As filed with the Securities and Exchange
Commission on September 6, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DELTA
TECHNOLOGY HOLDINGS LIMITED
(Exact name of registrant as specified
in its charter)
|
British Virgins Islands
|
|
N/A
|
|
(State or other jurisdiction
of
incorporation or organization)
|
|
(I.R.S. Employer
Identification Number)
|
16 Kaifa Avenue
Danyang, Jiangsu, China 212300
+86 511-8673-3102
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Long Yi
Chief Executive Officer
16 Kaifa Avenue
Danyang, Jiangsu, China 212300
+86 511-8673-3102
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Joan Wu, Esq.
Hunter Taubman Fischer & Li LLC
1450 Broadway, 26th Floor,
New York, NY 10018
+212-530-2208
Approximate date
of commencement of proposed sale to the public:
From time to time after the effective date of the 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, check the following box.
x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering.
¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box.
¨
Indicate by check mark
whether the registrant is 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. ☐
CALCULATION OF REGISTRATION FEE
|
Title of Each Class of
Securities to be Registered
|
|
Amount
to be
Registered
(1)
|
|
|
Proposed
Maximum
Offering Price
Per Share
(2)
|
|
|
Proposed
Maximum
Aggregate
Offering Price
(2)
|
|
|
Amount of
Registration Fee
|
|
|
Ordinary Shares
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
Preferred Shares
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
Warrants
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
Units
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
$
|
50,000,000
|
|
|
$
|
6,225
|
|
|
(1)
|
We are registering an indeterminate number of ordinary shares, preferred shares, warrants to purchase ordinary shares and/or preferred shares and/or units, each of which may be offered from time to time at prices to be determined at the time of any such offering. The aggregate offering price of these securities will not exceed $50,000,000. Any securities registered hereunder may be sold separately from, or together in the same offering with, other securities registered hereunder. In addition, pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include such indeterminate number of ordinary shares and preferred shares as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
|
|
|
|
|
(2)
|
The proposed maximum aggregate offering price per class of security will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security in reliance on Rule 457(o) under the Securities Act of 1933.
|
|
|
|
|
(3)
|
Calculated pursuant to Rule 457(o) under the Securities Act of 1933.
|
|
|
|
|
(4)
|
Consisting of some or all of the securities listed above, in any combination, including ordinary shares, preferred shares, warrants and units.
|
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 that specifically states that this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933, as amended, or until this 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. We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and 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 September 6, 2018
PROSPECTUS
DELTA TECHNOLOGY
HOLDINGS LIMITED
$50,000,000
Ordinary Shares
Preferred Shares
Warrants
Units
We may, from time to
time in one or more offerings, offer and sell up to $50,000,000 in the aggregate of ordinary shares, preferred shares, warrants
to purchase ordinary shares or preferred shares, or any combination of the foregoing, either individually or as units comprised
of one or more of the other securities.
This prospectus
provides a general description of the securities we may offer. We will provide the specific terms of the securities offered in
one or more supplements to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in
connection with these offerings. The prospectus supplement and any related free writing prospectus may add, update or change information
contained in this prospectus. You should read carefully this prospectus, the applicable prospectus supplement and any related free
writing prospectus, as well as the documents incorporated or deemed to be incorporated by reference, before you invest in any of
our securities.
This prospectus may not be used to offer or sell any securities unless accompanied by the applicable prospectus
supplement.
Our ordinary
shares and redeemable warrants are no longer trading in the market. Pursuant to General Instruction I.B.5. of Form F-3, in no event
will we sell the securities covered hereby in a public primary offering with a value exceeding more than one-third of the aggregate
market value of our ordinary shares in any 12-month period so long as the aggregate market value of our outstanding ordinary shares
held by non-affiliates remains below $75,000,000. During the 12 calendar months prior to and including the date of this prospectus,
we have not offered or sold any securities pursuant to General Instruction I.B.5 of Form F-3.
Investing in our
securities involves a high degree of risk. See “Risk Factors” on page 7 of this prospectus and in the documents
incorporated by reference in this prospectus, as updated in the applicable prospectus supplement, any related free writing prospectus
and other future filings we make with the Securities and Exchange Commission that are incorporated by reference into this prospectus,
for a discussion of the factors you should consider carefully before deciding to purchase our securities.
We may
sell these securities directly to investors, through agents designated from time to time or to or through underwriters or dealers.
For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution”
in this prospectus. If any underwriters are involved in the sale of any securities with respect to which this prospectus is being
delivered, the names of such underwriters and any applicable commissions or discounts will be set forth in a prospectus supplement.
The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a
prospectus supplement.
Neither the Securities and Exchange
Commission 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 September 6, 2018.
ABOUT THIS PROSPECTUS
This prospectus is part
of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, under the Securities Act of
1933, as amended, or the Securities Act, using a “shelf” registration process. Under this shelf registration process,
we may from time to time sell ordinary shares, preferred shares or warrants to purchase ordinary shares or preferred shares, or
any combination of the foregoing, either individually or as units comprised of one or more of the other securities, in one or more
offerings up to a total dollar amount of $50,000,000. We have provided to you in this prospectus a general description of the securities
we may offer. Each time we sell securities under this shelf registration, we will, to the extent required by law, provide a prospectus
supplement that will contain specific information about the terms of that offering. We may also authorize one or more free writing
prospectuses to be provided to you that may contain material information relating to these offerings. 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 any documents that we have incorporated by reference into this prospectus. To the extent there
is a conflict between the information contained in this prospectus and the prospectus supplement or any related free writing prospectus,
you should rely on the information in the prospectus supplement or the related free writing prospectus; provided that if any statement
in one of these documents is inconsistent with a statement in another document having a later date – for example, a document
filed after the date of this prospectus and incorporated by reference into this prospectus or any prospectus supplement or any
related free writing prospectus – the statement in the document having the later date modifies or supersedes the earlier
statement.
We have not authorized
any dealer, agent or other person to give any information or to make any representation other than those contained or incorporated
by reference in this prospectus and any accompanying prospectus supplement, or any related free writing prospectus that we may
authorize to be provided to you. You must not rely upon any information or representation not contained or incorporated by reference
in this prospectus or an accompanying prospectus supplement, or any related free writing prospectus that we may authorize to be
provided to you. This prospectus and the accompanying prospectus supplement, if any, do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus
and the accompanying prospectus supplement 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, any applicable prospectus supplement or any related free writing prospectus
is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated
by reference is correct on any date subsequent to the date of the document incorporated by reference (as our business, financial
condition, results of operations and prospects may have changed since that date), even though this prospectus, any applicable prospectus
supplement or any related free writing prospectus is delivered or securities are sold on a later date.
As permitted by
SEC rules and regulations, the registration statement of which this prospectus forms a part includes additional information not
contained in this prospectus. You may read the registration statement and the other reports we file with the SEC at its website
or at its offices described below under “Where You Can Find More Information.”
Unless the context
otherwise requires, all references in this prospectus to “Delta Technology,” “we,” “us,” “our,”
“the Company” or similar words refer to Delta Technology Holdings Limited, together with our subsidiaries.
ABOUT Delta Technology
Overview
Delta Technology
(formerly CIS Acquisition Limited) was incorporated in the British Virgin Islands as a company with limited liability on November
28, 2011 as a special purpose acquisition company. On September 19, 2014, we closed the business combination with Elite Ride Limited,
a British Virgin Islands corporation (“Elite”), pursuant to that certain Stock Purchase Agreement (the “Purchase
Agreement”) by and among Delta Technology, Elite, Delta Advanced Materials Limited, a Hong Kong corporation (“Delta”)
and the shareholders of Elite (the “Elite Shareholders”) dated September 16, 2014. Delta Technology acquired all of
the shares of Elite from Elite Shareholders in exchange for the issuance to Elite Shareholders an aggregate of 6,060,000 ordinary
shares, of which 4,560,000 shares were issued at closing and 1,500,000 shares (“Earnout Payment Shares”) are held
in escrow and was to be released upon meeting of certain performance targets as specified in the Purchase Agreement (the “Acquisition”).
500,000 of the Earnout Payment Shares were released as a result of the Company meeting its performance targets for the fiscal
year ending June 30, 2015. 1,000,000 of the Earnout Payment Shares were cancelled on July 6, 2017 when the performance targets
as specified were not met.
As a result of the consummation
of the Acquisition, Elite is now our wholly subsidiary. Elite was incorporated under British Virgin Islands law on September 13,
2014 solely in contemplation of the Acquisition. It is currently the holding company of all the shares of Delta, which, in turn,
holds all the equity interests in four operating subsidiaries in the PRC: Jiangsu Yangtze Delta Fine Chemical Co., Ltd (“Jiangsu
Delta”), Jiangsu Zhengxin New Material Research and Development Co., Ltd (“Jiangsu Zhengxin”), Jiangsu Delta
Logistics Co., Ltd (“Jiangsu Logistics”), and Binhai Deda Chemical Co., Ltd (“Binhai Deda”) (collectively,
the “PRC Subsidiaries”).
Delta (formerly known
as China Deltachem Holdings Limited) was incorporated in Hong Kong on June 17, 2010. The principal activity of Delta is investment
holding and currently operates two wholly-owned subsidiaries in the People’s Republic of China (“PRC”): Jiangsu
Delta and Binhai Deda. Jiangsu Delta is the principal operating subsidiary of the Company and is engaged in the production of fine
specialty chemicals.
Headquartered in Zhenjiang
city, Jiangsu province, we are a fine and specialty chemical manufacturer, primarily engaged in manufacturing and selling of organic
compound including para-chlorotoluene (“PCT”), ortho-chlorotoluene (“OCT”), PCT/OCT downstream products,
and other by-product chemicals and distributing fine and specialty chemicals to end application markets including automotive, pharmaceutical,
agrochemical, dye & pigments, aerospace, ceramics, coating-printing, clean energy and food additives.
We collaborate with
reputable universities, such as the East China Normal University in order to secure our position as a market leader. We also closely
monitor the market for development, trends and technological innovations and solicit customer feedback so as to keep abreast with
market demands and industrial development.
As of the date of
this prospectus, we have a diversified clientele with more than 300 customers based either in domestic or overseas market. Approximately
97% of our sales are to domestic customers based in Jiangsu province, Anhui province, Zhejiang province, Hubei province, Guangdong
province and Chongqing Metropolitan, and the rest of its products are exported via distributors or trading companies to countries
outside the PRC which include but not limited to India, Brazil, Japan, European Union member countries and America.
Our revenue for the
fiscal years ended June 30, 2015, 2016 and 2017 were approximately $202 million, $53 million and $56 million, respectively, and
our profit before tax for the fiscal years ended June 30, 2015, 2016 and 2017 were $5.1 million, loss before tax of $7.6 million
and $28.4 million, respectively.
Corporate Information
Our principal
executive offices are located at 16 Kaifa Avenue, Danyang, Jiangsu, China 212300. Our telephone number at that address is +86 511-8673-3102.
We make available free of charge through our website our annual report on Form 20-F, current reports on Form 6-K, and amendments
to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, or the
Exchange Act, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. The
information contained in, or that can be accessed through, our website is not part of this prospectus or any prospectus supplement.
RISK FACTORS
Investing in our securities involves a high
degree of risk. You should carefully consider the risk factors set forth under “Risk Factors” described in our most
recent annual report on Form 20-F, filed on November 15, 2017, as supplemented and updated by subsequent current reports on Form
6-K that we have filed with the SEC, together with all other information contained or incorporated by reference in this prospectus
and any applicable prospectus supplement and in any related free writing prospectus in connection with a specific offering, before
making an investment decision. Each of the risk factors could materially and adversely affect our business, operating results,
financial condition and prospects, as well as the value of an investment in our securities, and the occurrence of any of these
risks might cause you to lose all or part of your investment.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and our SEC filings that
are incorporated by reference into this prospectus contain or incorporate by reference forward-looking statements within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act. All statements, other than statements of historical fact,
included or incorporated by reference in this prospectus regarding our business strategy, future operations, projected financial
position, potential strategic transactions, proposed distribution channels, projected sales growth, proposed new products, estimated
future revenues, cash flows and profitability, projected costs, potential sources of additional capital, future prospects, future
economic conditions, the future of our industry and results that might be obtained by pursuing management’s current plans
and objectives are forward-looking statements. The words “believe,” “anticipate,” “estimate,”
“plan,” “expect,” “intend,” “may,” “could,” “should,” “potential,”
“likely,” “projects,” “continue,” “will,” and “would” and similar expressions
are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words.
Forward-looking statements reflect our current views with respect to future events, are based on assumptions and are subject to
risks and uncertainties. We cannot guarantee that we actually will achieve the plans, intentions or expectations expressed in our
forward-looking statements and you should not place undue reliance on these statements. There are a number of important factors
that could cause our actual results to differ materially from those indicated or implied by forward-looking statements. These important
factors include those discussed under the heading “Risk Factors” contained or incorporated by reference in this prospectus
and in the applicable prospectus supplement and any free writing prospectus we may authorize for use in connection with a specific
offering. These factors and the other cautionary statements made in this prospectus should be read as being applicable to all related
forward-looking statements whenever they appear in this prospectus. Except as required by law, we undertake no obligation to update
publicly any forward-looking statements, whether as a result of new information, future events or otherwise.
USE OF PROCEEDS
Except as described
in any prospectus supplement and any free writing prospectus in connection with a specific offering, we currently intend to use
the net proceeds from the sale of the securities offered under this prospectus to fund the growth of our business, primarily working
capital, and for general corporate purposes. We may also use a portion of the net proceeds to acquire or invest in technologies,
products and/or businesses that we believe will enhance the value of our Company, although we have no current commitments or agreements
with respect to any such transactions as of the date of this prospectus. We have not determined the amount of net proceeds to be
used specifically for the foregoing purposes. As a result, our management will have broad discretion in the allocation of the net
proceeds and investors will be relying on the judgment of our management regarding the application of the proceeds of any sale
of the securities. If a material part of the net proceeds is to be used to repay indebtedness, we will set forth the interest rate
and maturity of such indebtedness in a prospectus supplement. Pending use of the net proceeds, we intend to invest the proceeds
in investment-grade, interest-bearing securities.
DILUTION
If required, we will
set forth in a prospectus supplement the following information regarding any material dilution of the equity interests of investors
purchasing securities in an offering under this prospectus:
|
|
·
|
the net tangible book value per share of our equity securities before and after the offering;
|
|
|
|
|
|
|
·
|
the amount of the increase in such net tangible book value per share attributable to the cash payments made by purchasers in the offering; and
|
|
|
|
|
|
|
·
|
the amount of the immediate dilution from the public offering price which will be absorbed by such purchasers.
|
DESCRIPTION OF ORDINARY SHARES AND PREFERRED
SHARES
The following description
of our ordinary shares and preferred shares, together with any additional information we include in any applicable prospectus supplement
or any related free writing prospectus, summarizes the material terms and provisions of our ordinary shares and the preferred shares
that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future ordinary shares
or preferred shares that we may offer, we will describe the particular terms of any class or series of these securities in more
detail in the applicable prospectus supplement. For the complete terms of our ordinary shares and preferred shares, please refer
to our Memorandum and Articles of Association, that is incorporated by reference into the registration statement of which this
prospectus is a part or may be incorporated by reference in this prospectus or any applicable prospectus supplement. The terms
of these securities may also be affected by British Virgin Islands law. The summary below and that contained in any applicable
prospectus supplement or any related free writing prospectus are qualified in their entirety by reference to our Memorandum and
Articles of Association, as in effect at the time of any offering of securities under this prospectus. For information on how to
obtain copies of our Memorandum and Articles of Association, see “Where You Can Find More Information.”
Our authorized capital stock consists of
155,000,000 shares divided into: (i) 150,000,000 ordinary shares; and (ii) 5,000,000 preferred shares, each par value $0.0001 per
share. As of July 17, 2018, 12,810,314 ordinary shares were outstanding. Each share, regardless if it is part of a class of ordinary
shares, has the right to one vote at a meeting of shareholders or on any resolution of shareholders, the right to an equal share
in any dividend paid by us, and the right to an equal share in the distribution of surplus assets. We may by a resolution of the
Board of Directors redeem our shares for such consideration as the Board of Directors determines.
If, at any time, our authorized number of
shares is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of
issue of the shares of that class) may, whether or not we are being wound-up, be varied with the consent in writing of the holders
of three-fourths of the issued shares of that class or with the sanction of a resolution passed by a majority of the votes cast
at a separate meeting of the holders of the shares of the class at which meeting the necessary quorum shall be two persons at least
holding or representing by proxy one-third of the issued shares of the class.
At least 10 days’ (exclusive of the
date that notice is given and the date on which event for which notice is given is to take effect) notice of a meeting shall be
given to each shareholder entitled to attend and vote thereat, stating the date, place, and time at which the meeting is to be
held, and if different, the record date for determining shareholders entitled to attend and vote at the meeting, and the general
nature of the business to be conducted at the meeting. A meeting shall, notwithstanding the fact that it is called on shorter notice
than otherwise required, be deemed to have been properly called if it is attended, or such notice is waived, by 90% of the shareholders
entitled to attend and vote thereat. The inadvertent failure to give notice of a meeting to, or the non-receipt of a notice of
a meeting by, any person entitled to receive notice shall not invalidate the proceedings at that meeting.
There are no limitations on the rights to
own our securities, or limitations on the rights of non-resident or foreign shareholders to hold or exercise voting rights on our
securities, contained in our Amended and Restated Memorandum and Articles of Association (or under British Virgin Islands law).
DESCRIPTION OF WARRANTS
General
We may issue warrants for the purchase of
ordinary shares or preferred shares. Warrants may be offered independently or together with ordinary shares or preferred shares
offered by any prospectus supplement and may be attached to or separate from those securities. While the terms we have summarized
below will apply generally to any warrants that we may offer under this prospectus, we will describe in particular the terms of
any series of warrants that we may offer in more detail in the applicable prospectus supplement and any applicable free writing
prospectus. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.
We will file as an exhibit
to the registration statement of which this prospectus is a part, or will incorporate by reference from another report that we
file with the SEC, the form of warrant and/or warrant agreement, which may include a form of warrant certificate, as applicable,
that describes the terms of the particular series of warrants we may offer before the issuance of the related series of warrants.
We may issue the warrants under a warrant agreement that we will enter into with a warrant agent to be selected by us. The warrant
agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency
or trust for or with any registered holders of warrants or beneficial owners of warrants. The following summary of material provisions
of the warrants and warrant agreements is subject to, and qualified in its entirety by reference to, all the provisions of the
form of warrant and/or warrant agreement and warrant certificate applicable to a particular series of warrants. We urge you to
read the applicable prospectus supplement and any related free writing prospectus, as well as the complete form of warrant and/or
the warrant agreement and warrant certificate, as applicable, that contain the terms of the warrants.
The particular terms of any issue of warrants
will be described in the prospectus supplement relating to the issue. Those terms may include:
|
|
·
|
the title of such warrants;
|
|
|
|
|
|
|
·
|
the aggregate number of such warrants;
|
|
|
·
|
the price or prices at which such warrants will be issued;
|
|
|
|
|
|
|
·
|
the currency or currencies (including composite currencies) in which the price of such warrants may be payable;
|
|
|
|
|
|
|
·
|
the terms of the securities purchasable upon exercise of such warrants and the procedures and conditions relating to the exercise of such warrants;
|
|
|
|
|
|
|
·
|
the price at which the securities purchasable upon exercise of such warrants may be purchased;
|
|
|
|
|
|
|
·
|
the date on which the right to exercise such warrants will commence and the date on which such right shall expire;
|
|
|
|
|
|
|
·
|
any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants;
|
|
|
|
|
|
|
·
|
if applicable, the minimum or maximum amount of such warrants that may be exercised at any one time;
|
|
|
|
|
|
|
·
|
if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security;
|
|
|
|
|
|
|
·
|
if applicable, the date on and after which such warrants and the related securities will be separately transferable;
|
|
|
|
|
|
|
·
|
information with respect to book-entry procedures, if any;
|
|
|
|
|
|
|
·
|
the terms of any rights to redeem or call the warrants;
|
|
|
|
|
|
|
·
|
United States federal income tax consequences of holding or exercising the warrants, if material; and
|
|
|
|
|
|
|
·
|
any other terms of such warrants, including terms, procedures and limitations relating to the exchange or exercise of such warrants.
|
Each warrant will entitle
its holder to purchase the number of ordinary shares or preferred shares of the relevant class or series at the exercise price
set forth in, or calculable as set forth in, the applicable prospectus supplement. The warrants may be exercised as set forth in
the prospectus supplement relating to the warrants offered. Unless we otherwise specify in the applicable prospectus supplement,
warrants may be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement
relating to the warrants offered thereby. After the close of business on the expiration date, unexercised warrants will become
void.
We will specify the
place or places where, and the manner in which, warrants may be exercised in the form of warrant, warrant agreement or warrant
certificate and applicable prospectus supplement. Upon receipt of payment and the warrant or warrant certificate, as applicable,
properly completed and duly executed at the corporate trust office of the warrant agent, if any, or any other office, including
ours, indicated in the prospectus supplement, we will, as soon as practicable, issue and deliver the securities purchasable upon
such exercise. If less than all of the warrants (or the warrants represented by such warrant certificate) are exercised, a new
warrant or a new warrant certificate, as applicable, will be issued 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.
Prior to the exercise
of any warrants to purchase ordinary shares or preferred shares of the relevant class or series, holders of the warrants will not
have any of the rights of holders of ordinary shares or preferred shares purchasable upon exercise, including the right to vote
or to receive any payments of dividends or payments upon our liquidation, dissolution or winding up on the ordinary shares or preferred
shares purchasable upon exercise, if any.
Outstanding Warrants
As of the date of this prospectus,
2018, there were 359,727 outstanding warrants to purchase ordinary shares.
DESCRIPTION OF UNITS
The following description,
together with the additional information we may include in any applicable prospectus supplement, summarizes the material terms
and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally
to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail
in the applicable prospectus supplement and any related free writing prospectus. The terms of any units offered under a prospectus
supplement may differ from the terms described below. However, no prospectus supplement will 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.
We will file as an exhibit
to the registration statement of which this prospectus is a part, or will incorporate by reference from another report we file
with the SEC, the form of unit agreement that describes the terms of the series of units we may offer under this prospectus, and
any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and
provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement
and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplement
and any related free writing prospectus, as well as the complete unit agreement and any supplemental agreements that contain the
terms of the units.
General
We may issue units comprised
of ordinary shares or preferred shares and warrants 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.
We will describe in the applicable prospectus
supplement the terms of the series of units, including, but not limited to:
|
|
·
|
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;
|
|
|
·
|
any provisions of the governing unit agreement that differ from those described below; and
|
|
|
·
|
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units.
|
The provisions described
in this section, as well as those described under “Description of Ordinary Shares and Preferred shares” and “Description
of Warrants” will apply to each unit and to any ordinary shares, preferred shares or warrant included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in
numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
We may enter into unit
agreements with a unit agent. Each unit agent will act solely as our agent under the applicable unit agreement and will not assume
any obligation or relationship of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent
for more than one series of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable
unit agreement or unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand
upon us. Any holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate
legal action its rights as holder under any security included in the unit.
We, the unit agents and any of their agents
may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any
purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
PLAN OF DISTRIBUTION
We may sell our securities
in any one or more of the following ways from time to time:
|
|
·
|
through agents;
|
|
|
|
|
|
|
·
|
to or through underwriters;
|
|
|
|
|
|
|
·
|
through brokers or dealers;
|
|
|
|
|
|
|
·
|
in “at the market offerings” within the meaning of Rule 415(a)(4) under the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise;
|
|
|
|
|
|
|
·
|
directly by us to purchasers, including through a specific bidding, auction or other process; or
|
|
|
|
|
|
|
·
|
through a combination of any of these methods of sale.
|
The applicable
prospectus supplement will contain the terms of the transaction, the name or names of any underwriters, dealers, agents and the
respective amounts of securities underwritten or purchased by them, the initial public offering price of the securities, and the
applicable agent’s commission, dealer’s purchase price or underwriter’s discount. Any dealers and agents participating
in the distribution of the securities may be deemed to be underwriters, and compensation received by them on resale of the securities
may be deemed to be underwriting discounts.
Any initial offering
price, dealer purchase price, discount or commission may be changed from time to time.
The securities may be
distributed from time to time in one or more transactions, at negotiated prices, at a fixed price or fixed prices (that may be
subject to change), at market prices prevailing at the time of sale, at various prices determined at the time of sale or at prices
related to prevailing market prices.
Offers to purchase securities
may be solicited directly by us or by agents designated by us from time to time. Unless otherwise indicated in the prospectus supplement,
any such agent will use its commercially reasonable efforts to solicit purchases for the period of its appointment or to sell securities
on a continuing basis. Agents may receive compensation in the form of commissions, discounts or concessions from us. Agents may
also receive compensation from the purchasers of the securities for whom they sell as principals. Each particular agent will receive
compensation in amounts negotiated in connection with the sale, which might be in excess of customary commissions. Any such agent
may be deemed to be an underwriter, as that term is defined in the Securities Act, of the securities so offered and sold. Accordingly,
any commission, discount or concession received by them and any profit on the resale of the securities purchased by them may be
deemed to be underwriting discounts or commissions under the Securities Act. We have not entered into any agreements, understandings
or arrangements with any underwriters or broker-dealers regarding the sale of their securities. As of the date of this prospectus,
there are no special selling arrangements between any broker-dealer or other person and us. No period of time has been fixed within
which the securities will be offered and sold.
If underwriters are
utilized in the sale of any securities in respect of which this prospectus is being delivered, such securities will be acquired
by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined by the underwriters at the time of sale. Securities
may be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or
more underwriters. If any underwriter or underwriters are utilized in the sale of securities, unless otherwise indicated in the
applicable prospectus supplement, the obligations of the underwriters are subject to certain conditions precedent, and the underwriters
will be obligated to purchase all such securities if they purchase any of them.
If a dealer is utilized
in the sale of the securities in respect of which this prospectus is delivered, we will sell such securities to the dealer as principal.
The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale.
Transactions through brokers or dealers may include block trades in which brokers or dealers will attempt to sell shares as agent
but may position and resell as principal to facilitate the transaction or in cross trades, in which the same broker or dealer acts
as agent on both sides of the trade. Any such dealer may be deemed to be an underwriter, as such term is defined in the Securities
Act, of the securities so offered and sold.
Offers to purchase securities
may be solicited directly by us, and the sale thereof may be made by us, directly to institutional investors or others who may
be deemed to be underwriters within the meaning of the Securities Act with respect to any resale thereof.
Agents, underwriters
and dealers may be entitled under relevant agreements with us to indemnification by us against certain liabilities, including liabilities
under the Securities Act, or to contribution with respect to payments which such agents, underwriters and dealers may be required
to make in respect thereof. The terms and conditions of any indemnification or contribution will be described in the applicable
prospectus supplement.
Underwriters, broker-dealers
or agents may receive compensation in the form of commissions, discounts or concessions from us. Underwriters, broker-dealers or
agents may also receive compensation from the purchasers of shares for whom they act as agents or to whom they sell as principals,
or both. Compensation as to a particular underwriter, broker-dealer or agent will be in amounts to be negotiated in connection
with transactions involving shares and might be in excess of customary commissions. In effecting sales, broker-dealers engaged
by us may arrange for other broker-dealers to participate in the resales.
Any securities offered
other than ordinary shares and warrants will be a new issue and, other than our ordinary shares, which are listed on The Nasdaq
Capital Market and The Over The Counter Bulletin Board, respectively, will have no established trading market. We may elect to
list any series of securities on an exchange, and in the case of our ordinary shares and warrants, on any additional exchange,
but, unless otherwise specified in the applicable prospectus supplement and/or other offering material, we shall not be obligated
to do so. It is possible that one or more underwriters may make a market in a class or series of securities, but the underwriters
will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to
the liquidity of, or the trading market for, any of the securities.
Agents, underwriters
and dealers may engage in transactions with, or perform services for, us or our subsidiaries in the ordinary course of business.
Any underwriter may
engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M
under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing
transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum.
Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover
short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally
sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the
securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any
time. An underwriter may carry out these transactions on The Nasdaq Capital Market, in the over-the-counter market or otherwise.
The place and
time of delivery for securities will be set forth in the accompanying prospectus supplement.
LEGAL MATTERS
Except
as otherwise set forth in the applicable prospectus supplement, certain legal matters in connection with the securities offered
pursuant to this prospectus will be passed upon for us by Hunter Taubman Fischer & Li to the extent governed by the laws of
the State of New York, and by Harney Westwood & Riegels LP to the extent governed by the laws of the British Virgin Islands.
If legal matters in connection with offerings made pursuant to this prospectus are passed upon by counsel to underwriters, dealers
or agents, such counsel will be named in the applicable prospectus supplement relating to any such offering.
EXPERTS
The audited financial
statements incorporated in this prospectus by reference to the Annual Report on Form 20-F for the years ended June 30, 2017 and
June 30, 2016 have been so incorporated in reliance on the reports of Centurion ZD CPA Limited, the Company’s independent
registered public accounting firm, and its authority as experts in accounting and auditing.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to
“incorporate by reference” into this prospectus the information we file with the SEC. This means that we can disclose
important information to you by referring you to those documents. Any statement contained in a document incorporated by reference
in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement
contained herein, or in any subsequently filed document, which also is incorporated by reference herein, modifies or supersedes
such earlier statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this prospectus.
We hereby incorporate
by reference into this prospectus the following documents that we have filed with the SEC under the Exchange Act:
|
|
·
|
the Company’s Annual Report on Form 20-F for the fiscal year ended June 30, 2017, filed with the SEC on November 15, 2017;
|
|
|
|
|
|
|
·
|
the Company’s Current Reports on Form 6-K, filed with the SEC on November 24, 2017, November 27, 2017, January 29, 2018, June 15, 2018, June 25, 2018 and July 12, 2018.
|
All documents that we
file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than Current Reports on Form 6-K, or
portions thereof, furnished under Form 6-K) (i) after the initial filing date of the registration statement of which this prospectus
forms a part and prior to the effectiveness of such registration statement and (ii) after the date of this prospectus and prior
to the termination of the offering shall be deemed to be incorporated by reference in this prospectus from the date of filing of
the documents, unless we specifically provide otherwise. Information that we file with the SEC will automatically update and may
replace information previously filed with the SEC. To the extent that any information contained in any Current Report on Form 6-K
or any exhibit thereto, was or is furnished to, rather than filed with the SEC, such information or exhibit is specifically not
incorporated by reference.
WHERE YOU CAN FIND MORE INFORMATION
As permitted by SEC
rules, this prospectus omits certain information and exhibits that are included in the registration statement of which this prospectus
forms a part. Since this prospectus may not contain all of the information that you may find important, you should review the full
text of these documents. If we have filed a contract, agreement or other document as an exhibit to the registration statement of
which this prospectus forms a part, you should read the exhibit for a more complete understanding of the document or matter involved.
Each statement in this prospectus, including statements incorporated by reference as discussed above, regarding a contract, agreement
or other document is qualified in its entirety by reference to the actual document.
We are subject
to the information reporting requirements of the Exchange Act, and, in accordance with these requirements, we file annual, quarterly
and current reports, proxy statements, and other information with the SEC. You may inspect, read and copy the reports and other
information we file with the SEC at the SEC’s Public Reference Room located 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. The SEC also maintains
an internet website at
www.sec.gov
that contains our filed reports, proxy and information statements, and other information
that we file electronically with the SEC.
DELTA
TECHNOLOGY HOLDINGS LIMITED
$50,000,000
Ordinary Shares
Preferred Shares
Warrants
Units
PROSPECTUS
September 6, 2018
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
Item 8.
|
Indemnification of Directors and Officers
|
Our Memorandum
and Articles of Association, the BVI Business Companies Act, 2004, as amended, and the common law of the British Virgin Islands
allow us to indemnify our officers and directors from certain liabilities. Our Articles of Association provide that China Lending
Corporation may indemnify, hold harmless and exonerate against all direct and indirect costs, fees and expenses of any type or
nature whatsoever, any person who (a) is or was a party or is threatened to be made a party to any proceeding by reason of the
fact that such person is or was a director, officer, key employee, adviser of the Company or who at the request of the Company;
or (b) is or was, at the request of the Company, serving as a director of, or in any other capacity is or was acting for, another
company.
The Company will
only indemnify the individual in question if the relevant indemnitee acted honestly and in good faith with a view to the best interests
of the Company and, in the case of criminal proceedings, the indemnitee had no reasonable cause to believe that his conduct was
unlawful. The decision of the Board as to whether an indemnitee acted honestly and in good faith and with a view to the best interests
of the Company and as to whether such indemnitee had no reasonable cause to believe that his conduct was unlawful is, in the absence
of fraud, sufficient for the purposes of our Memorandum and Articles of Association, unless a question of law is involved.
The termination of any
proceedings by any judgment, order, settlement, conviction or the entering of a nolle prosequi does not, by itself, create a presumption
that the relevant indemnitee did not act honestly and in good faith and with a view to the best interests of the Company or that
such indemnitee had reasonable cause to believe that his conduct was unlawful.
The Company may purchase
and maintain insurance, purchase or furnish similar protection or make other arrangements including, but not limited to, providing
a trust fund, letter of credit, or surety bond in relation to any indemnitee or who at the request of the Company is or was serving
as a director, officer or liquidator of, or in any other capacity is or was acting for, another company, against any liability
asserted against the person and incurred by him in that capacity, whether or not the Company has or would have had the power to
indemnify him against the liability as provided in our Memorandum and Articles of Association.
|
*
|
To
be filed by amendment or as an exhibit to a filing with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934
and incorporated by reference in connection with the offering of securities to the extent required for any such offering.
|
(a) The undersigned registrant hereby
undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in
the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement.
(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), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b).
(2) That, for the purpose
of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) 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; and
(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 the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Provided
,
however
, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) 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.
(b) That, for purposes
of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
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-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Danyang, Jiangsu, China, on September 6, 2018.
|
|
DELTA TECHNOLOGY HOLDINGS LIMITED
|
|
|
|
|
|
By:
|
/s/ Long Yi
|
|
|
|
Name:
|
Long Yi
|
|
|
|
Title:
|
Chief Executive Officer
|
|
|
|
|
(Principal Executive Officer)
|
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the capacities and on the dates indicated.
|
|
By:
|
/s/ Hongming Dong
|
|
|
|
Name:
|
Hongming Dong
|
|
|
|
Title:
|
Chief Financial Officer
(Principal Financial and Accounting Officer)
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Long Yi his or her true
and lawful attorney in fact and agent with full power of substitution, for him/her and in his/her name, place and stead, in any
and all capacities, to sign any and all amendments (including post effective amendments) to this registration statement, and to
sign any registration statement for the same offering covered by this registration statement that is to be effective on 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 all 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 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 his/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 and in the capacities
and on the dates indicated.
|
Name
|
|
Position
|
|
Date
|
|
|
|
|
|
|
|
/s/ Long Yi
|
|
Chief Executive Officer and Director
|
|
September 6, 2018
|
|
Long Yi
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Hongming Dong
|
|
Chief Financial Officer
|
|
September 6, 2018
|
|
Hongming Dong
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Jiehui Fan
|
|
Director
|
|
September 6, 2018
|
|
Jiehui Fan
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Linchai Zhang
|
|
Director
|
|
September 6, 2018
|
|
Richard Liu
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Changguang Wu
|
|
Director
|
|
September 6, 2018
|
|
Changguang Wu
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Anatoly Danilitsky
|
|
Director
|
|
September 6, 2018
|
|
Anatoly Danilitsky
|
|
|
|
|
Exhibit 5.1
|
Harney Westwood & Riegels
Craigmuir Chambers
PO Box 71, Road Town
Tortola VG1110, British Virgin Islands
Tel: +1 284 494 2233
Fax: +1 284 494 3547
|
BY EMAIL
6 SEPTEMBER 2018
greg.boyd@harneys.com/george.weston@harneys.com
+1 284 852 4317
051341.0001/GAB/GYW
Delta Technology Holdings Limited
16 Kaifa Avenue
Danyang, Jiangsu 212300
China
Dear Sirs
Delta Technology Holdings Limited
Company No 1682727 (
the Company
)
We are lawyers qualified to practise in
the British Virgin Islands and have been asked to provide this legal opinion to you with regard to the laws of the British Virgin
Islands in relation to the validity of the issuance of an indeterminate number of ordinary shares (
Ordinary Shares
),
preferred shares (
Preferred Shares
), warrants to purchase ordinary shares and/or preferred shares (
Warrants
)
and/or units (
Units
), for an aggregate offering price not to exceed $50,000,000 (the
Securities
) in
connection with a registration statement on Form F-3 to be filed by the Company with the Securities and Exchange Commission (
SEC
).
As part of the corporate actions taken
and to be taken in connection with the issuance and sale of the Securities (the
corporate proceedings
), the Company
has informed us that, and we have assumed for the purposes of the opinions given herein that, before the Securities are issued
and sold under the Registration Statement, the board of directors of the Company (the
Board
) will authorise the issuance
and approve the terms of any Securities to be issued and sold from time to time under the Registration Statement, and, in relation
to any Preferred Shares effect any necessary amendments to the Memorandum and Articles of Association of the Company (the
M&A
),
in each case in a form acceptable to us and British Virgin Islands law, and such applicable corporate proceedings (hereinafter
referred to as the
Board Authorisations
) shall be in full force and effect at the time of any such issuance and sale.
The Company has informed us that the Securities
will be sold or delivered on a delayed or continuous basis from time to time as set forth in the Registration Statement (and any
amendments and/or supplement thereto), the prospectus contained therein and any prospectus supplement. We understand that prior
to the sale of any Securities under the Registration Statement, the Company will afford us an opportunity to review the applicable
Board Authorisations and, if necessary, amendments to the M&A and operative documents pursuant to which such Securities are
to be sold and will file any applicable amendment and/or supplement to the Registration Statement (which may include as an exhibit
thereto an amended opinion) or prospectus supplement as we may reasonably consider necessary or appropriate by reason of the terms
of the sale of such Securities.
|
A list
of partners is available for inspection at our offices.
Mauritius
legal services provided through association with BLC Chambers.
|
|
Anguilla
| Bermuda | British Virgin Islands
Cayman
Islands | Cyprus | Hong Kong | London | Mauritius
Montevideo
| Shanghai | Singapore | Tokyo | Vancouver
www.harneys.com
|
In each case, except as otherwise set forth
in any applicable amendment and/or supplement to the Registration Statement or prospectus supplement: (a) any Ordinary Shares will
be issued by the Company under and in accordance with the Company’s M&A, as amended from time to time; (b) any Preferred
Shares will be issued under and in accordance with the M&A (subject to such amendments as may be necessary to reflect the terms
of such Preferred Shares), and one or more resolutions of the Board setting forth the terms of the Preferred Shares and approving
and directing the making of any necessary amendments to the M&A to reflect the same; (c) any Warrants will be issued pursuant
to one or more warrant agreements (each a
Warrant Agreement
) entered into between the Company and an entity identified
therein as the warrant agent (the
Warrant Agent
) in a form filed as an exhibit to a prospectus supplement to the
Registration Statement or incorporated by reference therein, and one or more resolutions of the Board; and (d) any Units will be
issued pursuant to one or more unit agreements (each a
Unit Agreement
) to be entered into by the Company and an entity
identified therein as the unit agent (the
Unit Agent
) in a form filed as an exhibit to a prospectus supplement to
the Registration Statement or incorporated by reference therein, and one or more resolutions of the Board.
For the purposes of giving this opinion,
we have examined the Corporate Documents (as defined in Schedule 1). We have not examined any other documents, official or corporate
records or external or internal registers and have not undertaken or been instructed to undertake any further enquiry or due diligence
in relation to the validity of the ordinary shares being issued in respect of the Plan which is the subject of this opinion.
In giving this opinion we have also relied
upon the assumptions set out in Schedule 2 which we have not verified.
Based solely upon the foregoing examinations
and assumptions and having regard to legal considerations which we deem relevant, and subject to the qualifications set out in
Schedule 3, we are of the opinion that under the laws of the British Virgin Islands:
|
|
1
|
Existence and Good Standing.
The Company is a company duly incorporated
on 28 November 2011, with registration number 1682727; that validly exists as a BVI Business Company limited by shares and is in
good standing under the laws of the British Virgin Islands. The Company is a separate legal entity and is subject to suit in its
own name.
|
|
|
2
|
Capacity and Power.
The Company may engage in any act or activity
that is not prohibited under any law for the time being in force in the British Virgin Islands.
|
|
|
3
|
Jurisdiction
. The Company is subject to the jurisdiction of the
courts of the British Virgin Islands and is not entitled to claim any immunity from suit or execution of any judgment on the grounds
of sovereignty or otherwise.
|
|
|
(a)
|
The Ordinary Shares (including any Ordinary Shares duly issued upon the exchange or conversion
of convertible Preferred Shares pursuant to the respective terms thereof, or upon the exercise of Warrants pursuant to the terms
thereof), when issued, sold and delivered by the Company in the manner and for the consideration stated in the Registration Statement
(including any amendments and/or supplement thereto) and any prospectus supplements relating thereto, and subject to the Company
obtaining the authorisation of its board of directors for such issuance, will be validly issued, fully paid and non-assessable.
|
|
|
(b)
|
When (a) the terms of any particular class or series of Preferred Shares have been established
in accordance with the M&A, and the applicable Board Authorisations and/or other corporate proceedings authorising the issuance
and sale of the relevant Preferred Shares and the making of any necessary amendments to the M&A have been passed and the relevant
amendments, if any, made; and (b) the relevant Preferred Shares have been issued, sold and delivered in the manner and for the
consideration stated in the Registration Statement (including any amendments and/or supplement thereto) and any prospectus supplements
relating thereto, and as contemplated by the applicable Board Authorisations or other corporate proceedings, the Preferred Shares
(including any Preferred Shares duly issued upon the exercise of Warrants pursuant to the terms thereof that are exercisable for
the purchase of Preferred Shares) will be validly issued, fully paid and non-assessable.
|
|
|
(c)
|
When a Warrant Agreement as contemplated by the Registration Statement (including any amendments
and/or supplement thereto) and any prospectus supplements relating thereto, and by the applicable Board Authorisations or other
corporate proceedings, has been duly authorised, executed and delivered by the Company, and assuming due authorisation, execution
and delivery by the Warrant Agent, such Warrant Agreement will constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms.
|
|
|
(d)
|
When (a) the applicable Warrants have been duly authorised by the Company; (b) the final terms
of the Warrants have been duly established and approved by the appropriate Board Authorisations; and (c) the applicable Warrants
have been duly executed by the Company and countersigned or authenticated in accordance with the applicable Warrant Agreement and
delivered to and paid for by the purchasers thereof as contemplated by the Registration Statement (including any amendments and/or
supplement thereto) and any prospectus supplements relating thereto, and as contemplated by the applicable Board Authorisations
or other corporate proceedings, such Warrants will constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms.
|
|
|
(e)
|
When a Unit Agreement as contemplated by the Registration Statement (including any amendments and/or
supplement thereto) and any prospectus supplements relating thereto, and by the applicable Board Authorisations or other corporate
proceedings, has been duly authorised, executed and delivered by the Company, and assuming due authorisation, execution and delivery
by the Unit Agent, such Unit Agreement will constitute a valid and legally binding obligation of the Company, enforceable against
the Company in accordance with its terms.
|
|
|
(f)
|
When (a) the applicable Units have been duly authorised by the Company; (b) the final terms of
the Units have been duly established and approved; and (c) the applicable Units have been duly executed by the Company and countersigned
or authenticated in accordance with the applicable Unit Agreement and delivered to and paid for by the purchasers thereof as contemplated
by the Registration Statement (including any amendments and/or supplement thereto) and any prospectus supplements relating thereto,
and as contemplated by the applicable Board Authorisations or other corporate proceedings, such Units will constitute valid and
legally binding obligations of the Company, enforceable against the Company in accordance with their terms.
|
|
|
(a)
|
No court proceedings pending against the Company are indicated by our searches of the British Virgin
Islands High Court Registry referred to at paragraph of Schedule 1.
|
|
|
(b)
|
On the basis of our searches of the British Virgin Islands Registry of Corporate Affairs and the
British Virgin Islands High Court Registry referred to at paragraphs 2 and 3 of Schedule 1, no currently valid order or resolution
for liquidation of the Company and no current notice of appointment of a receiver over the Company or any of its assets appears
on the records maintained in respect of the Company at the Registry of Corporate Affairs.
|
This opinion is confined to the matters
expressly opined on herein and given on the basis of the laws of the British Virgin Islands as they are in force and applied by
the British Virgin Islands courts at the date of this opinion. We have made no investigation of, and express no opinion on, the
laws of any other jurisdiction. We express no opinion as to matters of fact.
This
opinion is rendered for your benefit and the benefit of your legal counsel (in that capacity only) in connection with the Registration
Statement contemplated by the Corporate Documents and may be filed as an Exhibit to the Registration Statement.
We hereby consent to the filing of this
opinion with the SEC as an exhibit to the Registration Statement. In giving this consent, we do not hereby admit that we are experts
within the meaning of Section 11 of the Securities Act or that we come within the category of persons whose consent is required
under Section 7 of the Securities Act or the Rules and Regulations of the SEC promulgated thereunder.
It may not be used, circulated or otherwise
referred to any other for any other purpose as set out herein.
|
Yours faithfully
|
|
|
|
Harney Westwood & Riegels LP
|
Schedule
1
List of Documents and Records Examined
|
|
1
|
a copy of the Certificate of Incorporation and Memorandum and Articles of Association of the Company
obtained from the Registry of Corporate Affairs on 21 August 2018, which our searches dated 6 September 2018 indicated were not
subsequently amended;
|
|
|
2
|
the public records of the Company on file and available for inspection at the Registry of Corporate
Affairs, Road Town, Tortola, British Virgin Islands on 6 September 2018;
|
|
|
3
|
the records of proceedings on file with, and available for inspection on 6 September 2018 at the
High Court of Justice, British Virgin Islands; and
|
|
|
4
|
a copy of the unanimous written consent of the board of directors of the Company dated 19 June
2018 approving and authorising the registration of an indeterminate number of ordinary shares, preferred shares, warrants to purchase
ordinary shares and/or preferred shares and/or units, for an aggregate offering price not to exceed $50,000,000 to be effected
by the filing of the Registration Statement.
|
(1 – 4 above are
the
Corporate Documents
) and
|
|
5
|
a copy of the Registration Statement on Form F-3 to be filed by the Company with the United States
Securities and Exchange Commission under the United States Securities Act of 1933, as amended, and the rules and regulations of
the Commission promulgated thereunder relating to 1 the registration of an indeterminate number of ordinary shares, preferred shares,
warrants to purchase ordinary shares and/or preferred shares and/or units, for an aggregate offering price not to exceed $50,000,000
(the
Registration Statement
);
|
The Corporate Documents
and the Registration Statement are collectively referred to in this opinion as the
Documents
.
Schedule
2
Assumptions
|
|
1
|
Draft Documents.
The Company will duly execute and deliver the Documents in the form of
the drafts provided to us for review.
|
|
|
2
|
Solvency.
The Company was on the date of this opinion able to pay its debts as they fall
due, and issuing the securities as contemplated by the Registration Statement will not cause the Company to become unable to pay
its debts as they fall due.
|
|
|
3
|
Authenticity of Documents.
All original Documents are authentic, all signatures, initials
and seals are genuine, all copies of Documents are true and correct copies.
|
|
|
4
|
Corporate Documents.
All matters required by law to be recorded in the Corporate Documents
are so recorded, and that all corporate certificates, documents and records which we have reviewed are accurate and complete, and
that all facts expressed in or implied thereby are accurate and complete as at the date of this opinion.
|
|
|
5
|
No Steps to Wind-up.
The directors and shareholders of each Company have not taken any steps
to appoint a liquidator of and no receiver has been appointed over any of the Companies’ property or assets.
|
|
|
6
|
Unseen Documents.
Save for the Documents provided to us there are no resolutions, agreements,
documents or arrangements which materially affect, amend or vary the transactions envisaged in the Documents
|
Schedule
3
Qualifications
|
|
1
|
Public Records.
Records reviewed by us may not be complete for various reasons. In particular
you should note that:
|
|
|
(a)
|
in special circumstances the court may order the sealing of the court record, which would mean
that a record of the court action would not appear on the High Court register;
|
|
|
(b)
|
failure to file notice of appointment of a receiver with the Registry of Corporate Affairs does
not invalidate the receivership but merely gives rise to penalties on the part of the receiver;
|
|
|
(c)
|
a liquidator of a British Virgin Islands company has 14 days after their appointment within which
they must file notice of their appointment at the Registry of Corporate Affairs; and
|
|
|
(d)
|
although amendments to the Memorandum and Articles of Association of a company are normally effective
from the date of registration with the Registry of Corporate Affairs, it is possible for a British Virgin Islands court to order
that they be treated as being effective from an earlier date, and searches would not reveal the amendments until the court order
was subsequently filed,
|
and accordingly
our searches would not indicate such issues.
|
|
2
|
Foreign Statutes.
We express no opinion in relation to provisions making reference to foreign
statues in the Documents.
|
|
|
3
|
Good Standing.
To maintain the Company in good standing under the laws of the British Virgin
Islands, annual licence fees must be paid to the Registrar of Corporate Affairs.
|
