As filed with the Securities and Exchange Commission
on May 12, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
F-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
TDH
HOLDINGS, INC.
(Exact
Name of Registrant as Specified in its Charter)
British
Virgin Islands
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Not
Applicable
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(State
or other Jurisdiction of
Incorporation or Organization)
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(I.R.S.
Employer
Identification Number)
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c/o
Qingdao Tiandihui Foodstuffs Co. Ltd.,
2521
Tiejueshan Road, Huangdao District, Qingdao, Shandong Province
People’s
Republic of China
Tel:
+86-532-8615-7918
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Puglisi & Associates.
850 Library Avenue, Suite 204
Newark, Delaware 19711
(302) 738-6680
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
With
copies to:
Matthew
B. Chmiel, Esq.
Haneberg
Hurlbert PLC
1111
E. Main St., Suite 2010
Richmond,
Virginia 232219
(804)
554-4803
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
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, as amended, or the Securities Act, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.C. 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.C. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging
growth company ☒
If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided
pursuant to Section 7(a)(2)(B) of the Securities Act . ☐
†
The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards
Board to its Accounting Standards Codification after April 5, 2012.
CALCULATION
OF REGISTRATION FEE
Title of Each Class of Securities to be Registered(1)(2)
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Amount to be Registered(1)(2)(4)
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Proposed Maximum Aggregate
Offering Price(1)(3)(4)
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Amount of Registration
Fee(4)(5)
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Common Shares, par value $0.001
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Share Purchase Contacts and Share Purchase Units(6)
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Debt Securities(7)
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Warrants(8)
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Rights(9)
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Units(10)
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Total
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$
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75,000,000
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$
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8,182.50
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(11)
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(1)
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There
are being registered hereunder such indeterminate number of (i) common shares, (ii) share
purchase contracts and share purchase units, (iii) debt securities, (iv) warrants, (v) rights
and (iv) units, as shall have an aggregate initial offering price not to exceed $75,000,000
or such lesser aggregate amount permitted under General Instruction I.B.5 to Form F-3 under
the Securities Act. Such indeterminate amounts may from time to time be issued at indeterminate
prices, in U.S. Dollars. Any securities registered hereunder may be sold separately or as
units with other securities registered hereunder. This registration statement also includes
such presently indeterminate number of securities as may be issuable from time to time upon
conversion or upon exercise of, or in exchange for, any such convertible or exchangeable
securities registered hereunder or pursuant to the anti-dilution provisions of any such securities.
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(2)
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Pursuant
to Rule 416 under the Securities Act of 1933, the securities offered hereby shall be deemed
to cover additional securities to be offered to prevent dilution resulting from share splits,
share dividends or similar transactions.
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(3)
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The
proposed maximum per unit and aggregate offering prices per security will be determined,
from time to time, by the registrant in connection with the issuance by the registrant of
the securities registered hereunder.
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(4)
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The
amount to be registered, proposed maximum aggregate offering price per unit and proposed
maximum aggregate offering price are not specified as to each class of security pursuant
to General Instruction II.C of Form F-3 under the Securities Act. The proposed maximum aggregate
offering price is estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933.
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(5)
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With
respect to securities to be offered for sale by the Registrant in the primary offering, the
registration fee is calculated in accordance with Rule 457(o) of the Securities Act of 1933.
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(6)
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Share
purchase contracts to purchase common shares or other securities registered hereunder. Share
purchase contracts may be issued separately or as share purchase units. Share purchase units
may consist of a share purchase contract and debt securities, warrants, other securities
registered hereunder or debt obligations of third parties, including U.S. treasury securities,
securing the holders’ obligations to purchase the securities under the share purchase
contracts.
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(7)
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May
include senior or subordinated debt.
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(8)
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Warrants
may entitle the holder to purchase our common shares, debt securities or any combination
thereof. Warrants may be issued independently or together with common shares, and the
warrants may be attached to or separate from such securities.
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(9)
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Rights
evidencing the right to purchase common shares, or debt securities.
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(10)
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Each
unit may consist of one or more of the other securities described in this prospectus in any
combination.
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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 or until the registration statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. No person may sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 12,
2021
$75,000,000
Common
Shares, Share Purchase Contracts, Share Purchase Units, Warrants, Debt Securities, Rights and Units
We
may offer and sell, from time to time in one or more offerings on terms we may determine at the time of offering, any combination of
common shares, warrants, debt securities, rights, share purchase contracts, share purchase units or units having an aggregate initial
offering price of up to $75,000,000.
We
will provide the specific terms of these securities in supplements to this prospectus. The prospectus supplement may also add, update
or change information in this prospectus. Before you invest, we urge you to read carefully this prospectus and any prospectus supplement,
as well as the documents incorporated by reference or deemed to be incorporated by reference into this prospectus.
These
securities may be offered and sold in the same offering or in separate offerings; to or through underwriters, dealers, and agents; or
directly to purchasers. The names of any underwriters, dealers, or agents involved in the sale of our securities, their compensation
and any over-allotment options held by them will be described in the applicable prospectus supplement. For a more complete description
of the plan of distribution of these securities, see the section entitled “Plan of Distribution” beginning on page 18 of
this prospectus.
Our common shares are listed on the NASDAQ Capital
Market under the symbol “PETZ”. On May 11, 2021, the closing sale price of our common shares as reported by the NASDAQ
Capital Market was $2.03. We have not offered any securities pursuant to General Instruction I.B.5 of Form F-3 during the prior 12 calendar
month period that ends on and includes the date of this prospectus. We will provide information in any applicable prospectus supplement
regarding any listing of securities other than our common shares on any securities exchange.
The aggregate market value of our outstanding common
shares held by non-affiliates was approximately $85 million based on 54,949,995 shares of outstanding common shares as of the date of
this filing, of which 25,568,750 shares are held by non-affiliates, and a per share price of $3.34 based on the closing sale price of
our common shares as reported by the Nasdaq Capital Market on March 15, 2021.
This
prospectus may not be used to offer or sell our securities unless accompanied by a prospectus supplement. The information contained or
incorporated in this prospectus or in any prospectus supplement is accurate only as of the date of this prospectus, or such prospectus
supplement, as applicable, regardless of the time of delivery of this prospectus or any sale of our securities.
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 4 of this prospectus and in the applicable prospectus supplement before you make your investment
decision.
Neither
the Securities and Exchange Commission, British Virgin Islands, 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 ,
2021
Table
of Contents
We
have not authorized any dealer, salesperson or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus. You must not rely upon any information or representation not contained or incorporated
by reference in this prospectus. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities
other than the registered securities to which it relates, nor does this prospectus constitute an offer to sell or the solicitation of
an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus is accurate on any date subsequent to the date set forth on its
front cover or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated
by reference, even though this prospectus is delivered or securities are sold on a later date.
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 $75,000,000
(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.
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.”
The terms “we,” “us,” “Company”
“our company,” and “our” refers to TDH HOLDINGS, INC., a British Virginia Islands Company and its subsidiaries:
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TDH HK Limited, a Hong Kong company wholly-owned by TDH HOLDINGS, INC.;
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TDH Foods Limited, a Hong Kong company wholly-owned by TDH HOLDINGS, INC.;
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TDH Group BVBA, a Belgium company wholly-owned by TDH HOLDINGS, INC., and is currently under bankruptcy proceeding as of the date of this filing;
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TDH JAPAN, a Japanese company wholly-owned by TDH
HOLDINGS, INC. and has been deregistered and dissolved as of the date of this filing
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Qingdao Tiandihui Foodstuffs Co., Ltd., a Chinese limited liability company;
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Qingdao Tiandihui Pet Foodstuffs Co., Ltd., a Chinese limited liability company;
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Qingdao Tiandihui Foodstuffs Sales Co., Ltd., a Chinese limited liability company;
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TDH Petfood LLC, a Nevada limited liability company; and
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Beijing Chongai Jiujiu Cultural Communication Co., Ltd.
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“shares” “common shares” and “Common Shares” refer to our common shares, $0.001 par value per share;
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“China” and “PRC” refer to the People’s Republic of China, excluding, for the purposes of this annual report only, Macau, Taiwan and Hong Kong; and
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all references to “RMB,” and “Renminbi” are to the legal currency of China, and all references to “USD,” and “U.S. Dollars” are to the legal currency of the United States.
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For
the sake of clarity, this annual report follows the English naming convention of first name followed by last name, regardless of whether
an individual’s name is Chinese or English. For example, the name of our chief executive officer will be presented as “Dandan Liu”, even though, in Chinese, her name would be presented as “Liu Dandan”.
OUR
COMPANY
Business
Overview
We
started our company in 2002 in Qingdao, Shandong Province, PRC with a single mission of becoming a premier producer of high-quality pet
food for pet owners in China and worldwide. Historically, our growth has been driven by two key factors: a significant increase in the
number of pet owners and in the size of the pet food market in China which translated into expansion opportunities for us, and a fundamental
change in Chinese society towards pets, pet ownership and care, such that the trends of pet humanization and consumer concerns for pet
health and wellness have created a dynamically growing industry for pet food and products. We price our products to be accessible to
the average consumer, providing us with broad demographic appeal and allowing us to penetrate multiple market segments.
Our
Products
The
pet food market consists of dog food and cat food sales. Food sales are further categorized as dry food, wet food and treats:
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Dry food is the primary
food form for both dogs and cats, with the same formula typically purchased regularly. Veterinarians recommend dry food for healthy
pets as the main meal, which is better for pets’ teeth, has better economic value and is more convenient to handle and store
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Wet food has higher
penetration among cats as compared to dogs, as it helps to ensure that cats meet their required water intake. Most cat owners feed
their cats a combination of dry and wet foods as main meals, while most dog owners feed their dogs wet foods as a treat or topper
to provide variety
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Treats are typically
impulse purchases by pet owners made alongside staple, main meal dry and wet food purchases. Many treats have dental and training
benefits and also serve as nutritional supplements. Dog and cat treats have been growing rapidly over the last decade driven by the
humanization trend with pet owners indulging their pets more, including by purchasing treats as gifts.
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Product
research and innovation is pivotal to our growth strategy. Our experienced team of marketing and R&D professionals is in constant
contact with our outside collaborators and experts. The success of our approach is evidenced by our broad product portfolio today. Although
our R&D expense decreased in 2020, we strive to maintain a strong innovation pipeline that expands the breadth of our current product
offerings.
We
offer in excess of 200 products, including dry meat treats, pet biscuits, canned food and other products (including non-food items like
dog leashes and pet toys) under multiple brands in various geographical markets. Currently, we offer 4 product lines including the following:
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Pet chews represent approximately
20% of our production and include various bones, rawhide and similar products,
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Dried pet snacks represent
approximately 66.6% of our production and include various fillets, strips and jerkies (chicken, duck, pork, lamb, etc.),
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Wet canned pet foods represent
approximately 8.6% of our production and include various fillets, strips and jerkies (chicken, duck, pork, lamb, etc.),
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Dental health snacks foods
account for approximately 4.8% of our production.
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We
manufacture these products at our Pude facility with 4 production lines: dried meat, chews, wet canned, and dentifrice products.
These
food products vary from those consisting of a single protein ingredient (e.g., duck jerky) to those consisting of a combination of protein
and other ingredients (e.g., twisted cod and chicken sandwich roll that includes chicken, cod and Vitamin E). Our proprietary recipes
include fresh meat (beef, chicken, lamb, and fish) and varying combinations of vitamin-rich vegetables, and anti-oxidant rich fruits.
We believe our products appeal to diverse consumer needs and resonate across a broad cross-section of pet owner demographics. Our products
are available in multiple forms, including slice and serve rolls, strips, tubs, etc.
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The Pude facility maintains
a production area of 30,565 sq. feet with a 20-year export processing history. We maintain ISO9001, hazard analysis critical Control
Points (HACCP), British Retail Consortium (BRC) and International Characteristic Standards (IFS) certification, as well as EU and
Japanese registered facilities. The daily production capacity for this facility is approximately 4.6 tons.
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The Jiaozhou facility has
production area of 30,062 square feet. Our daily production capacity at this facility is approximately 0.8 ton.
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GENERAL
DESCRIPTION OF THE SECURITIES WE MAY OFFER
We
may offer our common shares, share purchase contracts, share purchase units, warrants, debt securities, rights or units, with a
total value of up to $75,000,000 from time to time under this prospectus at prices and on terms to be determined by our board of directors
and based on market conditions at the time of any offering. This prospectus provides you with a general description of the securities
we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will
describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
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Designation or classification;
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Aggregate offering price;
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Rates and times of payment or dividends, if any;
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Redemption, conversion, exercise and exchange terms,
if any;
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Restrictive covenants, if any;
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Voting or other rights, if any;
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Conversion price, if any; and
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Material U.S. federal income tax considerations.
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The
prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change
information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free
writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of
the registration statement of which this prospectus is a part.
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.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, each prospectus supplement and the information incorporated into this prospectus contain certain statements that constitute
forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange
Act of 1934. All statements contained in this prospectus, each prospectus supplement and the information incorporated into this prospectus
other than statements of historical fact, including statements regarding our future results of operations and financial position, our
business strategy and plans, and our objectives for future operations, are forward-looking statements. The words “believe,”
“may,” “will,” “estimate,” “continue,” “anticipate,” “intend,”
“expect,” and similar expressions are intended to identify forward-looking statements. We have based these forward-looking
statements largely on our current expectations and projections about future events and trends that we believe may affect our financial
condition, results of operations, business strategy, short-term and long-term business operations and objectives, and financial needs.
These forward-looking statements are subject to a number of risks, uncertainties and assumptions, including those described in the “Risk
Factors” section. Moreover, we operate in a very competitive and rapidly changing environment. New risks emerge from time to time.
It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent
to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking
statements we may make. In light of these risks, uncertainties and assumptions, the future events and trends discussed in this annual
report may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking
statements.
You
should not rely upon forward-looking statements as predictions of future events. The events and circumstances reflected in the forward-looking
statements may not be achieved or occur. Although we believe that the expectations reflected in the forward-looking statements are reasonable,
we cannot guarantee future results, levels of activity, performance, or achievements. We are under no duty to update any of these forward-looking
statements after the date of this annual report or to conform these statements to actual results or revised expectations.
CAPITALIZATION
The
table below sets forth our capitalization as of December 31, 2020
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As of
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December 31,
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2020
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Cash
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Cash and cash equivalents
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$
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6,566,549
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Equity
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Common stock ($0.001 par value; 200,000,000 shares authorized; 45,849,995 shares issued and outstanding at December 31, 2020)
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45,850
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Additional paid-in capital
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21,963,570
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Statutory reserves
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160,014
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Accumulated deficit
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(22,849,319
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)
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Accumulated other comprehensive loss
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(212,895
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)
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Total stockholders’ deficit
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(892,780
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)
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Total capitalization
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$
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(892,780)
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RATIO
OF EARNINGS TO FIXED CHARGES
Our
ratio of earnings to fixed charges for each of the five (5) most recently completed fiscal years and any required interim periods will
each be specified in a prospectus supplement or in a document we file with the SEC and incorporate by reference pertaining to the issuance,
if any, by us of debt securities in the future.
USE
OF PROCEEDS
Except
as otherwise provided in a prospectus supplement, we expect to use the net proceeds from the sale of securities offered pursuant to this
prospectus for general corporate purposes, including for our research and development needs for current and future products, expansion
of marketing efforts, and possible acquisitions of complementary assets or businesses. When a particular series of securities is offered,
the prospectus supplement relating to that offering will set forth our intended use of the net proceeds received from the sale of those
securities.
DESCRIPTION
OF SHARE CAPITAL
We were incorporated as an international business company
under the International Business Companies Act, 1984, in the British Virgin Islands on September 30, 2015 under the name “TDH HOLDINGS,
INC.”, company no. 1891463. As of the date of this prospectus, we have authorized 200,000,000 common shares, of $0.001 par value.,
of which 54,949,995 shares are issued and outstanding.
Common
Shares
General
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.
Listing
Our
common shares are listed on The NASDAQ Capital Market under the symbol “PETZ.”
Transfer
Agent and Registrar
The
transfer agent and registrar for the common shares is VStock Transfer, LLC, 18 Lafayette Place, Woodmere, NY 11598.
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.
General meetings of shareholders
Any director of the Company may
convene meetings of the Shareholders at such times and in such manner and places within or outside the British Virgin Islands as the director
considers necessary or desirable.
Upon the written request of Shareholders
entitled to exercise 30 percent or more of the voting rights in respect of the matter for which the meeting is requested the directors
shall convene a meeting of Shareholders.
The director convening a meeting
shall give not less than 7 days’ notice of a meeting of Shareholders to: (a) those Shareholders whose names on the date the notice
is given appear as Shareholders in the register of members and are entitled to vote at the meeting; and (b) the other directors.
Quorum of a meeting of shareholders
A meeting of Shareholders is duly
constituted if, at the commencement of the meeting, there are present in person or by proxy not less than one-third (1/3) of the votes
of the Shares entitled to vote on Resolutions of Shareholders to be considered at the meeting. A quorum may comprise a single Shareholder
or proxy and then such person may pass a Resolution of Shareholders and a certificate signed by such person accompanied where such person
be a proxy by a copy of the proxy instrument shall constitute a valid Resolution of Shareholders.
Voting
rights
Any action required or permitted to be taken by the
shareholders must be effected at a duly called meeting of the shareholders entitled to vote on such action or may be effected by a resolution
in writing. At each meeting of shareholders, each shareholder who is present in person or by proxy (or, in the case of a shareholder other
than an individual, by its duly authorized representative) will have one vote for each common share that such shareholder holds.
Variation of rights
If at any time the Shares are
divided into different classes, the rights attached to any class may only be varied, whether or not the Company is in liquidation, 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.
Rights not varied by the
issue of shares pari passu
The rights conferred upon the
holders of the Shares of any class shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be
deemed to be varied by the creation or issue of further Shares ranking pari passu therewith.
Liquidation
If
we are wound up and the assets available for distribution among our shareholders are more than sufficient to repay all amounts paid to
us on account of the issue of shares immediately prior to the winding up, the excess shall be distributable pari passu among
those shareholders in proportion to the amount paid up immediately prior to the winding up on the shares held by them, respectively.
If we are wound up and the assets available for distribution among the shareholders as such are insufficient to repay the whole of the
amounts paid to us on account of the issue of shares, those assets shall be distributed so that, to the greatest extent possible, the
losses shall be borne by the shareholders in proportion to the amounts paid up immediately prior to the winding up on the shares held
by them, respectively. If we are wound up, the liquidator appointed by us may, in accordance with the BVI Act, divide among our 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 and may determine how such division shall be carried
out as between the shareholders or different classes of shareholders.
Calls
on common shares and forfeiture of common shares
Our
board of directors may, on the terms established at the time of the issuance of such shares or as otherwise agreed, 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 are subject to forfeiture.
Redemption
of common shares
Subject
to the provisions of the BVI Act, we may issue shares on terms that are subject to redemption, at our option or at the option of the
holders, on such terms and in such manner as may be determined by our memorandum and articles of association and subject to 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.
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, join 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.
Warrants
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.
Warrant
Agreement Will Not Be Qualified Under Trust Indenture Act
No
warrant agreement will be qualified as an indenture, and no warrant agent will be required to qualify as a trustee, under the Trust Indenture
Act. Therefore, holders of warrants issued under a warrant agreement will not have the protection of the Trust Indenture Act with respect
to their 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 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 Company. 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 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 foreign 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 and 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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all 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 the Company whether voluntary or involuntary or in bankruptcy;
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insolvency or receivership;
and
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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; and
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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;
or
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certain events of bankruptcy,
insolvency or reorganization of the Company;
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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 interest;
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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 or as otherwise agreed to by the parties
thereto.
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 Memorandum and Articles of Association.
Description
of Units
We
may issue units comprising 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 Share Purchase Contracts and Share Purchase Units
We
may issue share purchase contracts, including contracts obligating holders to purchase from us, and obligating us to sell to the holders,
a specified number of Common Shares or other securities registered hereunder at a future date or dates, which we refer to in this prospectus
as “share purchase contracts.” The price per share of the securities and the number of shares of the securities may be fixed
at the time the share purchase contracts are issued or may be determined by reference to a specific formula set forth in the share purchase
contracts.
The
share purchase contracts may be issued separately or as part of units consisting of a share purchase contract and debt securities, warrants,
other securities registered hereunder or debt obligations of third parties, including U.S. treasury securities, securing the holders’
obligations to purchase the securities under the share purchase contracts, which we refer to herein as “share purchase units.”
The share purchase contracts may require holders to secure their obligations under the share purchase contracts in a specified manner.
The share purchase contracts also may require us to make periodic payments to the holders of the share purchase units or vice versa,
and those payments may be unsecured or refunded on some basis.
The
share purchase contracts, and, if applicable, collateral or depositary arrangements, relating to the share purchase contracts or share
purchase units, will be filed with the SEC in connection with the offering of share purchase contracts or share purchase units. The prospectus
supplement relating to a particular issue of share purchase contracts or share purchase units will describe the terms of those share
purchase contracts or share purchase units, including the following:
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if applicable, a discussion of material tax considerations;
and
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any other information we think is important about the
share purchase contracts or the share purchase units.
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Description
of Rights
We
may issue rights to purchase Common Shares that we may offer to our security holders. 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 security holders entitled
to the rights distribution;
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the aggregate number of rights issued and the aggregate
number of Common Shares purchasable upon exercise of the rights;
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the exercise price;
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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 debt securities or Common Shares 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 described in this prospectus through underwriters or dealers, through agents, or directly to one or more purchasers
or through a combination of these methods. The applicable prospectus supplement will describe the terms of the offering of the securities,
including:
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the name or names of any
underwriters, if any, and if required, any dealers or agents, and the amount of securities underwritten or purchased by each of them,
if any;
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the public offering price
or purchase price of the securities from us and the net proceeds to us from the sale of the securities;
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any discounts or concessions
allowed or re-allowed 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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We
may distribute the securities from time to time in one or more transactions at:
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a fixed price or prices,
which may be changed;
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market prices prevailing
at the time of sale;
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varying prices determined
at the time of sale related to such prevailing market prices; or
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Only
underwriters named in the prospectus supplement will be underwriters of the securities offered by the prospectus supplement.
If
we use underwriters in the sale, the underwriters will either acquire the securities for their own account and may resell the securities
from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale, or
sell the Shares on a “best efforts, minimum/maximum basis” when the underwriters agree to do their best to sell the securities
to the public. We may offer the securities to the public through underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Any public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may change from
time to time.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, the securities
will be sold directly 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.
Our
Common Shares are listed on the NASDAQ Capital Market. Unless otherwise specified in the related prospectus supplement, all securities
we offer, other than Common Shares, will be new issues of securities with no established trading market. Any underwriter 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 may apply
to list any series of warrants or other securities that we offer on an exchange, but we are not obligated to do so. Therefore, there
may not be liquidity or a trading market for any series of securities.
We
may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering and
sale of securities and we will describe any commissions we may pay the agent in the applicable prospectus supplement.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified
date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts
in the applicable prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers of the
securities for whom they act as agents in the form of discounts, concessions or commissions. Underwriters may sell the securities to
or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution
of the securities, and any institutional investors or others that purchase securities directly and then resell the securities, may be
deemed to be underwriters, and any discounts or commissions received by them from us and any profit on the resale of the securities by
them may be deemed to be underwriting discounts and commissions under the Securities Act.
We
may provide agents and underwriters with indemnification against particular civil liabilities, including liabilities under the Securities
Act, or contribution with respect to payments that the agents or underwriters may make with respect to such liabilities. Agents and underwriters
may engage in transactions with, or perform services for, us in the ordinary course of business.
In
addition, we may enter into derivative transactions with third parties (including the writing of options), or sell securities not covered
by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection
with such a transaction, the third parties may, pursuant to this prospectus and the applicable prospectus supplement, sell securities
covered by this prospectus and the applicable prospectus supplement. If so, the third party may use securities borrowed from us or others
to settle such sales and may use securities received from us to close out any related short positions. We may also loan or pledge securities
covered by this prospectus and the applicable prospectus supplement to third parties, who may sell the loaned securities or, in an event
of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus supplement.
The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement or in
a post-effective amendment.
To
facilitate an offering of a series of securities, persons participating in the offering may engage in transactions that stabilize, maintain,
or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities, which involves
the sale by persons participating in the offering of more securities than have been sold to them by us. In those circumstances, such
persons would cover such over-allotments or short positions by purchasing in the open market or by exercising the over-allotment option
granted to those persons. In addition, those persons may stabilize or maintain the price of the securities by bidding for or purchasing
securities in the open market or by imposing penalty bids, whereby selling concessions allowed to underwriters or dealers participating
in any such offering may be reclaimed if securities sold by them are repurchased in connection with stabilization transactions. The effect
of these transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise
prevail in the open market. Such transactions, if commenced, may be discontinued at any time. We make no representation or prediction
as to the direction or magnitude of any effect that the transactions described above, if implemented, may have on the price of our securities.
LEGAL
MATTERS
Unless otherwise indicated in the applicable prospectus
supplement, the validity of the securities registered and certain legal matters as to British Virgin Islands law in connection with this
offering will be passed upon for us by Ogier, British Virgin Islands counsel to our Company. 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 years ended December 31, 2020
and 2019 have been audited by MaloneBailey, LLP, an 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 firm
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 business company, 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.
Our agent for service of process in the United States
is Puglisi & Associates, 850 Library Avenue, Suite 204, Newark, DE 19711.
Guo Rui Law Firm,
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.
Guo Rui Law Firm
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. Notwithstanding the absence of a bilateral agreement with the United States, a provincial intermediate court in
China has recognized and enforced a US court judgment. As a result of the absence of treaties and recent changes in court rulings, it
is uncertain whether a Chinese court would enforce a judgment rendered by a court in either of these two countries.
We have been advised by Ogier, our counsel as to British
Virgin Islands law, that although there is no statutory enforcement in the British Virgin Islands of judgments obtained in U.S. federal
or state courts, the courts of the British Virgin Islands will recognize such a foreign judgment and treat it as a cause of action in
itself which may be sued upon as a debt at common law so that no retrial of the issues would be necessary if fresh proceedings are brought
in the British Virgin Islands to enforce that judgment, provided however that such judgment: (i) is not in respect of penalties, fines,
taxes or similar fiscal or revenue obligations of the Company; (ii) is final and for a liquidated sum; (iii) was not obtained in a fraudulent
manner; (iv) is not of a kind the enforcement of which is contrary to the public policy in the British Virgin Islands; (v) is not contrary
to the principles of natural justice; and (vi) provided that the U.S. federal or state courts had jurisdiction in the matter and the Company
either submitted to such jurisdiction or was resident or carrying on business within such jurisdiction and was duly served with process.
Non-money judgments from a foreign court are not directly enforceable in the British Virgin Islands. However, it is possible for a non-money
judgment from a foreign court to be indirectly enforced by means of a claimant bringing an identical action in the courts of the British
Virgin Islands in respect of which a non-money judgment has been made by a foreign court. In appropriate circumstances, the courts of
the British Virgin Islands may give effect to issues and causes of action determined by the foreign court, such that those matters need
not be retried.
WHERE
YOU CAN FIND MORE INFORMATION
We
are a reporting company and file annual, current reports, proxy statements and other information with the SEC. This prospectus does not
contain all of the information set forth in the registration statement or the exhibits that are a part of the registration statement.
You may read and copy the registration statement and any document we file with the SEC at the public reference room maintained by the
SEC at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the public reference room by calling
the SEC at 1-800-SEC-0330. Our filings with the SEC are also available to the public through the SEC’s Internet site at http://www.sec.gov.
INCORPORATION
OF CERTAIN DOCUMENTS 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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Annual Report on Form
20-F for the fiscal year ended December 31, 2020, filed on April 26, 2021;
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The description of our Common Shares contained in our
Form 8A-12B, filed on
September 14, 2017.
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In
addition, we may incorporate by reference into this prospectus our reports on Form 6-K filed after the date of this prospectus (and before
the time that all of the securities offered by this prospectus have been sold or de-registered) if we identify in the report that it
is being incorporated by reference in this prospectus.
Certain
statements in and portions of this prospectus update and replace information in the above listed documents incorporated by reference.
Likewise, statements in or portions of a future document incorporated by reference in this prospectus may update and replace statements
in and portions of this prospectus or the above listed 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 (i) after the filing date of the registration statement of which this prospectus is a part and prior to effectiveness
of that registration statement or (ii) 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 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 by accessing them pursuant to the directions described above in the section titled “Where You
Can Find More Information.” You may also obtain a copy of these filings, without charge, by writing or calling us at:
TDH HOLDINGS, INC.
c/o Qingdao Tiandihui Foodstuffs Co. Ltd.,
2521 Tiejueshan Road, Huangdao District, Qingdao, Shandong
Province
People’s Republic of China
Attention: Investor Relations
Tel: +86-532-8615-7918
TDH
HOLDINGS, INC.
$75,000,000
Common
Shares, Share Purchase Contracts, Share Purchase Units, Warrants, Debt Securities, Rights and Units
PROSPECTUS
, 2021
We have
not authorized any dealer, salesperson or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus. You must not rely upon any information or representation not contained or incorporated
by reference in this prospectus. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities
other than the registered securities to which it relates, nor does this prospectus constitute an offer to sell or the solicitation of
an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus is accurate on any date subsequent to the date set forth on its
front cover or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated
by reference, even though this prospectus is delivered or securities are sold on a later date.
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 memorandum and 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
our memorandum and articles of association, we may indemnify our 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 company and, in the case of criminal proceedings, they must have had no reasonable cause to believe
their conduct was unlawful. Such limitation of liability does not affect the availability of equitable remedies such as injunctive relief
or rescission. These provisions will not limit the liability of directors under United States federal securities laws.
We
may indemnify any of our directors or anyone serving at our request as a director of another entity 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. We may only indemnify a director if he or she acted honestly and in good faith with the view to our best
interests and, in the case of criminal proceedings, the director had no reasonable cause to believe that his or her conduct was unlawful.
The decision of our board of directors as to whether the director acted honestly and in good faith with a view to our best interests
and as to whether the director had no reasonable cause to believe that his or her conduct was unlawful, is in the absence of fraud sufficient
for the purposes of indemnification, unless a question of law is involved. The termination of any proceedings by any judgment, order,
settlement, conviction or the entry of no plea does not, by itself, create a presumption that a director did not act honestly and in
good faith and with a view to our best interests or that the director had reasonable cause to believe that his or her conduct was unlawful.
If a director to be indemnified has been successful in defense of any proceedings referred to above, the director is entitled to be indemnified
against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred by
the director or officer in connection with the proceedings.
We
may purchase and maintain insurance in relation to any of our directors or officers against any liability asserted against the directors
or officers and incurred by the directors or officers in that capacity, whether or not we have or would have had the power to indemnify
the directors or officers against the liability as provided in our amended and restated memorandum and articles of association.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling
the Registrant pursuant to the foregoing provisions, the Registrant has been informed 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.
(a)
The undersigned registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration statement; and (iii) to include any material
information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to
such information in the registration statement; provided, however, that paragraphs (a)(1)(i), (ii) and (iii) above do not apply
if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the registration statement; (2) that, for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (3) to remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of this offering;
and (4) 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 Securities Act of 1933 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, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3)
of the Securities Act of 1933 or Rule 3-19 of Regulation S-X if such financial statements and information are contained in periodic reports
filed with or furnished to the SEC 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.
(b)
The undersigned registrant hereby undertakes that, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) 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, (ii) 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 this 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 (iii) f 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.
(c)
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: (i) Any preliminary prospectus or prospectus
of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) 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; (iii) 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 (iv) Any other communication that is an offer in the offering
made by the undersigned registrant to the purchaser.
(d)
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.
(e)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
(f)
The undersigned registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the
time it was declared effective.
(2)
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
(g)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing
on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Qingdao, People’s Republic of China, on May 12, 2021.
|
TDH HOLDINGS, INC.
|
|
|
|
|
By:
|
/s/ Dandan Liu
|
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Name:
|
Dandan Liu
|
|
Title:
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Chief Executive Officer
|
|
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(Principal Executive Officer)
|
|
|
|
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Dated:
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May 12, 2021
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Dandan Liu as his or
her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement
and sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing
pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended and all post-effective amendments thereto and to file
the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith and about the premises, as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or her substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in
the capacities and on the dates indicated:
Signature
|
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Title
|
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Date
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|
|
|
|
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/s/ Dandan Liu
|
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Chief Executive Officer and Director
|
|
May 12, 2021
|
Dandan Liu
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
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/s/ Feng Zhang
|
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Chief Financial Officer
|
|
May 12, 2021
|
Feng Zhang
|
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(Principal Accounting and Financial Officer)
|
|
|
|
|
|
|
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/s/ Caifen Zou
|
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Director
|
|
May 12, 2021
|
Caifen Zou
|
|
|
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|
|
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/s/ Qiu Li
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Director
|
|
May 12, 2021
|
Qiu Li
|
|
|
|
|
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/s/ Owens Meng
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Director
|
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May 12, 2021
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Owens Meng
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SIGNATURE OF AUTHORIZED PERSON IN THE UNITED STATES
OF AMERICA
Pursuant to the Securities Act of 1933 as amended,
the undersigned, the duly authorized representative in the United States of America, has signed this registration statement thereto in
Newark, DE on May 12, 2021.
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By:
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/s/ Donald J. Puglisi
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Name:
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Donald J. Puglisi
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Title:
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Managing Director
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Puglisi & Associates
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EXHIBIT
INDEX
|
(*)
|
To
the extent applicable, to be filed by an amendment or an exhibit to a document filed under
the Exchange Act and incorporated by reference herein.
|
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