual results could differ materially from those anticipated in these
forward-looking statements for many reasons, including, but not limited to, the risks and uncertainties described in the section
entitled “Risk Factors” in this prospectus, in any applicable prospectus supplement, any related free writing prospectus
and in any document incorporated by reference into this prospectus.
We believe that it is important to communicate our future expectations
to potential investors. However, there may be events in the future that we are not able to accurately predict or control and that
may cause actual events or results to differ materially from the expectations expressed in or implied by our forward-looking statements.
The risks and uncertainties described in the section entitled “Risk Factors” in this prospectus, in any applicable
prospectus supplement, any related free writing prospectus and in any document incorporated by reference into this prospectus provide
examples of risks, uncertainties and events that may cause our actual results to differ materially from the expectations we describe
in our forward-looking statements. Before you invest in our securities, you should be aware that the occurrence of these risks
and uncertainties could negatively impact, among other things, our business, cash flows, results of operations, financial condition
and share price. Potential investors should not place undue reliance on our forward-looking statements.
Forward-looking statements regarding our present plans or expectations
for sales, supply contracts, purchases, sources and availability of financing, and growth involve risks and uncertainties relative
to return expectations and related allocation of resources, and changing economic or competitive conditions, as well as the negotiation
of agreements with suppliers and customers, which could cause actual results to differ from present plans or expectations, and
such differences could be material. Similarly, forward-looking statements regarding our present expectations for operating results
and cash flow involve risks and uncertainties related to factors such as utilization rates, material prices, demand for products
by our customers, supply and other factors described in the section entitled “Risk Factors” in this prospectus, in
any applicable prospectus supplement, any related free writing prospectus and in any document incorporated by reference into this
prospectus, which would also cause actual results to differ from present plans. Such differences could be material.
All future written and oral forward-looking statements attributable
to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred
to in this section. Forward-looking statements speak only as of the date the statements are made. New risks and uncertainties arise
from time to time, and we cannot predict those events or how they may affect us. We assume no obligation to, and do not plan to,
update any forward-looking statements as a result of new information, future events or developments, except as required by U.S.
federal securities laws. You should read this prospectus, any applicable prospectus supplement, any related free writing prospectus
and any document incorporated by reference into this prospectus with the understanding that we cannot guarantee future results,
levels of activity, performance or achievements and that actual results may differ materially from what we expect. The forward-looking
statements contained in this prospectus, any applicable prospectus supplement, any related free writing prospectus and any document
incorporated by reference into this prospectus are excluded from the safe harbor protection provided by the PSLRA.
ABOUT OUR COMPANY
We
develop and manufacture bamboo-based charcoal products for industrial energy applications and household cooking, heating, purification,
agricultural and cleaning uses. We have grown over the past decade to become a pioneer in charcoal products industry made from
carbonized bamboo. We are a highly specialized high-tech enterprise producing, researching and developing bamboo charcoal based
products with an established domestic and international sales and distribution network. On May 2, 2016, we entered
into an agreement to acquire Suzhou E Motors Co, a specialty electric vehicles manufacturer based in Zhangjiagang City, Jiangsu
Province and we intend to gradually transform ourselves from a bamboo-based charcoal products producer to a vertically integrated
company along the EDLC Carbon –power battery – specialty new energy vehicle value chain.
We provide our products in the following
areas:
We oversee a national sales network that
has a presence in 17 cities throughout China. We sell approximately 85% of our products in China, and the remaining 15% of products
are sold internationally. We sell products in Japan, South Korea, the United States, and Europe.
In addition to our bamboo charcoal products,
we also derive revenues from our trading activities, which primarily relate to industrial purchases and sales of charcoal.
RISK FACTORS
Before making an investment decision, you
should carefully consider the risks described under “Risk Factors” in the applicable prospectus supplement and in our
then most recent Annual Report on Form 20-F, or included in any Annual Report on Form 20-F filed with the SEC after the date of
this prospectus or Reports on Form 6-K furnished to the SEC after the date of this prospectus, together with all of the other information
appearing in this prospectus or incorporated by reference into this prospectus and any applicable prospectus supplement, in light
of your particular investment objectives and financial circumstances. Please see “Where You Can Find More Information”
on how you can view our SEC reports and other filings. Our business, financial condition or results of operations could be materially
adversely affected by any of these risks. The trading price of our securities could decline due to any of these risks, and you
may lose all or part of your investment. When we offer and sell any securities pursuant to a prospectus supplement, we may include
additional risk factors that you should carefully consider.
The risks and uncertainties described in
this prospectus, any applicable prospectus supplement, any related free writing prospectus and any document incorporated by reference
into this prospectus are not the only ones that we face. Additional risks and uncertainties that we do not presently know about
or that we currently believe are not material may also adversely affect our business. If any of the risks and uncertainties described
in this prospectus, any applicable prospectus supplement, any related free writing prospectus and any document incorporated by
reference into this prospectus actually occur, our business, financial condition and results of operations could be materially
and adversely affected. The value of our securities could decline and you may lose some or all of your investment if one or more
of these risks and uncertainties develop into actual events. Keep these risk factors in mind when you read forward-looking statements
contained in this prospectus, any applicable prospectus supplement, any related free writing prospectus and any document incorporated
by reference into this prospectus.
RATIO OF EARNINGS TO FIXED CHARGES
The following
table sets forth our historical ratio of earnings to fixed changes for the periods indicated.
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Fiscal Year Ended December 31,
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2015
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2014
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2013
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2012
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Ratio of earnings to fixed charges(1)(2)
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27.11
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31.56
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14.07
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59.46
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(1)
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For purposes of computing this ratio: (a) earnings
consist of income before taxes plus fixed charges and (b) fixed charges consist of interest expense, amortization of deferred
debt issuance costs, realized losses (gains) on interest rate swaps and caps, net, interest expense portion of rental expense
and impact of fixed charges on net income attributable to the non-controlling interest.
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(2)
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To the extent any update to the ratio of earnings to fixed
charges is required, they will each be specified in a prospectus supplement or in a document we file with the SEC and incorporated
reference pertaining to the issuance, if any, by us of debt securities in the future.
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USE OF PROCEEDS
Unless otherwise set forth in the applicable
prospectus supplement, we intend to use the net proceeds of any offering of securities for working capital and other general corporate
purposes, which may include the repayment or refinancing of outstanding indebtedness and the financing of future acquisitions.
We may have significant discretion in the use of any net proceeds. The net proceeds may be invested temporarily in interest-bearing
accounts and short-term interest-bearing securities until they are used for their stated purpose. We may provide additional information
on the use of the net proceeds from the sale of the offered securities in an applicable prospectus supplement relating to the offered
securities.
GENERAL DESCRIPTION OF THE SECURITIES
WE MAY OFFER
We may issue from time to time, in one
or more offerings the following securities:
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warrants to purchase
common shares, preference shares, depositary shares or debt securities;
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rights to purchase common
shares, preference shares, depositary shares, debt securities, warrants or other securities; and
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units of debt securities,
preference shares, common shares, depositary shares, rights or warrants, in any combination.
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This prospectus contains a summary of the
material general terms of the various securities that we may offer. The specific terms of the securities will be described in a
prospectus supplement, information incorporated by reference, or free writing prospectus, which may be in addition to or different
from the general terms summarized in this prospectus. Where applicable, the prospectus supplement, information incorporated by
reference or free writing prospectus will also describe any material United States federal income tax considerations relating to
the securities offered and indicate whether the securities offered are or will be listed on any securities exchange. The summaries
contained in this prospectus and in any prospectus supplements, information incorporated by reference or free writing prospectus
may not contain all of the information that you would find useful. Accordingly, you should read the actual documents relating to
any securities sold pursuant to this prospectus. See “Where You Can Find More Information” and “Incorporation
of Certain Information by Reference” for information about how to obtain copies of those documents.
The terms of any particular offering, the
initial offering price and the net proceeds to us will be contained in the applicable prospectus supplement, information incorporated
by reference or free writing prospectus, relating to such offering.
DESCRIPTION OF SHARE CAPITAL
THL was incorporated on November 9, 2010
under the BVI Companies Act, 2004 as a company limited by shares under the name “Sinoport Enterprises Limited.” On
April 15, 2013, Sinoport Enterprises Limited changed its name to “Tantech Holdings Ltd.” As of November
21, 2014, THL was authorized to issue up to 50,000,000 common shares with a par value of $0.001 per share. Other than the completion
on November 25, 2014 of the simultaneous (a) 1,000-for-1 split of its common shares and (b) pro-rata redemption for par value and
cancellation of 600 of such shares (30,000,000 in total), there have been no change in the amount of issued capital or the number
and classes of shares which it composed, during the last three years. The directors of THL, however, are authorized
by the memorandum and articles of association to create and issue further classes of shares on such terms and in such manner as
they may determine in their sole discretion at any time.
Options
Incentive Securities Pool
We have established a pool for shares and
share options for our employees following the completion of this offering. This pool will contain shares and options to purchase
our common shares. This pool will contain shares and options to purchase 2,160,000 of our common shares subject to outstanding
share options or reserved for issuance under our share incentive plan. We may grant options or shares in any percentage determined
for a particular grant.
Any options granted will vest at a rate
of 20% per year for five years and have a per share exercise price equal to the fair market value of one of our common shares on
the date of grant. We expect to grant shares and/or options under this pool to certain employees as of the closing of this offering.
Any options granted as of the closing of this offering will have an exercise price per common share equal to the offering price.
We have not yet determined the recipients of any such grants.
The following are summaries of the material
provisions of our amended memorandum and articles of association that will be in force at the time of the closing of this offering
and the BVI Act, insofar as they relate to the material terms of our common shares. The forms of our amended memorandum and articles
of association are filed as exhibits to the registration statement of which this prospectus is a part.
Common Shares
All of our issued common shares are fully
paid and non-assessable. Certificates representing the common shares are issued in registered form. Our shareholders who are non-residents
of the British Virgin Islands may freely hold and vote their common shares.
As of July 15, 2016, there are 25,793,000
common shares issued and outstanding.
Preference Shares
Pursuant to the Business Companies Act 2004
of British Virgin Islands, or the BVI Act, and our memorandum of association, our board of directors by resolution may authorize
establishment of one or more classes of preference shares having such number of shares, designations, dividend rates, relative
voting rights, conversion or exchange rights, redemption rights, liquidation rights and other relative participation, optional
or other special rights, qualifications, limitations or restrictions as may be fixed by the board of directors without any further
shareholder approval. Such rights, preferences, powers and limitations as may be established could have the effect of discouraging
an attempt to obtain control of us.
Listing
Our common shares are traded on the Nasdaq
Capital Market under the symbol “TANH.”
Transfer Agent and Registrar
The transfer agent and registrar for the
common shares is VStock Transfer, LLC, 77 Spruce Street, Suite 201, Cedarhurst, NY 11516.
Distributions
The holders of our common shares are entitled
to such dividends as may be declared by our board of directors subject to the BVI Act.
Voting rights
Any action required or permitted to be taken
by the shareholders may be approved at a duly convened and constituted meeting of the shareholders by the affirmative vote of a
majority of in excess of 50 percent of the votes of the shares present at the meeting and entitled to vote on the proposed matters;
or may be consented to in writing by a majority of in excess of 50 percent of the votes of shares entitled to vote on the proposed
matters. Each shareholder who is present in person or by proxy (or, in the case of a shareholder being a
corporation, by its duly authorized representative) will have one vote for each common share which such shareholder holds.
Election of directors
Under the memorandum and articles of association,
the directors can either be elected by a resolutions of shareholders or by a resolution of directors. A director may
be removed from office, (a) with or without cause, by resolution of shareholders passed at a meeting of shareholders
called for the purposes of removing the director or for purposes including the removal of the director or by a written resolution
passed by at least 75 percent of the votes of the shareholders entitled to vote; or (b) with cause, by resolution of directors
passed at a meeting of directors called for the purpose of removing the director or for purposes including the removal of the director.
Meetings
THL must provide written notice of all meetings
of shareholders, stating the time, place and, in the case of a special meeting of shareholders, the purpose or purposes thereof,
at least 7 days before the date of the proposed meeting to those persons whose names appear as shareholders in the register of
members on the date of the notice and are entitled to vote at the meeting. THL board of directors shall call a special
meeting upon the written request of shareholders holding at least 30% of the voting rights in respect of the matter for which the
meeting is requested. In addition, the board of directors may call a special meeting of shareholders on its own motion.
A meeting of shareholders may be called on short notice: (a) if it is so agreed by shareholders holding not less than 90% of the
total voting rights on all the matters to be considered at the meeting have waived notice of the meeting and, for this purpose. The
presence of a shareholder at the meeting constitutes waiver in relation to all the shares which that shareholder holds.
At any meeting of shareholders, a quorum
will be present if there are shareholders present in person or by proxy representing not less than 50% of the votes of the shares
entitled to vote on the resolutions to be considered at the meeting. Such quorum may be represented by only a single shareholder
or proxy. If no quorum is present within two hours of the start time of the meeting, the meeting shall be dissolved if it was convened
on the requested of shareholders. In any other case, the meeting shall be adjourned to the next business day, and if shareholders
representing not less than one-third of the votes of the common shares or each class of shares entitled to vote on the matters
to be considered at the meeting are present within one hour of the start time of the adjourned meeting, a quorum will be present.
If not, the meeting will be dissolved. No business may be transacted at any general meeting unless a quorum is present at the commencement
of business. If present, the chair of the board of directors shall be the chair presiding at any meeting of the shareholders.
A corporation that is a shareholder shall
be deemed for the purpose of our memorandum and articles of association to be present in person if represented by its duly authorized
representative. This duly authorized representative shall be entitled to exercise the same powers on behalf of the corporation
which he represents as that corporation could exercise if it were our individual shareholder.
Protection of minority shareholders - Not a summary
of the M&A
The BVI Act provides for protection of minority
shareholders in certain circumstances. Outside of this, we would normally expect British Virgin Islands courts to follow
English case law precedents, which permit a minority shareholder to commence a representative action, or derivative actions in
our name, to challenge (1) an act which is ultra vires or illegal, (2) an act which constitutes a fraud against the minority by
parties in control of us, (3) the act complained of constitutes an infringement of individual rights of shareholders, such as the
right to vote and pre-emptive rights and (4) an irregularity in the passing of a resolution which requires a special or extraordinary
majority of the shareholders.
Pre-emptive rights
The memorandum and articles of association
of THL disapply the statutory pre-emptive rights applicable to the issue by us of new common shares.
Transfer of common shares
Subject to the restrictions in our memorandum
and articles of association, the lock-up agreements with our underwriter described in “Shares Eligible for Future Sale — Lock-Up
Agreements” and applicable securities laws, any of our shareholders may transfer all or any of his or her common shares by
written instrument of transfer signed by the transferor and containing the name and address of the transferee. Our board of directors
may resolve by resolution to refuse or delay the registration of the transfer of any common share. If our board of directors resolves
to refuse or delay any transfer, it shall specify the reasons for such refusal in the resolution. Our directors may not resolve
or refuse or delay the transfer of a common share unless the person transferring the shares has failed to pay any amount due in
respect of any of those shares.
Liquidation
THL may by a resolution of shareholders appoint
a voluntary liquidator. Each common share confers upon the shareholder the right to an equal share in the distribution
of the surplus assets of the Company on its liquidation. Generally under BVI law, a liquidator may divide among the
shareholders in specie or kind the whole or any part of our assets (whether they shall consist of property of the same kind or
not) and may, for such purpose, set such value as the liquidator deems fair upon any property to be divided.
Calls on common shares and forfeiture of common shares
All shares are issued fully paid. Shares
that are not fully paid on issue are subject to the forfeiture provisions set forth in the memorandum and articles of association,
Our board of directors may from time to time make calls upon shareholders for any amounts unpaid on their common shares in a notice
served to such shareholders at least 14 days prior to the specified time of payment. The common shares that have been called upon
and remain unpaid will be liable to be forfeited .
Redemption of common shares
THL may by a resolution of directors redeem,
repurchase or otherwise acquire its shares generally with the consent of the relevant shareholders on such terms as the directors
may agree with the relevant shareholders, and subject to the memorandum and articles of association and any applicable requirements
imposed from time to time by, the BVI Act, the SEC, the Nasdaq Capital Market, or by any recognized stock exchange on which our
securities are listed.
Modifications of rights
All or any of the rights attached to any
class of shares may, subject to the provisions of the BVI Act, be amended only with the consent in writing of or by a resolution
passed at a meeting by the holders of not less than 50 percent of the issued shares in that class.
Changes in the number of shares we are authorized to issue
and those in issue
We may from time to time by resolution of
our board of directors:
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amend our memorandum
of association to increase or decrease the maximum number of shares we are authorized to issue;
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amend our memorandum
of association to create additional classes of shares with on such terms and in such manner as they may determine in their sole
discretion at any time;
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subject to our memorandum,
divide our authorized and issued shares into a larger number of shares; and
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subject to our memorandum,
combine our authorized and issued shares into a smaller number of shares.
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Untraceable shareholders
We are entitled to sell any shares of a shareholder
who is untraceable, provided that:
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all checks or warrants
in respect of dividends of these shares, not being less than three in number, for any sums payable in cash to the holder of such
shares have remained uncashed for a period of twelve years prior to the publication of the notice and during the three months
referred to in the third bullet point below;
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we have not during that
time received any indication of the whereabouts or existence of the shareholder or person entitled to these shares by death, bankruptcy
or operation of law; and
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we have caused a notice
to be published in newspapers in the manner stipulated by our memorandum and articles of association, giving notice of our intention
to sell these shares, and a period of three months has elapsed since such notice.
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The net proceeds of any such sale shall belong
to us, and when we receive these net proceeds we shall become indebted to the former shareholder for an amount equal to the net
proceeds.
Inspection of books and records
Under British Virgin Islands Law, holders
of our common shares are entitled, upon giving written notice to us, to inspect (i) our memorandum and articles of association,
(ii) the register of members, (iii) the register of directors and (iv) minutes of meetings and resolutions of members, and to make
copies and take extracts from the documents and records. However, our directors can refuse access if they are satisfied that to
allow such access would be contrary to our interests. See “Where You Can Find Additional Information.”
Rights of non-resident or foreign shareholders
There are no limitations imposed by our memorandum
and articles of association on the rights of non-resident or foreign shareholders to hold or exercise voting rights on our shares.
In addition, there are no provisions in our memorandum and articles of association governing the ownership threshold above which
shareholder ownership must be disclosed.
Issuance of additional common shares
Our memorandum and articles of association
authorizes our board of directors to issue additional common shares from authorized but unissued shares, to the extent available,
from time to time as our board of directors shall determine.
Differences in Corporate
Law
The BVI Act and the laws of the British Virgin
Islands affecting British Virgin Islands companies like us and our shareholders differ from laws applicable to U.S. corporations
and their shareholders. Set forth below is a summary of the material differences between the provisions of the laws of the British
Virgin Islands applicable to us and the laws applicable to companies incorporated in the United States and their shareholders.
Mergers and similar arrangements
Under the laws of the British Virgin Islands,
two or more companies may merge or consolidate in accordance with Section 170 of the BVI Act. A merger means the merging of two
or more constituent companies into one of the constituent companies and a consolidation means the uniting of two or more constituent
companies into a new company. In order to merge or consolidate, the directors of each constituent company must approve a written
plan of merger or consolidation, which must be authorized by a resolution of shareholders.
While a director may vote on the plan of
merger or consolidation even if he has a financial interest in the plan, the interested director must disclose the interest to
all other directors of the company promptly upon becoming aware of the fact that he is interested in a transaction entered into
or to be entered into by the company.
A transaction entered into by our company
in respect of which a director is interested (including a merger or consolidation) is voidable by us unless the director’s
interest was (a) disclosed to the board prior to the transaction or (b) the transaction is (i) between the director and the company
and (ii) the transaction is in the ordinary course of the company’s business and on usual terms and conditions.
Notwithstanding the above, a transaction
entered into by the company is not voidable if the material facts of the interest are known to the shareholders and they approve
or ratify it or the company received fair value for the transaction.
Shareholders not otherwise entitled to vote
on the merger or consolidation may still acquire the right to vote if the plan of merger or consolidation contains any provision
which, if proposed as an amendment to the memorandum or articles of association, would entitle them to vote as a class or series
on the proposed amendment. In any event, all shareholders must be given a copy of the plan of merger or consolidation irrespective
of whether they are entitled to vote at the meeting to approve the plan of merger or consolidation.
The shareholders of the constituent companies
are not required to receive shares of the surviving or consolidated company but may receive debt obligations or other securities
of the surviving or consolidated company, other assets, or a combination thereof. Further, some or all of the shares of a class
or series may be converted into a kind of asset while the other shares of the same class or series may receive a different kind
of asset. As such, not all the shares of a class or series must receive the same kind of consideration.
After the plan of merger or consolidation
has been approved by the directors and authorized by a resolution of the shareholders, articles of merger or consolidation are
executed by each company and filed with the Registrar of Corporate Affairs in the British Virgin Islands.
A shareholder may dissent from a mandatory
redemption of his shares, an arrangement (if permitted by the court), a merger (unless the shareholder was a shareholder of the
surviving company prior to the merger and continues to hold the same or similar shares after the merger) or a consolidation. A
shareholder properly exercising his dissent rights is entitled to a cash payment equal to the fair value of his shares.
A shareholder dissenting from a merger or
consolidation must object in writing to the merger or consolidation before the vote by the shareholders on the merger or consolidation,
unless notice of the meeting was not given to the shareholder. If the merger or consolidation is approved by the shareholders,
the company must give notice of this fact to each shareholder within 20 days who gave written objection. These shareholders then
have 20 days to give to the company their written election in the form specified by the BVI Act to dissent from the merger or consolidation,
provided that in the case of a merger, the 20 days starts when the plan of merger is delivered to the shareholder.
Upon giving notice of his election to dissent,
a shareholder ceases to have any shareholder rights except the right to be paid the fair value of his shares. As such, the merger
or consolidation may proceed in the ordinary course notwithstanding his dissent.
Within seven days of the later of the delivery
of the notice of election to dissent and the effective date of the merger or consolidation, the company must make a written offer
to each dissenting shareholder to purchase his shares at a specified price per share that the company determines to be the fair
value of the shares. The company and the shareholder then have 30 days to agree upon the price. If the company and a shareholder
fail to agree on the price within the 30 days, then the company and the shareholder shall, within 20 days immediately following
the expiration of the 30-day period, each designate an appraiser and these two appraisers shall designate a third appraiser. These
three appraisers shall fix the fair value of the shares as of the close of business on the day prior to the shareholders’
approval of the transaction without taking into account any change in value as a result of the transaction.
Shareholders’ suits
There are both statutory and common law remedies
available to our shareholders as a matter of British Virgin Islands law. These are summarized below:
Prejudiced members
A shareholder who considers that the affairs
of the company have been, are being, or are likely to be, conducted in a manner that is, or any act or acts of the company have
been, or are, likely to be oppressive, unfairly discriminatory or unfairly prejudicial to him in that capacity, can apply to the
court under Section 184I of the BVI Act, inter alia, for an order that his shares be acquired, that he be provided compensation,
that the Court regulate the future conduct of the company, or that any decision of the company which contravenes the BVI Act or
our memorandum and articles of association be set aside.
Derivative actions
Section 184C of the BVI Act provides that
a shareholder of a company may, with the leave of the Court, bring an action in the name of the company to redress any wrong done
to it.
Just and equitable winding up
In addition to the statutory remedies outlined
above, shareholders can also petition for the winding up of a company on the grounds that it is just and equitable for the court
to so order. Save in exceptional circumstances, this remedy is only available where the company has been operated as a quasi-partnership
and trust and confidence between the partners has broken down.
Indemnification of directors and executive officers and
limitation of liability
British Virgin 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 provision providing indemnification may be held by the British Virgin Islands courts to be contrary to public
policy, such as to provide indemnification against civil fraud or the consequences of committing a crime.
Under our memorandum and articles of association,
we indemnify against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably
incurred in connection with legal, administrative or investigative proceedings for any person who:
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is or was a party or
is threatened to be made a party to any threatened, pending or completed proceedings, whether civil, criminal, administrative
or investigative, by reason of the fact that the person is or was our director; or
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is or was, at our request,
serving as a director or officer of, or in any other capacity is or was acting for, another body corporate or a partnership, joint
venture, trust or other enterprise.
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These indemnities only apply if the person
acted honestly and in good faith with a view to our best interests and, in the case of criminal proceedings, the person had no
reasonable cause to believe that his conduct was unlawful. This standard of conduct is generally the same as permitted under the
Delaware General Corporation Law for a Delaware corporation.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to our directors, officers or persons controlling us under the foregoing provisions,
we have been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable.
Anti-takeover provisions in our memorandum and articles
of association
Some provisions of our memorandum and articles
of association may discourage, delay or prevent a change in control of our company or management that shareholders may consider
favorable, including provisions that provide for a staggered board of directors and prevent shareholders from taking an action
by written consent in lieu of a meeting. However, under British Virgin Islands law, our directors may only exercise the rights
and powers granted to them under our memorandum and articles of association, as amended and restated from time to time, as they
believe in good faith to be in the best interests of our company.
Directors’ fiduciary duties
Under Delaware corporate law, a director
of a Delaware corporation has a fiduciary duty to the corporation and its shareholders. This duty has two components: the duty
of care and the duty of loyalty. The duty of care requires that a director act in good faith, with the care that an ordinarily
prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of, and disclose to
shareholders, all material information reasonably available regarding a transaction that is material to the company. The duty
of loyalty requires that a director act in a manner he reasonably believes to be in the best interests of the corporation. He
must not use his corporate position for personal gain or advantage. This duty prohibits self-dealing by a director and mandates
that the best interest of the corporation and its shareholders take precedence over any interest possessed by a director, officer
or controlling shareholder and not shared by the shareholders generally. In general, actions of a director are presumed to have
been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the
corporation. However, this presumption may be rebutted by evidence of a breach of one of the fiduciary duties. Should such evidence
be presented concerning a transaction by a director, a director must prove the procedural fairness of the transaction and that
the transaction was of fair value to the corporation.
Under British Virgin Islands law, our directors
owe the company certain statutory and fiduciary duties including, among others, a duty to act honestly, in good faith, for a proper
purpose and with a view to what the directors believe to be in the best interests of the company. Our directors are also required,
when exercising powers or performing duties as a director, to exercise the care, diligence and skill that a reasonable director
would exercise in comparable circumstances, taking into account without limitation, the nature of the company, the nature of the
decision and the position of the director and the nature of the responsibilities undertaken. In the exercise of their powers, our
directors must ensure neither they nor the company acts in a manner which contravenes the BVI Act or our memorandum and articles
of association, as amended and re-stated from time to time. A shareholder has the right to seek damages for breaches of duties
owed to us by our directors.
Shareholder action by written consent
Under the Delaware General Corporation Law,
a corporation may eliminate the right of shareholders to act by written consent by amendment to its certificate of incorporation.
British Virgin Islands law provides that shareholders may approve corporate matters by way of a written resolution without a meeting
signed by or on behalf of shareholders sufficient to constitute the requisite majority of shareholders who would have been entitled
to vote on such matter at a general meeting; provided that if the consent is less than unanimous, notice must be given to all non-consenting
shareholders. However, our memorandum and articles of association do not permit shareholders to act by written consent.
Shareholder proposals
Under the Delaware General Corporation Law,
a shareholder has the right to put any proposal before the annual meeting of shareholders, provided it complies with the notice
provisions in the governing documents. A special meeting may be called by the board of directors or any other person authorized
to do so in the governing documents, but shareholders may be precluded from calling special meetings. British Virgin Islands law
and our memorandum and articles of association allow our shareholders holding not less than 30% of the votes of the outstanding
voting shares to requisition a shareholders’ meeting. We are not obliged by law to call shareholders’ annual general
meetings, but our memorandum and articles of association do permit the directors to call such a meeting. The location of any shareholders’
meeting can be determined by the board of directors and can be held anywhere in the world.
Cumulative voting
Under the Delaware General Corporation Law,
cumulative voting for elections of directors is not permitted unless the corporation’s certificate of incorporation specifically
provides for it. Cumulative voting potentially facilitates the representation of minority shareholders on a board of directors
since it permits the minority shareholder to cast all the votes to which the shareholder is entitled on a single director, which
increases the shareholder’s voting power with respect to electing such director. As permitted under British Virgin Islands
law, our memorandum and articles of association do not provide for cumulative voting. As a result, our shareholders are not afforded
any less protections or rights on this issue than shareholders of a Delaware corporation.
Removal of directors
Under the Delaware General Corporation Law,
a director of a corporation with a classified board may be removed only for cause with the approval of a majority of the outstanding
shares entitled to vote, unless the certificate of incorporation provides otherwise. Under our memorandum and articles of association,
directors can be removed from office, with cause, by a resolution of shareholders or by a resolution of directors passed at a meeting
of directors called for the purpose of removing the director or for purposes including the removal of the director.
Transactions with interested shareholders
The Delaware General Corporation Law contains
a business combination statute applicable to Delaware public corporations whereby, unless the corporation has specifically elected
not to be governed by such statute by amendment to its certificate of incorporation, it is prohibited from engaging in certain
business combinations with an “interested shareholder” for three years following the date that such person becomes
an interested shareholder. An interested shareholder generally is a person or group who or which owns or owned 15% or more of the
target’s outstanding voting shares within the past three years. This has the effect of limiting the ability of a potential
acquirer to make a two-tiered bid for the target in which all shareholders would not be treated equally. The statute does not apply
if, among other things, prior to the date on which such shareholder becomes an interested shareholder, the board of directors approves
either the business combination or the transaction which resulted in the person becoming an interested shareholder. This encourages
any potential acquirer of a Delaware public corporation to negotiate the terms of any acquisition transaction with the target’s
board of directors. British Virgin Islands law has no comparable statute. However, our memorandum and articles of association expressly
provide for the same protection afforded by the Delaware business combination statute.
Dissolution; Winding Up
Under the Delaware General Corporation Law,
unless the board of directors approves the proposal to dissolve, dissolution must be approved by shareholders holding 100% of the
total voting power of the corporation. Only if the dissolution is initiated by the board of directors may it be approved by a simple
majority of the corporation’s outstanding shares. Delaware law allows a Delaware corporation to include in its certificate
of incorporation a supermajority voting requirement in connection with dissolutions initiated by the board. Under the BVI Act and
our memorandum and articles of association, we may appoint a voluntary liquidator by a resolution of the shareholders or by resolution
of directors.
Variation of rights of shares
Under the Delaware General Corporation Law,
a corporation may vary the rights of a class of shares with the approval of a majority of the outstanding shares of such class,
unless the certificate of incorporation provides otherwise. Under our memorandum and articles of association, if at any time our
shares are divided into different classes of shares, the rights attached to any class may only be varied, whether or not our company
is in liquidation, by a resolution passed at a meeting by a majority of the votes cast by those entitled to vote at a meeting of
the holders of the issued shares in that class.
Amendment of governing documents
Under the Delaware General Corporation Law,
a corporation’s governing documents may be amended with the approval of a majority of the outstanding shares entitled to
vote, unless the certificate of incorporation provides otherwise. As permitted by British Virgin Islands law, our memorandum and
articles of association may be amended by a resolution of shareholders and, subject to certain exceptions, by a resolution of directors.
Any amendment is effective from the date it is registered at the Registry of Corporate Affairs in the British Virgin Islands.
DESCRIPTION OF DEPOSITARY SHARES
The following description of the depositary
shares sets forth the material terms and provisions of the depositary shares to which any prospectus supplement may relate. You
should read the particular terms of any depositary shares and any depositary receipts that are offered by us, and any deposit agreement
relating to a common shares or any series thereof, which will be described in more detail in an applicable prospectus supplement,
which will also include a discussion of certain tax considerations. The applicable prospectus supplement will also state whether
any of the general provisions summarized below do not apply to the depositary shares being offered.
General
We may issue depositary shares that represent
common shares. The common shares represented by depositary shares will be deposited under a deposit agreement between us and a
bank or trust company selected by us and having its principal office in the United States and combined capital and surplus of at
least $50 million. Subject to the terms of the deposit agreement, each owner of a depositary share will be entitled, in proportion
to the applicable common shares or fraction thereof represented by the depositary share, to all of the rights and preferences of
the common shares represented thereby, including any dividend, voting, redemption, conversion and liquidation rights. The depositary
shares will be evidenced by depositary receipts issued pursuant to the deposit agreement.
We may, at our option, elect to offer fractional
shares of common shares, rather than full common shares. In the event we exercise this option, we will issue receipts for depositary
shares to the public, each of which will represent a fraction, to be described in an applicable prospectus supplement, of an ordinary
share or a share of a particular series of common shares as described below.
Pending the preparation of definitive depositary
receipts, the depositary may, upon our written order or the written order of any holder of deposited common shares, execute and
deliver temporary depositary receipts that are substantially identical to, and that entitle the holders to all the rights pertaining
to, the definitive depositary receipts. Depositary receipts will be prepared thereafter without unreasonable delay, and temporary
depositary receipts will be exchangeable for definitive depositary receipts at our expense.
Dividends and Other Distributions
The depositary will distribute all cash
dividends and other cash distributions received in respect of the deposited common shares to the record holders of depositary shares
relating to the common shares, in proportion to the numbers of the depositary shares owned by such holders.
In the event of a non-cash distribution,
the depositary will distribute property it receives to the appropriate record holders of depositary shares. If the depositary determines
that it is not feasible to make a distribution, it may, with our approval, sell the property and distribute the net proceeds from
the sale to the holders.
Redemption or Repurchase of Shares
Subject to the Companies Law (as revised)
of the British Virgin Islands, if a series of common shares represented by depositary shares is to be redeemed or repurchased,
the depositary shares will be redeemed from the proceeds received by the depositary resulting from the redemption or repurchase,
in whole or in part, of each series of common shares held by the depositary. The depositary shares will be redeemed by the depositary
at a price per depositary share equal to the applicable fraction of the redemption or repurchase price per share payable in respect
of the common shares so redeemed or repurchased. Whenever we redeem or repurchase common shares held by the depositary, the
depositary will redeem, as of the same date, the number of depositary shares representing common shares redeemed or repurchased.
If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by the depositary
by lot or pro rata or by any other equitable method as may be determined by the depositary.
Withdrawal of Shares
Any holder of depositary shares may, upon
surrender of the depositary receipts at the corporate trust office of the depositary, unless the related depositary shares have
previously been called for redemption, receive the number of whole shares of the related series of common shares and any money
or other property represented by the depositary receipts. Holders of depositary shares making withdrawals will be entitled to receive
whole shares of common shares on the basis described in an applicable prospectus supplement for such series of common shares, but
holders of whole common shares will not thereafter be entitled to deposit the common shares under the deposit agreement or to receive
depositary receipts therefor. If the depositary shares surrendered by the holder in connection with a withdrawal exceed the number
of depositary shares that represent the number of whole common shares to be withdrawn, the depositary will deliver to the holder
at the same time a new depositary receipt evidencing the excess number of depositary shares.
Voting Deposited Common shares
Upon receipt of notice of any meeting at
which the holders of any series of deposited common shares are entitled to vote, the depositary will mail the information contained
in the notice of meeting to the record holders of the depositary shares relating to such series of common shares. Each record holder
of the depositary shares on the record date, which will be the same date as the record date for the relevant series of common shares,
will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the amount of the common shares
represented by the holder’s depositary shares.
The depositary will attempt, insofar as
practicable, to vote the amount of such series of common shares represented by the depositary shares in accordance with the instructions,
and we will agree to take all reasonable actions that may be deemed necessary by the depositary to enable the depositary to do
so. The depositary will refrain from voting the common shares to the extent it does not receive specific instructions from the
holder of depositary shares representing the common shares.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing
the depositary shares and any provision of the deposit agreement may at any time be amended by agreement between us and the depositary.
However, any amendment that materially and adversely alters the rights of the holders of the depositary shares representing common
shares of any series will not be effective unless the amendment has been approved by the holders of at least the amount of the
depositary shares then outstanding representing the minimum amount of common shares of such series necessary to approve any amendment
that would materially and adversely affect the rights of the holders of the common shares of such series. Every holder of an outstanding
depositary receipt at the time any amendment becomes effective, or any transferee of the holder, will be deemed, by continuing
to hold the depositary receipt, or by reason of the acquisition thereof, to consent and agree to the amendment and to be bound
by the deposit agreement as amended thereby. The deposit agreement will automatically terminate if:
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all outstanding depositary
shares have been redeemed;
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a final distribution
in respect of the common shares has been made to the holders of depositary shares in connection with any of our liquidation, dissolution
or winding up; or
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upon the consent of holders
of depositary receipts representing not less than 66 2/3% of the depositary shares outstanding.
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Charges of Depositary
We will pay all transfer and other taxes
and governmental charges arising solely from the existence of the depositary arrangements. We will pay all charges of the depositary
in connection with the initial deposit of the relevant series of common shares and any redemption or repurchase of the common shares.
Holders of depositary receipts will pay other transfer and other taxes and governmental charges and other charges or expenses as
are expressly provided in the deposit agreement.
The depositary may refuse to effect any
transfer of a depositary receipt or any withdrawal of common shares evidenced thereby until all such taxes and charges with respect
to such depositary receipt or such common shares are paid by the holders thereof.
Resignation and Removal of Depositary
The depositary may resign at any time by
delivering to us notice of its election to do so, and we may at any time remove the depositary, any resignation or removal to take
effect upon the appointment of a successor depositary and its acceptance of the appointment. The successor depositary must be appointed
within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at least $50 million.
Miscellaneous
The depositary will forward all reports
and communications from us that are delivered to the depositary and that we are required to furnish to the holders of the deposited
common shares.
Neither we nor the depositary will be liable
if we are or it is prevented or delayed by law or any circumstances beyond our or its control in performing any obligations under
the deposit agreement. Our and their obligations under the deposit agreement will be limited to performance in good faith of our
and their duties under the deposit agreement and neither we nor they will be obligated to prosecute or defend any legal proceeding
in respect of any depositary shares, depositary receipts, common shares unless satisfactory indemnity is furnished. The depositary
may rely upon written advice of counsel or accountants, or upon information provided by holders of depositary receipts or other
persons believed to be competent and on documents believed to be genuine.
DESCRIPTION OF DEBT SECURITIES
As used in this prospectus, debt securities
means the debentures, notes, bonds and other evidences of indebtedness that we may issue from time to time. The debt securities
may be either secured or unsecured and will either be senior debt securities or subordinated debt securities. The debt securities
will be issued under one or more separate indentures between us and a trustee to be specified in an accompanying prospectus supplement.
Senior debt securities will be issued under a new senior indenture. Subordinated debt securities will be issued under a subordinated
indenture. Together, the senior indentures and the subordinated indentures are sometimes referred to in this prospectus as the
indentures. This prospectus, together with the applicable prospectus supplement, will describe the terms of a particular series
of debt securities.
The statements and descriptions in this
prospectus or in any prospectus supplement regarding provisions of the indentures and debt securities are summaries thereof, do
not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the
indentures (and any amendments or supplements we may enter into from time to time which are permitted under each indenture) and
the debt securities, including the definitions therein of certain terms.
General
Unless otherwise specified in a prospectus
supplement, the debt securities will be direct unsecured obligations of the Tantech Holdings Ltd. The senior debt securities will
rank equally with any of our other senior and unsubordinated debt. The subordinated debt securities will be subordinate and junior
in right of payment to any senior indebtedness.
Unless otherwise specified in a prospectus
supplement, the indentures do not limit the aggregate principal amount of debt securities that we may issue and provide that we
may issue debt securities from time to time at par or at a discount, and in the case of the new indentures, if any, in one or more
series, with the same or various maturities. Unless indicated in a prospectus supplement, we may issue additional debt securities
of a particular series without the consent of the holders of the debt securities of such series outstanding at the time of the
issuance. Any such additional debt securities, together with all other outstanding debt securities of that series, will constitute
a single series of debt securities under the applicable indenture.
Each prospectus supplement will describe
the terms relating to the specific series of debt securities being offered. These terms will include some or all of the following:
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the title of the debt
securities and whether they are subordinated debt securities or senior debt securities;
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any limit on the aggregate
principal amount of the debt securities;
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the ability to issue
additional debt securities of the same series;
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the price or prices at
which we will sell the debt securities;
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the maturity date or
dates of the debt securities on which principal will be payable;
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the rate or rates of
interest, if any, which may be fixed or variable, at which the debt securities will bear interest, or the method of determining
such rate or rates, if any;
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the date or dates from
which any interest will accrue or the method by which such date or dates will be determined;
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the right, if any, to
extend the interest payment periods and the duration of any such deferral period, including the maximum consecutive period during
which interest payment periods may be extended;
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whether the amount of
payments of principal of (and premium, if any) or interest on the debt securities may be determined with reference to any index,
formula or other method, such as one or more
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currencies, commodities,
equity indices or other indices, and the manner of determining the amount of such payments;
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the dates on which we
will pay interest on the debt securities and the regular record date for determining who is entitled to the interest payable on
any interest payment date;
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the place or places where
the principal of (and premium, if any) and interest on the debt securities will be payable, where any securities may be surrendered
for registration of transfer, exchange or conversion, as applicable, and notices and demands may be delivered to or upon us pursuant
to the indenture;
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if we possess the option
to do so, the periods within which and the prices at which we may redeem the debt securities, in whole or in part, pursuant to
optional redemption provisions, and the other terms and conditions of any such provisions;
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our obligation, if any,
to redeem, repay or purchase debt securities by making periodic payments to a sinking fund or through an analogous provision or
at the option of holders of the debt securities, and the period or periods within which and the price or prices at which we will
redeem, repay or purchase the debt securities, in whole or in part, pursuant to such obligation, and the other terms and conditions
of such obligation;
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the denominations in
which the debt securities will be issued, if other than denominations of $1,000 and integral multiples of $1,000;
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the portion, or methods
of determining the portion, of the principal amount of the debt securities which we must pay upon the acceleration of the maturity
of the debt securities in connection with an event of default (as described below), if other than the full principal amount;
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the currency, currencies
or currency unit in which we will pay the principal of (and premium, if any) or interest, if any, on the debt securities, if not
United States dollars;
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provisions, if any, granting
special rights to holders of the debt securities upon the occurrence of specified events;
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any deletions from, modifications
of or additions to the events of default or our covenants with respect to the applicable series of debt securities, and whether
or not such events of default or covenants are consistent with those contained in the applicable indenture;
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any limitation on our
ability to incur debt, redeem shares, sell our assets or other restrictions;
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the application, if any,
of the terms of the indenture relating to defeasance and covenant defeasance (which terms are described below) to the debt securities;
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whether the subordination
provisions summarized below or different subordination provisions will apply to the debt securities;
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the terms, if any, upon
which the holders may convert or exchange the debt securities into or for our common shares or other securities or property;
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whether any of the debt
securities will be issued in global form and, if so, the terms and conditions upon which global debt securities may be exchanged
for certificated debt securities;
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any change in the right
of the trustee or the requisite holders of debt securities to declare the principal amount thereof due and payable because of
an event of default;
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the depository for global
or certificated debt securities;
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any special tax implications
of the debt securities;
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any British Virgin Islands
tax consequences applicable to the debt securities, including any debt securities denominated and made payable, as described in
the prospectus supplements, in foreign currencies, or units based on or related to foreign currencies;
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any trustees, authenticating
or paying agents, transfer agents or registrars, or other agents with respect to the debt securities;
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any other terms of the
debt securities not inconsistent with the provisions of the indentures, as amended or supplemented;
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to whom any interest
on any debt security shall be payable, if other than the person in whose name the security is registered, on the record date for
such interest, the extent to which, or the manner in which, any interest payable on a temporary global debt security will be paid
if other than in the manner provided in the applicable indenture;
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if the principal of or
any premium or interest on any debt securities of the series is to be payable in one or more currencies or currency units other
than as stated, the currency, currencies or currency units in which it shall be paid and the periods within and terms and conditions
upon which such election is to be made and the amounts payable (or the manner in which such amount shall be determined);
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the portion of the principal
amount of any securities of the series which shall be payable upon declaration of acceleration of the maturity of the debt securities
pursuant to the applicable indenture if other than the entire principal amount; and
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if the principal amount
payable at the stated maturity of any debt security of the series will not be determinable as of any one or more dates prior to
the stated maturity, the amount which shall be deemed to be the principal amount of such securities as of any such date for any
purpose, including the principal amount thereof which shall be due and payable upon any maturity other than the stated maturity
or which shall be deemed to be outstanding as of any date prior to the stated maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be determined).
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Unless otherwise specified in the applicable
prospectus supplement, the debt securities will not be listed on any securities exchange.
Unless otherwise specified in the applicable
prospectus supplement, debt securities will be issued in fully-registered form without coupons.
Debt securities may be sold at a substantial
discount below their stated principal amount, bearing no interest or interest at a rate which at the time of issuance is below
market rates. The applicable prospectus supplement will describe the federal income tax consequences and special considerations
applicable to any such debt securities. The debt securities may also be issued as indexed securities or securities denominated
in foreign currencies, currency units or composite currencies, as described in more detail in the prospectus supplement relating
to any of the particular debt securities. The prospectus supplement relating to specific debt securities will also describe any
special considerations and certain additional tax considerations applicable to such debt securities.
Subordination
The prospectus supplement relating to any
offering of subordinated debt securities will describe the specific subordination provisions. However, unless otherwise noted in
the prospectus supplement, subordinated debt securities will be subordinate and junior in right of payment to any existing senior
indebtedness.
Unless otherwise specified in the applicable
prospectus supplement, under the subordinated indenture, “senior indebtedness” means all amounts due on obligations
in connection with any of the following, whether outstanding at the date of execution of the subordinated indenture, or thereafter
incurred or created:
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the principal of (and
premium, if any) and interest due on our indebtedness for borrowed money and indebtedness evidenced by bonds, notes, debentures
or similar instruments or letters of credit (or reimbursement agreements in respect thereof);
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all of our capital lease
obligations or attributable debt (as defined in the indentures) in respect of sale and leaseback transactions;
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all obligations representing
the balance deferred and unpaid of the purchase price of any property or services, which purchase price is due more than six months
after the date of placing such property in service or taking delivery and title thereto, except any such balance that constitutes
an accrued expense or trade payable or any similar obligation to trade creditors;
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all of our obligations
in respect of interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements
and interest rate collar agreements; other agreements or arrangements designed to manage interest rates or interest rate risk;
and other agreements or arrangements designed to protect against fluctuations in currency exchange rates or commodity prices;
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all obligations of the
types referred to above of other persons for the payment of which we are responsible or liable as obligor, guarantor or otherwise;
and
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all obligations of the
types referred to above of other persons secured by any lien on any property or asset of ours (whether or not such obligation
is assumed by us).
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However, senior indebtedness does not include:
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any indebtedness which
expressly provides that such indebtedness shall not be senior in right of payment to the subordinated debt securities, or that
such indebtedness shall be subordinated to any other of our indebtedness, unless such indebtedness expressly provides that such
indebtedness shall be senior in right of payment to the subordinated debt securities;
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any of our obligations
to our subsidiaries or of a subsidiary guarantor to us or any other of our other subsidiaries;
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any liability for federal,
state, local or other taxes owed or owing by us or any subsidiary guarantor,
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any accounts payable
or other liability to trade creditors arising in the ordinary course of business (including guarantees thereof or instruments
evidencing such liabilities);
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any obligations with
respect to any capital stock;
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any indebtedness incurred
in violation of the indenture, provided that indebtedness under our credit facilities will not cease to be senior indebtedness
under this bullet point if the lenders of such indebtedness obtained an officer’s certificate as of the date of incurrence
of such indebtedness to the effect that such indebtedness was permitted to be incurred by the indenture; and
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any of our indebtedness
in respect of the subordinated debt securities.
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Senior indebtedness shall continue to be
senior indebtedness and be entitled to the benefits of the subordination provisions irrespective of any amendment, modification
or waiver of any term of such senior indebtedness.
Unless otherwise noted in an accompanying
prospectus supplement, if we default in the payment of any principal of (or premium, if any) or interest on any senior indebtedness
when it becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise, then, unless
and until such default is cured or waived or ceases to exist, we will make no direct or indirect payment (in cash, property, securities,
by set-off or otherwise) in respect of the principal of or interest on the subordinated debt securities or in respect of any redemption,
retirement, purchase or other requisition of any of the subordinated debt securities.
In the event of the acceleration of the
maturity of any subordinated debt securities, the holders of all senior debt securities outstanding at the time of such acceleration,
subject to any security interest, will first be entitled to receive payment in full of all amounts due on the senior debt securities
before the holders of the subordinated debt securities will be entitled to receive any payment of principal (and premium, if any)
or interest on the subordinated debt securities.
If any of the following events occurs, we
will pay in full all senior indebtedness before we make any payment or distribution under the subordinated debt securities, whether
in cash, securities or other property, to any holder of subordinated debt securities:
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any dissolution or winding-up
or liquidation or reorganization of Tantech Holdings Ltd, whether voluntary or involuntary or in bankruptcy,
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insolvency or receivership;
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any general assignment
by us for the benefit of creditors; or
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any other marshaling
of our assets or liabilities.
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In such event, any payment or distribution
under the subordinated debt securities, whether in cash, securities or other property, which would otherwise (but for the subordination
provisions) be payable or deliverable in respect of the subordinated debt securities, will be paid or delivered directly to the
holders of senior indebtedness in accordance with the priorities then existing among such holders until all senior indebtedness
has been paid in full. If any payment or distribution under the subordinated debt securities is received by the trustee of any
subordinated debt securities in contravention of any of the terms of the subordinated indenture and before all the senior indebtedness
has been paid in full, such payment or distribution will be received in trust for the benefit of, and paid over or delivered and
transferred to, the holders of the senior indebtedness at the time outstanding in accordance with the priorities then existing
among such holders for application to the payment of all senior indebtedness remaining unpaid to the extent necessary to pay all
such senior indebtedness in full.
The subordinated indenture does not limit
the issuance of additional senior indebtedness.
Events of Default, Notice and Waiver
Unless an accompanying prospectus supplement
states otherwise, the following shall constitute “events of default” under the indentures with respect to each series
of debt securities:
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we default for 30 consecutive
days in the payment when due of interest on the debt securities;
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we default in the payment
when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on the debt securities;
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our failure to observe
or perform any other of our covenants or agreements with respect to such debt securities for 60 days after we receive notice of
such failure;
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certain events of bankruptcy,
insolvency or reorganization of the Tantech Holdings Ltd; or
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any other event of default
provided with respect to securities of that series.
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Unless an accompanying prospectus supplement
states otherwise, if an event of default with respect to any debt securities of any series outstanding under either of the indentures
shall occur and be continuing, the trustee under such indenture or the holders of at least 25% (or at least 10%, in respect of
a remedy (other than acceleration) for certain events of default relating to the payment of dividends) in aggregate principal amount
of the debt securities of that series outstanding may declare, by notice as provided in the applicable indenture, the principal
amount (or such lesser amount as may be provided for in the debt securities of that series) of all the debt securities of that
series outstanding to be due and payable immediately; provided that, in the case of an event of default involving certain events
in bankruptcy, insolvency or reorganization, acceleration is automatic; and, provided further, that after such acceleration, but
before a judgment or decree based on acceleration, the holders of a majority in aggregate principal amount of the outstanding debt
securities of that series may, under certain circumstances, rescind and annul such acceleration if all events of default, other
than the nonpayment of accelerated principal, have been cured or waived. Upon the acceleration of the maturity of original issue
discount securities, an amount less than the principal amount thereof will become due and payable. Reference is made to the prospectus
supplement relating to any original issue discount securities for the particular provisions relating to acceleration of maturity
thereof.
Any past default under either indenture
with respect to debt securities of any series, and any event of default arising therefrom, may be waived by the holders of a majority
in principal amount of all debt securities of such series outstanding under such indenture, except in the case of (1) default
in the payment of the principal of (or premium, if any) or interest on any debt securities of such series or (2) certain events
of default relating to the payment of dividends.
The trustee is required within 90 days after
the occurrence of a default (which is known to the trustee and is continuing), with respect to the debt securities of any series
(without regard to any grace period or notice requirements), to give to the holders of the debt securities of such series notice
of such default.
The trustee, subject to its duties during
default to act with the required standard of care, may require indemnification by the holders of the debt securities of any series
with respect to which a default has occurred before proceeding to exercise any right or power under the indentures at the request
of the holders of the debt securities of such series. Subject to such right of indemnification and to certain other limitations,
the holders of a majority in principal amount of the outstanding debt securities of any series under either indenture may direct
the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power
conferred on the trustee with respect to the debt securities of such series, provided that such direction shall not be in conflict
with any rule of law or with the applicable indenture and the trustee may take any other action deemed proper by the trustee which
is not inconsistent with such direction.
No holder of a debt security of any series
may institute any action against us under either of the indentures (except actions for payment of overdue principal of (and premium,
if any) or interest on such debt security or for the conversion or exchange of such debt security in accordance with its terms)
unless (1) the holder has given to the trustee written notice of an event of default and of the continuance thereof with respect
to the debt securities of such series specifying an event of default, as required under the applicable indenture, (2) the
holders of at least 25% in aggregate principal amount of the debt securities of that series then outstanding under such indenture
shall have requested the trustee to institute such action and offered to the trustee indemnity reasonably satisfactory to it against
the costs, expenses and liabilities to be incurred in compliance with such request; (3) the trustee shall not have instituted
such action within 60 days of such request and (4) no direction inconsistent with such written request has been given to the
trustee during such 60-day period by the holders of a majority in principal amount of the debt securities of that series. We are
required to furnish annually to the trustee statements as to our compliance with all conditions and covenants under each indenture.
Discharge, Defeasance and Covenant Defeasance
We may discharge or defease our obligations
under the indenture as set forth below, unless otherwise indicated in the applicable prospectus supplement.
We may discharge certain obligations to
holders of any series of debt securities issued under either the senior indenture or the subordinated indenture which have not
already been delivered to the trustee for cancellation by irrevocably depositing with the trustee money in an amount sufficient
to pay and discharge the entire indebtedness on such debt securities not previously delivered to the trustee for cancellation,
for principal and any premium and interest to the date of such deposit (in the case of debt securities which have become due and
payable) or to the stated maturity or redemption date, as the case may be, and we or, if applicable, any guarantor, have paid all
other sums payable under the applicable indenture.
If indicated in the applicable prospectus
supplement, we may elect either (1) to defease and be discharged from any and all obligations with respect to the debt securities
of or within any series (except in all cases as otherwise provided in the relevant indenture) (“legal defeasance”)
or (2) to be released from our obligations with respect to certain covenants applicable to the debt securities of or within
any series (“covenant defeasance”), upon the deposit with the relevant indenture trustee, in trust for such purpose,
of money and/or government obligations which through the payment of principal and interest in accordance with their terms will
provide money in an amount sufficient to pay the principal of (and premium, if any) or interest on such debt securities to maturity
or redemption, as the case may be, and any mandatory sinking fund or analogous payments thereon. As a condition to legal defeasance
or covenant defeasance, we must deliver to the trustee an opinion of counsel to the effect that the holders of such debt securities
will not recognize income, gain or loss for federal income tax purposes as a result of such legal defeasance or covenant defeasance
and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the
case if such legal defeasance or covenant defeasance had not occurred. Such opinion of counsel, in the case of legal defeasance
under clause (i) above, must refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable
federal income tax law occurring after the date of the relevant indenture. In addition, in the case of either legal defeasance
or covenant defeasance, we shall have delivered to the trustee (1) if applicable, an officer’s certificate to the effect
that the relevant debt securities exchange(s) have informed us that neither such debt securities nor any other debt securities
of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit and (2) an officer’s
certificate and an opinion of counsel, each stating that all conditions precedent with respect to such legal defeasance or covenant
defeasance have been complied with.
We may exercise our defeasance option with
respect to such debt securities notwithstanding our prior exercise of our covenant defeasance option.
Modification and Waiver
Under the indentures, unless an accompanying
prospectus supplement states otherwise, we and the applicable trustee may supplement the indentures for certain purposes which
would not materially adversely affect the interests or rights of the holders of debt securities of a series without the consent
of those holders. We and the applicable trustee may also modify the indentures or any supplemental indenture in a manner that affects
the interests or rights of the holders of debt securities with the consent of the holders of at least a majority in aggregate principal
amount of the outstanding debt securities of each affected series issued under the indenture. However, the indentures require the
consent of each holder of debt securities that would be affected by any modification which would:
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reduce the principal
amount of debt securities whose holders must consent to an amendment, supplement or waiver;
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reduce the principal
of or change the fixed maturity of any debt security or, except as provided in any prospectus supplement, alter or waive any of
the provisions with respect to the redemption of the debt securities;
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reduce the rate of or
change the time for payment of interest, including default interest, on any debt security;
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waive a default or event
of default in the payment of principal of or interest or premium, if any, on, the debt securities (except a rescission of acceleration
of the debt securities by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities
and a waiver of the payment default that resulted from such acceleration);
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make any debt security
payable in money other than that stated in the debt securities;
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make any change in the
provisions of the applicable indenture relating to waivers of past defaults or the rights of holders of the debt securities to
receive payments of principal of, or interest or premium, if any, on, the debt securities;
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waive a redemption payment
with respect to any debt security (except as otherwise provided in the applicable prospectus supplement);
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except in connection
with an offer by us to purchase all debt securities, (1) waive certain events of default relating to the payment of dividends
or (2) amend certain covenants relating to the payment of dividends and the purchase or redemption of certain equity interests;
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make any change to the
subordination or ranking provisions of the indenture or the related definitions that adversely affect the rights of any holder;
or
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make any change in the
preceding amendment and waiver provisions.
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The indentures permit the holders of at
least a majority in aggregate principal amount of the outstanding debt securities of any series issued under the indenture which
is affected by the modification or amendment to waive our compliance with certain covenants contained in the indentures.
Payment and Paying Agents
Unless otherwise indicated in the applicable
prospectus supplement, payment of interest on a debt security on any interest payment date will be made to the person in whose
name a debt security is registered at the close of business on the record date for the interest.
Unless otherwise indicated in the applicable
prospectus supplement, principal, interest and premium on the debt securities of a particular series will be payable at the office
of such paying agent or paying agents as we may designate for such purpose from time to time. Notwithstanding the foregoing, at
our option, payment of any interest may be made by check mailed to the address of the person entitled thereto as such address appears
in the security register.
Unless otherwise indicated in the applicable
prospectus supplement, a paying agent designated by us will act as paying agent for payments with respect to debt securities of
each series. All paying agents initially designated by us for the debt securities of a particular series will be named in the applicable
prospectus supplement. We may at any time designate additional paying agents or rescind the designation of any paying agent or
approve a change in the office through which any paying agent acts, except that we will be required to maintain a paying agent
in each place of payment for the debt securities of a particular series.
All moneys paid by us to a paying agent
for the payment of the principal, interest or premium on any debt security which remain unclaimed at the end of two years after
such principal, interest or premium has become due and payable will be repaid to us upon request, and the holder of such debt security
thereafter may look only to us for payment thereof.
Denominations, Registrations and Transfer
Unless an accompanying prospectus supplement
states otherwise, debt securities will be represented by one or more global certificates registered in the name of a nominee for
The Depository Trust Company, or DTC. In such case, each holder’s beneficial interest in the global securities will be shown
on the records of DTC and transfers of beneficial interests will only be effected through DTC’s records.
A holder of debt securities may only exchange
a beneficial interest in a global security for certificated securities registered in the holder’s name if:
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we deliver to the trustee
notice from DTC that it is unwilling or unable to continue to act as depository or that it is no longer a clearing agency registered
under the Exchange Act and, in either case, a successor depositary is not appointed by us within 120 days after the date of such
notice from DTC;
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we in our sole discretion
determine that the debt securities (in whole but not in part) should be exchanged for definitive debt securities and deliver a
written notice to such effect to the trustee; or
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there has occurred and
is continuing a default or event of default with respect to the debt securities.
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If debt securities are issued in certificated
form, they will only be issued in the minimum denomination specified in the accompanying prospectus supplement and integral multiples
of such denomination. Transfers and
exchanges of such debt securities will only be permitted in
such minimum denomination. Transfers of debt securities in certificated form may be registered at the trustee’s corporate
office or at the offices of any paying agent or trustee appointed by us under the indentures. Exchanges of debt securities for
an equal aggregate principal amount of debt securities in different denominations may also be made at such locations.
Governing Law
The indentures and debt securities will
be governed by, and construed in accordance with, the laws of the State of New York, without regard to its principles of conflicts
of laws, except to the extent the Trust Indenture Act is applicable.
Trustee
The trustee or trustees under the indentures
will be named in any applicable prospectus supplement.
Conversion or Exchange Rights
The prospectus supplement will describe
the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our common shares or other
debt securities. These terms will include provisions as to whether conversion or exchange is mandatory, at the option of the holder
or at our option. These provisions may allow or require the number of shares of our common shares or other securities to be received
by the holders of such series of debt securities to be adjusted. Any such conversion or exchange will comply with applicable British
Virgin Islands law and our Articles of Association.
DESCRIPTION OF WARRANTS
The following description, together with
the additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions
of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates. While the
terms summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular
terms of any series of warrants that we may offer in more detail in the applicable prospectus supplement. If we indicate in the
prospectus supplement, the terms of any warrants offered under that prospectus supplement may differ from the terms described below.
However, no prospectus supplement shall fundamentally change the terms that are set forth in this prospectus or offer a security
that is not registered and described in this prospectus at the time of its effectiveness. Specific warrant agreements will contain
additional important terms and provisions and will be incorporated by reference as an exhibit to the registration statement that
includes this prospectus or as an exhibit to a report filed under the Exchange Act.
General
We may issue warrants that entitle the holder
to purchase our debt securities, common shares, preference shares, depositary shares or any combination thereof. We may issue warrants
independently or together with common shares, preference shares, debt securities, depositary shares or any combination thereof,
and the warrants may be attached to or separate from such securities.
We will describe in the applicable prospectus
supplement the terms of the series of warrants, including:
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the offering price and
aggregate number of warrants offered;
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the currency for which
the warrants may be purchased, if not United States dollars;
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if applicable, the designation
and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each
principal amount of such security;
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if applicable, the date
on and after which the warrants and the related securities will be separately transferable;
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in the case of warrants
to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at,
and currency, if not United States dollars, in which, this principal amount of debt securities may be purchased upon such exercise;
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in the case of warrants
to purchase common shares, preference shares, or depositary shares, the number of shares of common shares, preference shares or
depositary shares purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such
exercise;
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the effect of any merger,
consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
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the terms of any rights
to redeem or call the warrants;
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any provisions for changes
to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the
right to exercise the warrants will commence and expire;
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the manner in which the
warrant agreement and warrants may be modified;
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federal income tax consequences
of holding or exercising the warrants;
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the terms of the securities
issuable upon exercise of the warrants; and
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any other specific terms,
preferences, rights or limitations of or restrictions on the warrants.
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Before exercising their warrants, holders
of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
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in the case of warrants
to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities
purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in the case of warrants
to purchase common shares, preference shares or depositary shares, the right to receive dividends, if any, or, payments upon our
liquidation, dissolution or winding up or to exercise voting rights, if any.
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Exercise of Warrants
Each warrant will entitle the holder to
purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable
prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise
the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the
warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information, and
paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement.
We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that
the holder of the warrant will be required to deliver to the warrant agent.
Upon receipt of the required payment and
the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office
indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If
fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate
for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender
securities as all or part of the exercise price for warrants.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our
agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder
of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will
have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may,
without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right
to exercise, and receive the securities purchasable upon exercise of, its warrants.
Modification of the Warrant Agreement
The warrant agreements may permit us and
the warrant agent, if any, without the consent of the warrant holders, to supplement or amend the agreement in the following circumstances:
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to correct or supplement
any provision which may be defective or inconsistent with any other provisions; or
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to add new provisions
regarding matters or questions that we and the warrant agent may deem necessary or desirable and which do not adversely affect
the interests of the warrant holders.
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DESCRIPTION OF UNITS
We may issue units comprised of one or more
of the other securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit
is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a
holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the
unit may not be held or transferred separately, at any time or at any time before a specified date or occurrence.
The applicable prospectus supplement may
describe:
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the designation and terms
of the units and of the securities comprising the units, including whether and under what circumstances those securities may be
held or transferred separately;
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any provisions for the
issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
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whether the units will
be issued in fully registered or global form.
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The applicable prospectus supplement will
describe the terms of any units. The preceding description and any description of units in the applicable prospectus supplement
does not purport to be complete and is subject to and is qualified in its entirety by reference to the unit agreement and, if applicable,
collateral arrangements and depository arrangements relating to such units.
DESCRIPTION OF RIGHTS
We may issue rights to purchase common shares,
preference shares, depositary shares or debt securities that we may offer to our securityholders. The rights may or may not be
transferable by the persons purchasing or receiving the rights. In connection with any rights offering, we may enter into a standby
underwriting or other arrangement with one or more underwriters or other persons pursuant to which such underwriters or other persons
would purchase any offered securities remaining unsubscribed for after such rights offering. Each series of rights will be issued
under a separate rights agent agreement to be entered into between us and a bank or trust company, as rights agent, that we will
name in the applicable prospectus supplement. The rights agent will act solely as our agent in connection with the rights and will
not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners
of rights.
The prospectus supplement relating to any
rights that we offer will include specific terms relating to the offering, including, among other matters:
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the date of determining
the securityholders entitled to the rights distribution;
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the aggregate number
of rights issued and the aggregate number of shares of common shares, preference shares, or depositary shares or aggregate principal
amount of debt securities purchasable upon exercise of the rights;
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the conditions to completion
of the rights offering;
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the date on which the
right to exercise the rights will commence and the date on which the rights will expire; and
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applicable tax considerations.
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Each right would entitle the holder of the
rights to purchase for cash the principal amount of shares of common shares, preference shares, depositary shares or debt securities
at the exercise price set forth in the applicable prospectus supplement. Rights may be exercised at any time up to the close of
business on the expiration date for the rights provided in the applicable prospectus supplement. After the close of business on
the expiration date, all unexercised rights will become void.
If less than all of the rights issued in
any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than our security holders,
to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements,
as described in the applicable prospectus supplement.
PLAN OF DISTRIBUTION
We may sell the securities through underwriters
or dealers, through agents, directly to one or more purchasers, through a rights offering, or otherwise. We will describe the terms
of the offering of the securities in a prospectus supplement, information incorporated by reference or free writing prospectus,
including:
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the name or names of
any underwriters, if any;
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the purchase price of
the securities and the proceeds we will receive from the sale;
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any underwriting discounts
and other items constituting underwriters’ compensation;
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any initial public offering
price;
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any discounts or concessions
allowed or reallowed or paid to dealers; and
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any securities exchange
or market on which the securities may be listed.
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Only underwriters we name in the prospectus
supplement, information incorporated by reference or free writing prospectus are underwriters of the securities offered thereby.
The distribution of securities may be effected, from time to time, in one or more transactions, including:
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block transactions (which
may involve crosses) and transactions on the NASDAQ Capital Market or any other organized market where the securities may be traded;
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purchases by a broker-dealer
as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement;
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ordinary brokerage transactions
and transactions in which a broker-dealer solicits purchasers;
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sales “at the market”
to or through a market maker or into an existing trading market, on an exchange or otherwise; and
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sales in other ways
not involving market makers or established trading markets, including direct sales to purchasers.
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The securities may be sold at a fixed price
or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market
prices or at negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters or
broker-dealers may be paid compensation for offering and selling the securities. That compensation may be in the form of discounts,
concessions or commissions to be received from us or from the purchasers of the securities. Dealers and agents participating in
the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities
may be deemed to be underwriting discounts and commissions under the U.S. Securities Act of 1933, as amended, or the Securities
Act. If such dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities
Act.
We may also make direct sales through rights
distributed to our existing shareholders on a pro rata basis, which may or may not be transferable. In any distribution of rights
to our shareholders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly
to third parties or may engage the services of one or more underwriters, dealers or agents, including standby underwriters, to
sell the unsubscribed securities to third parties.
Some or all of the securities that we offer
though this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell our
securities for public offering and sale may make a market in those securities, but they will not be obligated to do so and they
may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued
trading markets for, any securities that we offer.
Agents may, from time to time, solicit
offers to purchase the securities. If required, we will name in the applicable prospectus supplement, document incorporated by
reference or free writing prospectus, as applicable, any agent involved in the offer or sale of the securities and set forth any
compensation payable to the agent. Unless otherwise indicated, any agent will be acting on a best efforts basis for the period
of its appointment. Any agent selling the securities covered by this prospectus may be deemed to be an underwriter, as that term
is defined in the Securities Act, of the securities.
If underwriters are used in an offering,
securities will be acquired by the underwriters for their own account and may be resold, from time to time, in one or more transactions,
including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or under
delayed delivery contracts or other contractual commitments. Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter
or underwriters are used in the sale of securities, an underwriting agreement will be executed with the underwriter or underwriters
at the time an agreement for the sale is reached. The applicable prospectus supplement will set forth the managing underwriter
or underwriters, as well as any other underwriter or underwriters, with respect to a particular underwritten offering of securities,
and will set forth the terms of the transactions, including compensation of the underwriters and dealers and the public offering
price, if applicable. The prospectus, and the applicable prospectus supplement and any applicable free writing prospectus will
be used by the underwriters to resell the securities.
If a dealer is used in the sale of the
securities, we or an underwriter will sell the securities to the dealer, as principal. The dealer may then resell the securities
to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth
in the prospectus supplement, document incorporated by reference or free writing prospectus, as applicable, the name of the dealer
and the terms of the transactions.
We may directly solicit offers to purchase
the securities and may make sales of securities directly to institutional investors or others. These persons may be deemed to be
underwriters within the meaning of the Securities Act with respect to any resale of the securities. To the extent required, the
prospectus supplement, document incorporated by reference or free writing prospectus, as applicable, will describe the terms of
any such sales, including the terms of any bidding or auction process, if used.
Agents, underwriters and dealers may be
entitled under agreements which may be entered into with us to indemnification by us against specified liabilities, including liabilities
incurred under the Securities Act, or to contribution by us to payments they may be required to make in respect of such liabilities.
If required, the prospectus supplement, document incorporated by reference or free writing prospectus, as applicable, will describe
the terms and conditions of such indemnification or contribution. Some of the agents, underwriters or dealers, or their affiliates
may be customers of, engage in transactions with or perform services for us, our subsidiaries or affiliates in the ordinary course
of business.
Under the securities laws of some states,
the securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers.
Any person participating in the distribution
of common shares registered under the registration statement that includes this prospectus will be subject to applicable provisions
of the Exchange Act, and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing
of purchases and sales of any of our common shares by any such person. Furthermore, Regulation M may restrict the ability of any
person engaged in the distribution of our common shares to engage in market-making activities with respect to our common shares.
These restrictions may affect the marketability of our common shares and the ability of any person or entity to engage in market-making
activities with respect to our common shares.
Certain persons participating in an offering
may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation
M under the Exchange Act that stabilize, maintain or otherwise affect the price of the offered securities. If any such activities
will occur, they will be described in the applicable prospectus supplement.
To the extent required, this prospectus
may be amended or supplemented from time to time to describe a specific plan of distribution.
All securities we offer other than common
shares will be new issues of securities with no established trading market. Any underwriters may make a market in these securities,
but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity
of the trading markets for any securities.
In compliance with the guidelines of the
Financial Industry Regulatory Authority (“FINRA”), the aggregate maximum discount, commission or agency fees or other
items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will not exceed 8%
of any offering pursuant to this prospectus and any applicable prospectus supplement, as the case may be.
LEGAL MATTERS
Campbells, Hong Kong (as to British
Virgin Islands law) and Cadwalader Wickersham & Taft LLP, Beijing, the PRC, will pass upon the validity of the securities
offered in this offering. The address of Campbells in the British Virgin Islands is
Floor
2, Romasco Place, Waterfront Drive, PO Box 4541, Road Town, Tortola VG1110, and in Hong Kong, Floor 35, Rm 3507, Edinburgh
Tower, The Landmark, 15 Queen’s Road Central
. The address of Cadwalader Wickersham & Taft LLP is 79 Jianguo
Road, China Central Place Tower 2-2301, Beijing, P. R. China 100035. Additional legal matters may be passed on for us, or any
underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of
our Company appearing in our annual report on Form 20-F for the fiscal year ended December 31, 2015 have been audited by Friedman
LLP, independent registered public accounting firm, as set forth in the reports thereon included therein and incorporated herein
by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports
given on the authority of such firms as experts in accounting and auditing.
ENFORCEABILITY OF CIVIL LIABILITIES
UNDER UNITED STATES FEDERAL SECURITIES LAWS AND OTHER MATTERS
We are incorporated under the laws of the
British Virgin Islands with limited liability. We are incorporated in the British Virgin Islands because of certain benefits associated
with being a British Virgin Islands corporation, such as political and economic stability, an effective judicial system, a favorable
tax system, the absence of exchange control or currency restrictions and the availability of professional and support services.
However, the British Virgin Islands has a less developed body of securities laws as compared to the United States and provides
protections for investors to a lesser extent. In addition, British Virgin Islands companies may not have standing to sue before
the federal courts of the United States.
Substantially all of our assets are located
outside the United States. In addition, a majority of our directors and officers are nationals and/or residents of countries other
than the United States, and all or a substantial portion of such persons’ assets are located outside the United States. As
a result, it may be difficult for investors to effect service of process within the United States upon us or such persons or to
enforce against them or against us, judgments obtained in United States courts, including judgments predicated upon the civil liability
provisions of the securities laws of the United States or any state thereof.
We have appointed CT Corporation System
as our agent to receive service of process with respect to any action brought against us in the United States District Court for
the Southern District of New York under the federal securities laws of the United States or of any State of the United States or
any action brought against us in the Supreme Court of the State of New York in the County of New York under the securities laws
of the State of New York.
Deheng Law Offices, our counsel as to Chinese
law, has advised us that there is uncertainty as to whether the courts of China would (1) recognize or enforce judgments of
United States courts obtained against us or such persons predicated upon the civil liability provisions of the securities laws
of the United States or any state thereof, or (2) be competent to hear original actions brought in each respective jurisdiction,
against us or such persons predicated upon the securities laws of the United States or any state thereof.
Deheng Law Offices has advised us that the
recognition and enforcement of foreign judgments are provided for under the Chinese Civil Procedure Law. Chinese courts may recognize
and enforce foreign judgments in accordance with the requirements of the Chinese Civil Procedure Law based either on treaties between
China and the country where the judgment is made or in reciprocity between jurisdictions. China does not have any treaties or other
agreements with the British Virgin Islands or the United States that provide for the reciprocal recognition and enforcement of
foreign judgments. As a result, it is uncertain whether a Chinese court would enforce a judgment rendered by a court in either
of these two jurisdictions.
We have been advised by Campbells, our counsel
as to British Virgin Islands law, that the United States and the British Virgin Islands do not have a treaty providing for reciprocal
recognition and enforcement of judgments of courts of the United States in commercial matters. In the case of a final and conclusive
judgment obtained in a court of a foreign country (with which no reciprocal arrangements exist or extend), such as the United States,
for either a liquidated sum (not in respect of penalties or taxes or a fine or similar fiscal or revenue obligations), or in certain
circumstances, for in personam non-money relief, such judgment will be recognized and enforced in the British Virgin Islands courts
without any re-examination of the merits at common law, by an action commenced on the foreign judgment in the British Virgin Islands
courts. The courts would enforce the relevant judgment, provided that:
- the judgment had not been wholly satisfied;
- United States court had jurisdiction
in the matter and the Company either submitted to the jurisdiction of the foreign court or was resident or carrying on business
within such jurisdiction and was duly served with process;
- in obtaining judgment there was no
fraud on the part of the person in whose favor judgment was given or on the part of a court;
- recognition or enforcement of the judgment
in the British Virgin Islands would not be contrary to public policy or for some other similar reason the judgment could not have
been entertained by the British Virgin Islands courts; and
- the proceedings pursuant to which judgment
was obtained were not contrary to natural justice.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions,
we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration
statement on Form F-3 that we have filed with the SEC using a “shelf” registration process. Under this shelf registration
process, we may from time to time sell the securities described in this prospectus in one or more offerings up to a total dollar
amount of $150,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we offer
securities under this shelf registration process, we will provide a prospectus supplement that will contain more specific information
about the terms of that offering. This prospectus does not contain all the information provided in the registration statement we
have filed with the SEC. For further information about us or the securities offered hereby, you should refer to that registration
statement and the exhibits filed as a part of that registration statement.
We are subject to the reporting requirements
of the Exchange Act, and file reports, including Annual Reports on Form 20-F and Reports on Form 6-K, with the SEC. The SEC
maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that
file electronically with the SEC at http://www.sec.gov. The public may read our SEC filings, including the registration statement
of which this prospectus is a part and the exhibits filed as a part of that registration statement, over the Internet at http://www.sec.gov.
The public may also read and copy any materials we file with the SEC at the SEC’s Public Reference Room at 100 F Street,
N.E., Washington, D.C. 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC
at 1-800-SEC-0330. In addition, you can obtain information about us at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
Our filings with the SEC are also available
to the public through the SEC’s Internet site at
http://www.sec.gov
.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to “incorporate
by reference” into this prospectus the information we file with them. The information we incorporate by reference into this
prospectus is an important part of this prospectus. Any statement in a document we have filed with the SEC prior to the date of
this prospectus and which is incorporated by reference into this prospectus will be considered to be modified or superseded to
the extent a statement contained in this prospectus or any other subsequently filed document that is incorporated by reference
into this prospectus modifies or supersedes that statement. The modified or superseded statement will not be considered to be a
part of this prospectus, except as modified or superseded.
We incorporate by reference into this prospectus
the information contained in the following documents that we have filed with the SEC pursuant to the Securities Exchange Act of
1934, as amended (the “Exchange Act”), which is considered to be a part of this prospectus:
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Our
reports on Form 6-K furnished to the SEC on March 4, 2016, May 2, 2016 July 12, 2016,
and July 15, 2016;
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our Annual Report on Form 20-F for the year ended December 31, 2015, filed on April 29, 2016;
All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report on Form 20-F referred to in the paragraph above; and
The description of the common shares, $0.001 par value per share, contained in the Registrant’s registration statement on Form F-1 filed with the SEC on September 16, 2014 (File Number 333-198788), as amended from time to time thereafter, and declared effective by the SEC on March 18, 2015, and any amendment or report filed with the SEC for purposes of updating such description.
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The description of our
2014 Share Incentive Plan in our Registration Statement on Form S-8 (Registration No. 333-205821) filed pursuant to Rule 428 of
the Securities Act on July 23, 2015.
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All documents that we file with the SEC pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment to this Registration Statement (that indicates that all securities offered have been sold or that deregisters
all securities then remaining unsold) shall be deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents.
We also incorporate by reference all additional documents that
we file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that are filed after the effective date
of the registration statement of which this prospectus is a part and prior to the termination of the offering of securities offered
pursuant to this prospectus. We also incorporate by reference all additional documents that we file with the SEC pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act that are filed after the filing date of the registration statement of which this
prospectus is a part and prior to effectiveness of that registration statement. We are not, however, incorporating, in each case,
any documents or information that we are deemed to “furnish” and not file in accordance with SEC rules.
You may obtain a copy of these filings,
without charge, by writing or calling us at:
Tantech Holdings Ltd
c/o Zhejiang Tantech Bamboo Technology Co.,
Ltd.
No. 10 Cen Shan Road, Shuige Industrial
Zone, Lishui City, Zhejiang Province 323000
People’s Republic of China
+86 (578) 226-2305
Attn: Investor Relations
TANTECH HOLDINGS LTD
$150,000,000
Common shares
Depositary Shares
Preference Shares
Debt Securities
Warrants
Rights
Units
PROSPECTUS
,
2016
No dealer, salesperson, or other person has been authorized
to give any information or to make any representation not contained in this prospectus, and, if given or made, such information
and representation should not be relied upon as having been authorized by us. This prospectus does not constitute an offer to sell
or a solicitation of an offer to buy any of the securities offered by this prospectus in any jurisdiction or to any person to whom
it is unlawful to make such offer or solicitation. Neither the delivery of this prospectus nor any sale made hereunder shall under
any circumstances create an implication that there has been no change in the facts set forth in this prospectus or in our affairs
since the date hereof.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers
British Virgin 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 British Virgin Islands courts to be contrary to public policy, such as to provide
indemnification against civil fraud or the consequences of committing a crime. Under the memorandum and articles of
association of the Registrant, the Registrant may indemnify its directors, officers and liquidators against all expenses, including
legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred in connection with civil, criminal,
administrative or investigative proceedings to which they are party or are threatened to be made a party by reason of their acting
as our director, officer or liquidator. To be entitled to indemnification, these persons must have acted honestly and
in good faith with a view to the best interest of the Registrant and, in the case of criminal proceedings, they must have had no
reasonable cause to believe their conduct was unlawful.
Insofar as indemnification for liabilities
arising under the Securities Act of 1933, as amended (the “Securities Act”) may be permitted to our directors, officers
and controlling persons (within the meaning of the Securities Exchange Act) pursuant to the foregoing provisions, or otherwise,
we have been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 9. Exhibits
A list of exhibits filed with this registration
statement on Form F-3 is set forth on the Exhibit Index and is incorporated herein by reference.
Item 10. Undertakings
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(a)(1)
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To file, during any period
in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus
required by section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration statement.
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(iii)
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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;
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Provided however, that:
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A.
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Paragraphs (a)(1)(i)
and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and 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; and
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B.
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Paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part
of the registration statement.
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(2)
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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.
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(3)
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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.
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(4)
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To file a post-effective
amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start
of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3)
of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information
in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect
to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information
required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements and information are contained
in periodic 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 Form F-3.
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(5)
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That, for the purpose
of determining liability under the Securities Act of 1933 to any purchaser:
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(i)
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If the registrant is
relying on Rule 430B:
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(a)
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Each prospectus filed
by the registrant pursuant to Rule 424(b)(3)shall be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
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(b)
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Each prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that
is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to
the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
or
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(ii)
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If the registrant is
subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed
to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such date of first use.
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(6)
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That, for the purpose
of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the
securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus
or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus
relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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(iii)
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The portion of any other
free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and
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(iv)
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Any other communication
that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
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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.
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(c)
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The undersigned registrant
hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the
subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities
to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters
is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be
filed to set forth the terms of such offering.
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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 this Registration Statement or Amendment thereto on Form F-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lishui,
Zhejiang Province, the PRC on August 22, 2016.
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TANTECH HOLDINGS LTD
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By:
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/s/ Zhengyu Wang
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Name:
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Zhengyu Wang
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Title:
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Chief Executive Officer
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(Principal Executive Officer)
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By:
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/s/ Jing Jin
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Name:
|
Jing Jin
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Title:
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Chief Financial Officer
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(Principal Accounting and Financial
Officer)
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Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Zhengyu Wang and Jing Jin, and each of them, his or her true
and lawful attorneys-in-fact and agents, each with full power of substitution and re-substitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this
Registration Statement and any and all related registration statements pursuant to Rule 462(b) of the Securities Act, and to file
the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, the following persons in the capacities and on the dates indicated have signed this Registration Statement or Amendment
thereto on Form F-3.
SIGNATURE
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TITLE
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DATE
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/s/ Zhengyu
Wang
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Chief Executive Officer and Chairman of
Board of Directors
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August 22, 2016
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Zhengyu Wang
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(Principal Executive Officer)
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/s/ Jing
Jin
|
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Chief Financial Officer
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August 22, 2016
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Jing Jin
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(Principal Accounting and Financial Officer)
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/s/ Yefang
Zhang
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Director
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August 22, 2016
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Yefang Zhang
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/s/ Wencai
Pan
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Director
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|
August 22, 2016
|
Wencai Pan
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|
|
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/s/ Hongdao
Qian
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|
Director
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August 22, 2016
|
Hongdao Qian
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|
|
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/s/ Shudong
Wang
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Director
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August 22, 2016
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Shudong Wang
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EXHIBIT INDEX
Exhibit
Number
|
|
Description of Exhibit
|
1.1*
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|
Form of underwriting agreement.
|
3.1
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|
Amended and Restated Articles of Association (Incorporated by reference to the registrant’s registration statement on Form F-1, File no. 333-198788, filed on September 16, 2014, as amended)
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3.2
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Memorandum of Association of the Registrant (Incorporated by reference to the registrant’s registration statement on Form F-1, File no. 333-198788, filed on September 16, 2014, as amended)
|
4.1
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|
Specimen Share Certificate (Incorporated by reference to the registrant’s registration statement on Form F-1, File no. 333-198788, filed on September 16, 2014, as amended)
|
4.2*
|
|
Form of Senior Debt Indenture
|
4.3*
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|
Form of Subordinated Debt Indenture
|
4.4*
|
|
Form of Senior Note
|
4.5*
|
|
Form of Subordinated Note
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4.6*
|
|
Form of Ordinary Share Warrant Agreement and Warrant Certificate
|
4.7*
|
|
Form of Debt Securities Warrant Agreement and Warrant Certificate
|
4.8*
|
|
Form of Unit Agreement (including unit certificate)
|
4.9*
|
|
Form of Depositary Agreement (including depositary receipt)
|
4.10*
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|
Form of Rights Agreement (including rights certificate)
|
4.11*
|
|
Form of Share Purchase Unit
|
5.1+
|
|
Opinion of Campbells
|
5.2+
|
|
Opinion of Cadwalader Wickersham & Taft LLP
|
8.1*
|
|
Opinion of British Virgin Islands Tax Counsel
|
8.2*
|
|
Opinion of U.S. Tax Counsel
|
23.1+
|
|
Consent of Friedman LLP
|
23.3+
|
|
Consent of Campbells (contained in Exhibit 5.1)
|
23.4+
|
|
Consent of Cadwalader Wickersham & Taft LLP (contained in Exhibit 5.2)
|
24.1+
|
|
Power of Attorney (contained on signature page)
|
25.1**
|
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, of a trustee acceptable to the registrant, as trustee under any new indenture.
|
|
*
|
To the extent applicable,
to be filed by an amendment or as an exhibit to a document filed under the Exchange Act and incorporated by reference herein.
|
|
**
|
To be filed in accordance
with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939 prior to any issuance of Debt Securities.
|
|
+
|
Filed or furnished herewith.
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