As filed with U.S. Securities and Exchange Commission on November 12, 2019.

Registration No. 333-               

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

 

FORM F-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

 

Oriental Culture Holding LTD

(Exact name of Registrant as specified in its charter)

 

 

 

Not Applicable

(Translation of Registrant’s name into English)

 

 

 

Cayman Islands   7389   Not Applicable
(State or other jurisdiction of   (Primary Standard Industrial   (I.R.S. Employer
incorporation or organization)   Classification Code Number)   Identification No.)

 

No. 2, Youzishan Road, Dongba Street,

Gaochun District,

Nanjing City

Jiangsu Province 210000

People’s Republic of China

Tel: (86) 25 85766891

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

 

Cogency Global Inc.

10 E 40th Street, 10th Floor

New York, NY 10016

Phone: (800) 221-0102

Fax: (800) 944-6607

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

 

Copies to:

Jeffrey Li

Ada Danelo

Foster Garvey P.C.

Flour Mill Building
1000 Potomac Street NW, Suite 200
Washington, D.C. 20007-3501

(202) 298-1735

Clayton E. Parker

Matthew Ogurick

K&L Gates LLP

Southeast Financial Center, Suite 3900

200 South Biscayne Boulevard

Miami, Florida 33131-2399

305-539-3300

 

 

 

Approximate date of commencement of proposed sale to the public: as soon as practicable after the effective date of this registration statement.

 

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.  ☒

 

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 post-effective amendment filed pursuant to Rule 462(d) 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.  ☐

 

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 Class of Securities to be Registered   Amount to Be Registered (1)     Proposed Maximum Offering Price per Share     Proposed Maximum Aggregate Offering
Price (1)
    Amount of Registration Fee (1)  
Ordinary shares, par value $0.00005 per share(2)     2,875,000     $        4     $ 11,500,000     $ 1,492.70  
Underwriters’ warrants(3)     __       __       __       __  
Ordinary shares underlying underwriters’ warrants(3)     230,000     $ 4.4     $ 1,012,000     $ 131.36  
Total     3,105,000     $       $ 12,512,000     $ 1,624.06  

 

(1) The registration fee for securities to be offered by the Registrant is based on an estimate of the Proposed Maximum Aggregate Offering Price of the securities, and such estimate is solely for the purpose of calculating the registration fee pursuant to Rule 457(o).
(2) In accordance with Rule 416(a), the Registrant is also registering an indeterminate number of additional ordinary shares that shall be issuable pursuant to Rule 416 to prevent dilution resulting from share splits, share dividends or similar transactions. Includes 375,000 ordinary shares which may be issued upon exercise of the underwriters’ over-allotment option.
(3) We have agreed to issue, on the closing date of this offering, warrants (the “underwriters’ warrants”), to the representative of the underwriters, ViewTrade Securities, Inc., to purchase an amount equal to 8% of the aggregate number of ordinary shares sold by us in this offering. The exercise price of the underwriters’ warrants is equal to 110% of the price of our ordinary shares offered hereby. The underwriters’ warrants are exercisable for a period of five years from the effective date of the registration statement of which this prospectus forms a part and will terminate on the fifth anniversary of the effective date of the registration statement.

 

The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

 

 

 

The information in this preliminary 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 preliminary prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.

 

PRELIMINARY PROSPECTUS (Subject to Completion) Dated November 12, 2019

 

2,500,000 Ordinary Shares

 

 

 

Oriental Culture Holding LTD

 

This is the initial public offering of our ordinary shares. We are offering 2,500,000 ordinary shares. We expect the initial public offering price of the shares to be $4.00 per share.  Currently, no public market exists for our ordinary shares.  We have applied to have our ordinary shares listed on the NASDAQ Capital Market (“NASDAQ”) under the symbol “DFWH”. We cannot guarantee that we will be successful in listing our ordinary shares on NASDAQ. However, we will not complete this offering unless we are so listed.

 

We are an “emerging growth company,” as that term is used in the Jumpstart Our Business Startups Act of 2012, and will be subject to reduced public company reporting requirements.

 

Investing in our ordinary shares is highly speculative and involves a significant degree of risk.  See “Risk Factors” beginning on page 10 of this prospectus for a discussion of information that should be considered before making a decision to purchase our ordinary shares.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.

 

    Per Share     Total  
Initial public offering price   $             $         
Underwriting discounts and commissions(1)   $       $    
Proceeds to us, before expenses   $       $    

 

(1) The underwriters will receive compensation in addition to such discounts and commissions as set forth under “Underwriting.”

 

We have granted the underwriters a 45-day option to purchase up to an additional 375,000 ordinary shares at the initial public offering price, less the underwriting discounts and commissions, to cover any over-allotments. We have agreed to issue, on the closing date of this offering, the underwriters’ warrants to the representative of the underwriters, ViewTrade Securities, Inc., to purchase an amount equal to 8% of the aggregate number of ordinary shares sold by us in this offering. For a description of other terms of the underwriters’ warrants and a description of the other compensation to be received by the underwriters, see “Underwriting.”

 

The underwriters expect to deliver the ordinary shares against payment as set forth under “Underwriting”, on or about ●, 2019.

 

 

VIEWTRADE SECURITIES, INC.

 

The date of this prospectus is ●, 2019.

 

 

 

 

TABLE OF CONTENTS
Page
PROSPECTUS SUMMARY 1
RISK FACTORS 10
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS 39
USE OF PROCEEDS 40
DIVIDEND POLICY 41
CAPITALIZATION 42
DILUTION 43
EXCHANGE RATE INFORMATION 44
ENFORCEABILITY OF CIVIL LIABILITIES 45
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA 46
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS 47
OUR INDUSTRY 60
BUSINESS 67
MANAGEMENT 89
PRINCIPAL SHAREHOLDERS 93
RELATED PARTY TRANSACTIONS 94
DESCRIPTION OF SHARE CAPITAL 96
SHARES ELIGIBLE FOR FUTURE SALE 101
TAXATION 103
UNDERWRITING 110
EXPENSES RELATING TO THIS OFFERING 117
LEGAL MATTERS 117
EXPERTS 117
WHERE YOU CAN FIND ADDITIONAL INFORMATION 117
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS F-1

 

You should rely only on the information contained in this prospectus and in any related free-writing prospectus. We have not authorized anyone to provide you with information different from that contained in this prospectus or any free-writing prospectus. We are offering to sell, and seeking offers to buy, the ordinary shares only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is current only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of the ordinary shares.

 

For investors outside the United States: Neither we nor the underwriters have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction, other than the United States, where action for that purpose is required. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the ordinary shares and the distribution of this prospectus outside the United States.

 

We were incorporated under the laws of the Cayman Islands as an exempted company with limited shares and a majority of our outstanding securities are owned by non-U.S. residents. Under the rules of the SEC, we currently qualify for treatment as a “foreign private issuer.” As a foreign private issuer, we will not be required to file periodic reports and financial statements with the SEC as frequently or as promptly as domestic registrants whose securities are registered under the Securities Exchange Act of 1934.

 

Until and including ●, 2019 (25 days after the date of this prospectus), all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus.  This is in addition to the dealers’ obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.

 

i

PROSPECTUS SUMMARY

 

This summary highlights certain information contained elsewhere in this prospectus. You should read the entire prospectus carefully, including our financial statements and related notes and the risks described under “Risk Factors” beginning on page 10. We note that our actual results and future events may differ significantly based upon a number of factors.  The reader should not put undue reliance on the forward-looking statements in this document, which speak only as of the date on the cover page of this prospectus.

 

All references to “we,” “us,” “our,” “Company,” “Registrant” or similar terms used in this prospectus refer to Oriental Culture Holding LTD, an exempted company with limited shares incorporated under the laws of the Cayman Islands (“Oriental Culture”), including its consolidated subsidiaries and variable interest entities (“VIEs”), unless the context otherwise indicates. We currently conduct our business through Jiangsu Yanggu Culture Development Co., Ltd. (“Jiangsu Yanggu”), China International Assets and Equity of Artworks Exchange Limited (“International Exchange”) and HKDAEx Limited (“HKDAEx”), our operating entities in China and Hong Kong.

 

“PRC” or “China” refers to the People’s Republic of China, excluding, for the purpose of this prospectus, Taiwan, Hong Kong and Macau, “RMB” or “Renminbi” refers to the legal currency of China and “$”, “USD” or “U.S. dollars” refers to the legal currency of the United States. “HK” or “Hong Kong” refers to the Hong Kong Special Administrative Region, “HK$” or “HKD” refers to the legal currency of Hong Kong.

 

Our Business

 

We are an online provider of collectibles and artwork e-commerce services, which allow collectors, artists, art dealers and owners to access a much bigger art trading market where they can engage with a wider range of collectibles or artwork investors than they could likely encounter without our platforms. We currently facilitate trading by individual customers of all kinds of collectibles, artworks and commodities on our leading online platforms owned by our subsidiaries in Hong Kong, namely the China International Assets and Equity of Artworks Exchange Limited and HKDAEx Limited. We commenced our operations in March 2018 and our customer trading volume has been growing rapidly since then. We also provide online and offline integrated marketing, storage and technical maintenance service to our customers in China. We, Oriental Culture Holding LTD, are a holding company incorporated under the laws of the Cayman Islands and the investors would be investing in the holding company, with operations conducted via our subsidiaries, variable interest entity and its subsidiaries.

 

According to the report of “E-commerce in China 2018” released by Ministry of Commerce of People’s Republic of China on May 29, 2019, China’s e-commerce continues to grow in 2018 and has ranked the first in global online retail market. Data of National Bureau of Statistics of China indicates that in 2018, the national e-commerce transaction volume reached RMB 31.63 trillion yuan (approximately $4.62 trillion), an increase of 8.5% year-on-year.

 

China’s e-commerce transaction volume 2011-2018 

 

 

China’s e-commerce transaction volume (in RMB trillion yuan)
Year-on-year growth rate

 

Source: National Bureau of Statistics of China

 

According to the statistics of the Ministry of Commerce of the People’s Republic of China, in 2017, e-commerce realized sales growth of 26.8% in China. On many mainstream e-commerce platforms, cultural products such as arts and crafts flourished and developed rapidly, and art e-commerce is gradually growing. Online trading has become a major trend of the global collectible and art trade. As a comprehensive service company with rich cultural and art collection market operations and marketing, we seize current development opportunities and provide online and offline supporting services for domestic and international art e-commerce platforms. We plan to build a complete art business e-commerce service chain to serve the industry.

 

We provide customers of our online platform with comprehensive services, including account opening, art investment education, market information, research, real-time customer support, and artwork warehousing services. Most services are delivered online through our proprietary client software and call center. Our client software provides not only market information and analysis, but also interactive functions including live discussion boards and instant messaging with customer service representatives, which we believe enhances our customers’ engagement. Internally, we collect and analyze customer behavior and communications data from our client software, customer relationship management system and the exchanges in accordance with laws and regulations, which allow us to better understand, attract and serve our customers.

 

We provide industry solutions and related software products, system development and technical support services for our cooperation e-commerce platform customers.

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We strive to minimize conflicts of interest with our customers, which we believe is essential for our long-term success. Under the trading rules of the two exchange platforms we operate on, we do not set, quote or influence the trading prices, and cannot access our customers’ money.

 

We have achieved substantial growth since our commencement of operations in March 2018. We recorded net income of approximately $2.6 million in 2018.

 

Our Strategy

 

We strive to continue building a collectible and artwork trading platform that is highly trusted by individual customers. To achieve this objective, we plan to implement the following strategies:

 

strengthen our brand and market position;
introduce new collectibles and artwork products;
explore mini-account business;
selectively explore acquisition opportunities; and
continue to attract, cultivate and retain talent

 

We face additional risks and uncertainties related to our corporate structure and the regulatory environment in China. Please see “Risk Factors” and other information included in this prospectus for a discussion of these and other risks and uncertainties that we face.

 

Corporate History and Structure

 

We were incorporated under the laws of the Cayman Islands as an offshore holding company on November 29, 2018, and we own 100% of the equity interest in Oriental Culture Development LTD (“Oriental Culture BVI”), which was incorporated on December 6, 2018 under the laws of British Virgin Islands.

 

Through Oriental Culture BVI, we own 100% of the equity interest in HK Oriental Culture Investment Development Limited (“Oriental Culture HK”), a company formed under the laws of Hong Kong on January 3, 2019. Through Oriental Culture HK, we directly own 100% of the equity interest in Nanjing Rongke Business Consulting Service Co., Ltd. (the “WFOE”), a wholly-owned PRC subsidiary of Oriental Culture HK. The WFOE entered into a series of agreements with Jiangsu Yanggu and Jiangsu Yanggu’s shareholders, through which we effectively control and derive all the economic interest and benefits from Jiangsu Yanggu.

 

On November 22, 2013, China International Assets and Equity of Artworks Exchange Limited (the “International Exchange”) was incorporated under Hong Kong law. International Exchange provides an online platform to facilitate collectibles and artwork trading e-commerce and became our subsidiary as a result of the reorganization of the common control of Oriental Culture and International Exchange.

 

Jiangsu Yanggu Culture Development Company Limited (formerly known as Nanjing Yunhehan Culture Art Company Limited) was incorporated on August 23, 2017, and it is the holding company of all PRC subsidiaries. Nanjing Yanqing Information Technology Co., Ltd., (“Nanjing Yanqing”) was incorporated on May 17, 2018 and Nanjing Yanyu Information Technology Co., Ltd. (“Nanjing Yanyu”) was incorporated on June 7, 2018 and commenced operations in July 2018. Both of these entities are wholly-owned subsidiaries of Jiangsu Yanggu. Their primary business is to provide technical and other support for International Exchange’s online collectibles and art e-commerce business, and to sell software applications and provide support services to our affiliates and third parties.

 

Kashi Longrui Business Management Services Ltd. (“Kashi Longrui”), a wholly-owned subsidiary of Nanjing Yanqing, was incorporated on July 19, 2018 and commenced operations in August 2018. Its primary business is to provide online and offline marketing service for our e-commerce platform’s members and other related services.

 

2

 

Kashi Dongfang Cangpin Culture Development Company Limited (“Kashi Dongfang”), a wholly-owned subsidiary of Nanjing Yanqing, was incorporated on August 29, 2018 and commenced operations in September 2018. Its primary focus is to provide online and offline warehouse management services for our e-commerce platform’s registered members.

 

Zhongcang Warehouse Co., Ltd. (“Zhongcang”) was incorporated on July 19, 2018 and is a joint venture by Kashi Longrui with third parties named Zhonglianxin Industry Group (Hunan) Co., Ltd., Nanjing Zhonghao Culture Media Limited, and Zhengjiang Culture Tourism International Cultural and Creative Industry Park Development Co., Ltd. to provide warehouse services to our customers. Kashi Longrui owned 18% of Zhongcang as of the date of this prospectus.

 

On April 18, 2018, HKDAEx Limited (“HKDAEx”) was incorporated under Hong Kong law. On May 9, 2019, we acquired all the outstanding equity interests of HKDAEx from its original shareholder. Effective from May 9, 2019, HKDAEx became our wholly-owned subsidiary. HKDAEx provides our customers with online platform in Hong Kong.

 

On November 8, 2019, the Board of Directors of the Company approved a 2 for 1 forward stock split, and all existing shareholders of the Company agreed to surrender an aggregate of 3,100,000 ordinary shares, or 12.5% of our then outstanding ordinary shares at no consideration to be reserved as treasury shares of the Company. The transaction is considered as a recapitalization prior to the Company’s initial public offering.

 

On November 8, 2019, the shareholders of the Company adopted the Second Amended and Restated Articles of Association to effect the 2 for 1 forward stock split of the total authorized and issued and outstanding shares of the Company. As a result of the 2 for 1 forward stock split, our total authorized shares are 1,000,000,000 shares comprising of (i) 900,000,000 ordinary shares of a nominal or par value of $0.00005 each; and (ii) 100,000,000 preferred shares of a nominal or par value of $0.00005 each, and our issued and outstanding ordinary shares increased from 12,400,000 shares to 24,800,000 shares, par value of $0.00005.

 

The following diagram illustrates our corporate structure, including our majority owned or controlled subsidiaries and consolidated affiliated entities, as of the date of this prospectus:

 

 

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The following diagram illustrates our corporate structure, including our majority owned or controlled subsidiaries and consolidated affiliated entities, as of the date of completion of the offering:

 

4

 

 

Foreign Private Issuer Status

 

We are a foreign private issuer within the meaning of the rules under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As such, we are exempt from certain provisions applicable to United States domestic public companies. For example:

 

we are not required to provide as many Exchange Act reports, or as frequently, as a domestic public company;
for interim reporting, we are permitted to comply solely with our home country requirements, which are less rigorous than the rules that apply to domestic public companies;
we are not required to provide the same level of disclosure on certain issues, such as executive compensation;
we are exempt from provisions of Regulation FD aimed at preventing issuers from making selective disclosures of material information;
we are not required to comply with the sections of the Exchange Act regulating the solicitation of proxies, consents or authorizations in respect of a security registered under the Exchange Act; and
our insiders are not required to comply with Section 16 of the Exchange Act requiring such individuals, and entities to file public reports of their share ownership and trading activities and establishing insider liability for profits realized from any “short-swing” trading transaction.

 

Variable Interest Entity Arrangements

 

In establishing our business, we have used a variable interest entity, or VIE, structure. In the PRC, investment activities by foreign investors are principally governed by the Guidance Catalog of Industries for Foreign Investment, which was promulgated and is amended from time to time by the PRC Ministry of Commerce, or MOFCOM, and the PRC National Development and Reform Commission, or NDRC. In June 2018, the Guidance Catalog of Industries for Foreign Investment was replaced by the Special Administrative Measures (Negative List) for Foreign Investment Access (2018 Version), or the Negative List. The Negative List divides industries into two categories: restricted and prohibited. Industries not listed in the Negative List are generally open to foreign investment unless specifically restricted by other PRC regulations. Our Company and the WFOE are considered as foreign investors or foreign invested enterprises under PRC law.

 

Though the business we conduct or will conduct through each variable interest entity is not within the category in which foreign investment is currently restricted under the Negative List or other PRC Laws, we expect that in the future Jiangsu Yanggu will engage in marketing survey services for online marketplaces. Marketing survey services are within the category in which foreign investment is restricted pursuant to the Negative List. In addition, we intend to centralize our management and operation in the PRC to avoid being restricted in conducting certain business activities which are important for our current or future business but are currently restricted or might be restricted in the future. As such, we believe the agreements between the WFOE and each variable interest entity are necessary and essential for our business operation. These contractual arrangements with each variable interest entity and its shareholders enable us to exercise effective control over the variable interest entities and hence consolidate their financial results as our VIE.

 

In our case, the WFOE effectively assumed management of the business activities of each our variable interest entities through a series of agreements which are referred to as the VIE Agreements. The VIE Agreements are comprised of a series of agreements, including a Technical Consultation and Service Agreement, a Business Cooperation Agreement, an Equity Pledge Agreement, an Equity Option Agreement, and a Voting Rights Proxy and Financial Supporting Agreement. Through the VIE Agreements, the WFOE has the right to advise, consult, manage and operate the variable interest entity for an annual consulting service fee in the amount of 100% of the variable interest entity’s net profit. The Shareholders of the variable interest entity have pledged all of their right, title and equity interest in the variable interest entity as security for the WFOE to collect consulting services fees provided to the variable interest entity through the Equity Pledge Agreement. In order to further reinforce the WFOE’s right to control and operate the variable interest entity, the variable interest entity’s shareholders have granted the WFOE an exclusive right and option to acquire all of their equity interests in the variable interest entity through the Equity Option Agreement.

 

5

 

 

The WFOE has entered into a series of VIE agreements with Jiangsu Yanggu and Jiangsu Yanggu’s shareholders, upon the same material terms as described above. The material terms of the VIE Agreements with Jiangsu Yanggu are as follows:

 

Technical Consultation and Service Agreement. Pursuant to the Technical Consultation and Service Agreement between the WFOE and Jiangsu Yanggu dated May 8, 2019, the WFOE has the exclusive right to provide consultation and services to Jiangsu Yanggu in the areas of funding, human resources, technology and intellectual property rights. For such services, Jiangsu Yanggu agrees to pay service fees in the amount of 100% of its net income and also has the obligation to absorb 100% of its own losses. The WFOE exclusively owns any intellectual property rights arising from the performance of this Technical Consultation and Service Agreement. The amount of service fees and the payment term can be amended by the WFOE with Jiangsu Yanggu’s consultation and implementation. The term of the Technical Consultation and Service Agreement is 20 years. The WFOE may terminate this agreement at any time by giving 30 days’ written notice to Jiangsu Yanggu.

 

Equity Pledge Agreement. Pursuant to those Equity Pledge Agreements among the WFOE, Jiangsu Yanggu and Jiangsu Yanggu’s shareholders dated May 8, 2019 (collectively, the “Pledge”), each of Jiangsu Yanggu’s shareholders pledged all of its equity interests in Jiangsu Yanggu to the WFOE to guarantee Jiangsu Yanggu’s performance of relevant obligations and indebtedness under the Technical Consultation and Service Agreement and other control agreements (collectively, the “Control Agreement”). If Jiangsu Yanggu breaches its obligations under the Control Agreement, the WFOE, as pledgee, will be entitled to certain rights, including the right to dispose of the pledged equity interests in order to recover the damages associated with such breaches. The Pledge shall be continuously valid until all of Jiangsu Yanggu’s shareholders are no longer shareholders of Jiangsu Yanggu, or until the satisfaction of all Jiangsu Yanggu’s obligations under the Control Agreement.

 

Equity Option Agreement. Pursuant to those Equity Option Agreements among the WFOE, Jiangsu Yanggu and Jiangsu Yanggu’s shareholders dated May 8, 2019, WFOE has the exclusive right to require that Jiangsu Yanggu’s shareholders fulfill and complete all approval and registration procedures required under PRC laws for the WFOE to purchase, or designate one or more persons to purchase, such shareholders’ equity interests in Jiangsu Yanggu, in one or multiple transactions, at any time or from time to time, at the WFOE’s sole and absolute discretion. The purchase price shall be the lowest price allowed by PRC laws. The Equity Option Agreements shall remain effective until all the equity interests owned by Jiangsu Yanggu’s shareholders have been legally transferred to the WFOE or its designee(s).

 

Voting Rights Proxy and Financial Supporting Agreement. Pursuant to those Voting Rights Proxy and Financial Supporting Agreements among the WFOE, Jiangsu Yanggu and Jiangsu Yanggu’s shareholders dated May 8, 2019, Jiangsu Yanggu’s shareholders irrevocably appointed the WFOE or the WFOE’s designee to exercise all of his or her rights as a shareholder of Jiangsu Yanggu under the Articles of Association of Jiangsu Yanggu, including but not limited to the power to exercise all such shareholder’s voting rights with respect to all matters to be discussed and voted in Jiangsu Yanggu shareholder meetings. The term of the Voting Rights Proxy and Financial Supporting Agreements is 20 years.

 

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Emerging Growth Company Status

 

We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act (the “JOBS Act”), and we are eligible to take advantage of certain exemptions from various reporting and financial disclosure requirements that are applicable to other public companies, that are not emerging growth companies, including, but not limited to, (1) presenting only two years of audited financial statements and only two years of related management’s discussion and analysis of financial condition and results of operations in this prospectus, (2) not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), (3) reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and (4) exemptions from the requirements of holding a non-binding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. We intend to take advantage of these exemptions. As a result, investors may find investing in our ordinary shares less attractive.

  

In addition, Section 107 of the JOBS Act also provides that an emerging growth company can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act of 1933, as amended (the “Securities Act”), for complying with new or revised accounting standards. As a result, an emerging growth company can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We intend to take advantage of such extended transition period.

 

We could remain an emerging growth company for up to five years, or until the earliest of (1) the last day of the first fiscal year in which our annual gross revenues exceed $1.07 billion, (2) the date that we become a “large accelerated filer” as defined in Rule 12b-2 under the Exchange Act, which would occur if the market value of our ordinary shares that is held by non-affiliates exceeds $700 million as of the last business day of our most recently completed second fiscal quarter and we have been publicly reporting for at least 12 months, or (3) the date on which we have issued more than $1 billion in non-convertible debt during the preceding three-year period.

 

Corporate Information

 

Our principal executive offices are located at No. 2, Youzishan Road, Dongba Street, Gaochun District, Nanjing, Jiangsu Province, People’s Republic of China. Our telephone number at this address is (86) 25 85766891. Our registered office in the Cayman Islands is located at Sertus Chambers, Governors Square, Suite # 5-204, 23 Lime Tree Bay Avenue, P.O. Box 2547, Grand Cayman, KY1-1104, Cayman Islands. Investors should contact us for any inquiries through the address and telephone number of our principal executive offices.

 

Our website is www.dfwhgroup.com. The information contained on, or that can be accessed through, our website is not a part of, and shall not be deemed incorporated into, this prospectus.

 

Recent Development

 

On November 8, 2019, we effectuated a 2-for-1 forward stock split of our authorized and issued and outstanding shares. As the result of the 2 for 1 forward stock split, our total authorized shares increased from 500,000,000 shares to 1,000,000,000 shares comprising of (i) 900,000,000 ordinary shares of a nominal or par value of $0.00005 each; and (ii) 100,000,000 preferred shares of a nominal or par value of $0.00005 each; and our issued and outstanding ordinary shares increased from 12,400,000 shares to 24,800,000 shares, par value of $0.00005.

 

Subsequent to the split, on November 8, 2019, the number of our outstanding ordinary shares decreased from to 24,800,000 to 21,700,000 pursuant to the surrender of an aggregate of 3,100,000 ordinary shares, or 12.5% of our then outstanding ordinary shares, from our existing shareholders.

 

The above transactions are considered as a recapitalization prior to the Company’s initial public offering.

 

Unless otherwise stated, all shares and per share amounts in this prospectus have been retroactively adjusted to give effect to this split and surrender.

 

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The Offering

 

Securities being offered:   2,500,000 ordinary shares on a firm commitment basis(1).
     
Initial public offering price:   The purchase price for the shares is expected to be $4.00 per ordinary share.
     
Number of ordinary shares issued and outstanding before the offering:   21,700,000 of our ordinary shares are issued and outstanding as of the date of this prospectus.
     
Number of ordinary shares issued and outstanding after the offering(2):   24,200,000 ordinary shares.
     
Gross proceeds to us, net of underwriting discounts and commissions but before expenses:   $10,000,000.
     
Use of proceeds:   We plan to use the net proceeds from this offering as follows: (i) $4 million to invest in information technology infrastructure and proprietary software; (ii) $3 million to develop new businesses, including our trading service business on our online platform under HKDAEx Limited; (iii) $0.7 million to promote our brand and service and for other general corporate purposes. For more information on the use of proceeds, see “Use of Proceeds” on page 40.
     
 Lock-up:   All of our directors and officers and certain shareholders have agreed with the underwriters, subject to certain exceptions, not to sell, transfer or dispose of, directly or indirectly, any of our ordinary shares or securities convertible into or exercisable or exchangeable for our ordinary shares for a period of 12 months after the date of this prospectus. See “Shares Eligible for Future Sale” and “Underwriting” for more information.
     
Indemnification escrow:   Net proceeds of this offering in the amount of $600,000 shall be used to fund an escrow account for a period of 24 months following the closing date of this offering, which account shall be used in the event we have to indemnify the underwriters pursuant to the terms of an underwriting agreement with the underwriters.
     
Underwriters’ warrants:  

Upon the closing of this offering, we will issue to ViewTrade Securities, Inc., as representative of the underwriters, the underwriters’ warrants entitling the representative to purchase up to 8% of the aggregate number of ordinary shares issued in this offering. The underwriters’ warrants will be exercisable for a period of five years from the effective date of the registration statement of which this prospectus forms a part.

 

Proposed NASDAQ symbol:   DFWH
     
Risk factors:   Investing in our ordinary shares involves a high degree of risk. As an investor you should be able to bear a complete loss of your investment. You should carefully consider the information set forth in the “Risk Factors” section beginning on page 10.

 

1 In addition, we may issue up to 375,000 ordinary shares pursuant to the underwriters’ over-allotment option.
2 Excludes ordinary shares underlying underwriters’ warrants and ordinary shares pursuant to the underwriters’ over-allotment option.

  

8

 

 

SUMMARY CONSOLIDATED FINANCIAL AND OPERATING DATA

 

The following summary consolidated financial statements for the six months ended June 30, 2019 and 2018 and the year ended December 31, 2018 are derived from our consolidated financial statements included elsewhere in this prospectus. Our consolidated financial statements are prepared and presented in accordance with generally accepted accounting principles in the United States, or U.S. GAAP.

 

Our historical results for any period are not necessarily indicative of results to be expected for any future period. You should read the following summary financial information in conjunction with the consolidated financial statements and related notes and the information under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this prospectus.

 

The following table presents our summary consolidated statement of operations and comprehensive income (loss) for the six months ended June 30, 2019 and 2018 and the year ended December 31, 2018.

 

    For the Six Months Ended June 30, 2019     For the Six Months Ended June 30, 2018     For the Year Ended
December 31,
2018
 
    (Unaudited)     (Unaudited)        
                   
Operating revenues   $ 7,851,515     $ -     $ 5,352,700  
                         
Cost of revenues     (593,510 )     (10,100 )     (500,375 )
                         
Gross Profit     7,258,005       (10,100 )     4,852,325  
                         
Operating expenses:                        
Selling and marketing expenses     (48,087 )     -       (1,627,488 )
General and administrative expenses     (913,140 )     (20,341 )     (557,689 )
Total operating expenses     (961,227 )     (20,341 )     (2,185,177 )
                         
Other income (expense)     18,348       (49 )     (43,010 )
                         
Income (loss) before income taxes     6,315,126       (30,490 )     2,624,138  
                         
Provision for income taxes     45,335       -       -  
                         
Net income (loss)   $ 6,269,791     $ (30,490 )   $ 2,624,138  

 

The following table presents our summary consolidated balance sheet data as of June 30, 2019 and December 31, 2018.

 

    As of
June 30,
2019
    As of December 31,
2018
 
    (Unaudited)        
Current assets   $ 9,532,699     $ 3,402,171  
Other assets     2,506,908       1,095,021  
Total assets     12,039,607       4,497,192  
Total liabilities     1,704,933       1,849,017  
Total shareholders’ equity   $ 10,334,674     $ 2,648,175  

 

9

 

 

RISK FACTORS

 

An investment in our ordinary shares involves significant risks. You should carefully consider all of the information in this prospectus, including the risks and uncertainties described below, before making an investment in our ordinary shares. Any of the following risks could have a material adverse effect on our business, financial condition and results of operations. In any such case, the market price of our ordinary shares could decline, and you may lose all or part of your investment.

 

Risks Related to Our Business

 

We have a limited operating history in an evolving market, which makes it difficult to evaluate our future prospects.

 

We launched our company in 2018 and have a limited operating history. As our business develops, or in response to competition, we may continue to introduce new services or make adjustments to our existing services, or make adjustments to our business model. In connection with the introduction of new services, or in response to general economic conditions, we may impose more stringent customer qualifications to ensure the quality of our customers, which may negatively affect the growth of our business. Any significant change to our business model may not achieve expected results and may have a material and adverse impact on our financial conditions and results of operations. It is therefore difficult to effectively assess our future prospects.

 

If we fail to educate potential clients about the value of our services, if the market for our marketplace does not develop as we expect, or if we fail to address the needs of our target market, our business and results of operations will be harmed.

 

Our historical financial results may not be indicative of our future performance.

 

Our business has achieved rapid growth since our inception. Our net revenue increased from $ nil for the period from March 2018 (when we commenced our operations) to $5.4 million for the year ended December 31, 2018 and $7.9 million for the six months ended June 30, 2019. However, our historical growth rate and the limited history of our operations make it difficult to evaluate our prospects. We may not be able to sustain our historically rapid growth or may not be able to grow our business at all.

 

The global economy and the financial markets may negatively affect our business and clients, as well as the supply of and demand for works of art. 

 

Our business is affected by global, national and local economic conditions since the services we provide are discretionary and we depend, to a significant extent, upon a number of factors relating to discretionary consumer spending in China and Hong Kong. These factors include economic conditions and perceptions of such conditions by traders of collectibles and artwork, employment rates, the level of their disposable income, business conditions, interest rates, availability of credit and levels of taxation in regional and local markets. There can be no assurance that our services will not be adversely affected by changes in general economic conditions in China, Hong Kong and globally.

 

The art market is influenced over time by the overall strength and stability of the global economy and the financial markets, although this correlation may not be immediately evident. In addition, political conditions and world events may affect our business through their effect on the economy, as well as on the willingness of potential buyers and sellers to invest and sell art in the wake of economic uncertainty.

 

Changes in international trade policies, trade dispute or the emergence of a trade war, may have an adverse effect on our business.

 

Political events, international trade disputes, and other business interruptions could harm or disrupt international commerce and the global economy, and could have a material adverse effect on the Company and its customers, logistics providers, network carriers and other channel partners.

 

International trade disputes could result in tariffs and other protectionist measures that could adversely affect the Company’s business. Tariffs could increase the cost of the goods and products which could affect people’s discretionary spending level and adversely impact our business. Also, political uncertainty surrounding international trade disputes and the potential of the escalation to trade war and global recession could have a negative effect on consumer confidence, which could adversely affect the Company’s business.

 

If we become subject to additional scrutiny, criticism and negative publicity involving U.S.-listed China-based companies, we may have to expend significant resources to investigate and resolve the matter which could harm our business operations, this offering and our reputation and could result in a loss of your investment in our ordinary shares, especially if such matter cannot be addressed and resolved favorably.

 

Recently, U.S. public companies that have substantially all of their operations in China have been the subject of intense scrutiny, criticism and negative publicity by investors, financial commentators and regulatory agencies. Much of the scrutiny, criticism and negative publicity has centered around financial and accounting irregularities, a lack of effective internal controls over financial accounting, inadequate corporate governance policies or a lack of adherence thereto and, in some cases, allegations of fraud. As a result of the scrutiny, criticism and negative publicity, the publicly traded stock of many U.S.-listed China-based companies has decreased in value and, in some cases, has become virtually worthless. Many of these companies have been subject to shareholder lawsuits and SEC enforcement actions and have conducted internal and external investigations into the allegations. It is not clear what effect this sector-wide scrutiny, criticism and negative publicity will have on us, our business and this offering. If we become the subject of any unfavorable allegations, whether such allegations are proven to be true or untrue, we will have to expend significant resources to investigate such allegations and/or defend our company. This situation may be a major distraction to our management. If such allegations are not proven to be groundless, our business operations will be severely hindered and your investment in our ordinary shares could be rendered worthless.

 

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The demand for art and collectibles are unpredictable, which may cause significant variability in our results of operations.

 

The demand for art is influenced not only by overall economic conditions, but also by changing trends in the art market as to which collecting categories and artists are most sought after and by the preferences of individual collectors. These conditions and trends are difficult to predict and may adversely impact our ability to obtain and sell consigned property, potentially causing significant variability in our results of operations from period to period.

 

A decline in trading volumes will decrease our trading revenues.

 

Trading volumes are directly affected by economic, political and market conditions, broad trends in business and finance, unforeseen market closures or other disruptions in trading, the level and volatility of interest rates, inflation, changes in price of collectibles and artwork and the overall level of investor confidence. In recent years, trading volumes across our markets have fluctuated depending on market conditions and other factors beyond our control. Because a significant percentage of our revenues are tied directly to the trading volumes on our markets, it is likely that a general decline in trading volumes would lower revenues and may adversely affect our operating results. Declines in trading volumes may also impact our market share or pricing structures and adversely affect our business and financial condition.

 

Due to the nature of our business, valuable works of art are stored at our facilities. Such works of art could be subject to damage or theft, which could have a material adverse effect on our operations, reputation and brand.

 

Valuable works of art are stored at our facilities. Although we maintain security measures at our premises, valuable collectibles and artwork may be subject to damage or theft. The damage or theft of valuable property despite these security measures could have a material adverse impact on our business and reputation.

 

System limitations or failures could harm our business.

 

Our businesses depend on the integrity and performance of the technology, computer and communications systems supporting them. If our systems cannot expand to cope with increased demand or otherwise fail to perform, we could experience unanticipated disruptions in service, slower response times and delays in the introduction of new services. These consequences could result in financial losses and decreased customer service and satisfaction. If trading volumes increase unexpectedly or other unanticipated events occur, we may need to expand and upgrade our technology, transaction processing systems and network infrastructure. We do not know whether we will be able to accurately project the rate, timing or cost of any increases, or expand and upgrade our systems and infrastructure to accommodate any increases in a timely manner.

 

The success of our business depends on our ability to market and advertise the services we provide effectively.

 

Our ability to establish effective marketing campaigns is the key to our success. Our advertisements promote our corporate image and our services. If we are unable to increase awareness of our brand, the benefits of using our trading platform to invest in collectibles and artwork, and that such investment is secure, we may not be able to attract new traders. Our marketing activities may not be successful in promoting our services or in retaining and increasing our trader base. We cannot assure you that our marketing programs will be adequate to support our future growth, which may result in a material adverse effect on our results of operations.

 

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If we do not compete effectively, our results of operations could be harmed.

 

The art e-commerce industry is highly fragmented and competitive with relatively low entry barriers. We compete primarily on the basis of our technology, comprehensive customer service and brand recognition. Our competitors may compete with us in the following ways:

 

provide services that are similar to ours, or that are more attractive to customers than ours;
provide products and services we do not offer;
offer aggressive rebates to gain market share and to promote their businesses;
adapt at a faster rate to market conditions, new technologies and customer demands;
offer better, faster and more reliable technology; and
market, promote and provide their services more effectively.

 

Although we do not compete against other trading service providers solely based on prices, if our competitors offer their services at lower prices, we may be forced to provide aggressive discounts or rebates to our customers and our commission and fees may decrease. Reduction in commissions and fees without a commensurate reduction in expenses would lower our profitability.

 

In addition, there are over 10 art e-commerce platforms operating in Hong Kong, through which individual customers can open accounts and trade all kinds of artworks on those exchanges. Recently, certain Internet companies also launched art e-commerce trading services.

 

Some of these competitors may have greater financial resources or a larger customer base than we do, and if we fail to compete effectively, our market position, business prospects and results of operations would be adversely affected.

 

The art e-commerce market is highly competitive and many traditional art galleries and auction houses may provide a platform for artwork owners to sell their collections. However their trading model is substantially different from ours. As of June 30, 2019, there were over 60 active art e-commerce platforms operating nationwide in China. The trading service providers compete with each other for customers and trading volume based on factors including brand, technology, research and customer services.

 

Although some of our competitors may have greater financial resources or larger customer bases than we do, we believe that our proprietary technology platform, our comprehensive customer services and strong brand recognition in the industry, will enable us to compete effectively in the fast evolving art e-commerce trading industry in the PRC.

 

Our competitors operate with different business models, have different cost structures or participate selectively in different market segments. They may ultimately prove more successful or more adaptable to new regulatory, technological and other developments. Many of our current and potential competitors have significantly more financial, technical, marketing and other resources than we do and may be able to devote greater resources to the development, promotion, sale and support of their service offerings. Our competitors may also have longer operating histories, a more extensive client base, greater brand recognition and brand loyalty and broader partner relationships than us. Additionally, a current or potential competitor may acquire one or more of our existing competitors or form a strategic alliance with one or more of our competitors. Our competitors may be better at developing new products, offering more attractive terms or lower fees, responding faster to new technologies and undertaking more extensive and effective marketing campaigns. In response to competition and in order to grow or maintain the volume of our business, we may have to charge lower fees, which could materially and adversely affect our business and results of operations. If we are unable to compete with such companies and meet the need for innovation in our industry, the demand for our services and products could stagnate or substantially decline, we could experience reduced revenues or our marketplace could fail to achieve or maintain more widespread market acceptance, any of which could harm our business and results of operations.

 

12

 

 

Our quarterly results may fluctuate significantly and may not fully reflect the underlying performance of our business.

 

Our quarterly results of operations, including the levels of our net revenues, expenses, net (loss)/income and other key metrics, may vary significantly in the future due to a variety of factors, some of which are outside of our control, and period-to-period comparisons of our operating results may not be meaningful, especially given our limited operating history. Accordingly, the results for any one quarter are not necessarily an indication of future performance. Fluctuations in quarterly results may adversely affect the market price of our ordinary shares. Factors that may cause fluctuations in our quarterly financial results include:

 

our ability to attract new clients and retain existing clients;
changes in our mix of services and introduction of new services;
the amount and timing of operating expenses related to the maintenance and expansion of our business, operations and infrastructure;
our decision to manage client volume growth during the period;
the impact of competitors or competitive products and services;
increases in our costs and expenses that we may incur to grow and expand our operations and to remain competitive;
network outages or security breaches;
changes in the legal or regulatory environment or proceedings, including with respect to security, privacy, or enforcement by government regulators, including fines, orders or consent decrees;
general economic, industry and market conditions, including changes in Chinese or global business or macroeconomic conditions; and
the timing of expenses related to the development or acquisition of technologies or businesses.

 

Despite our marketing efforts, we may not be able to promote and maintain our brand in an effective and cost-efficient way and our business and results of operations may be harmed accordingly.

 

We believe that effectively developing and maintaining awareness of our brand is critical to attracting new and retaining existing clients. Successful promotion of our brand and our ability to attract quality clients depends largely on the effectiveness of our marketing efforts and the success of the channels we use to promote our services.  Our efforts to build our brand have caused us to incur marketing and advertising expenses in the amount of approximately $1.6 million in 2018. It is likely that our future marketing efforts will require us to incur significant additional expenses as we expand our business. These efforts may not result in increased revenues in the immediate future or at all and, even if they do, any increases in revenues may not offset the expenses incurred. If we fail to successfully promote and maintain our brand while incurring substantial expenses, our results of operations and financial condition would be adversely affected, which may impair our ability to grow our business.

 

Fraudulent activity in our marketplace could negatively impact our operating results, brand and reputation and cause the use of our services to decrease.

 

We are subject to the risk of fraudulent activity both in our marketplace and associated with traders and third parties handling their information. Our resources, technologies and fraud detection tools may be insufficient to accurately detect and prevent fraud. Increases in fraudulent activity, either in our marketplace or associated with participants of our marketplace, could negatively impact our brand and reputation, reduce the volume of transactions facilitated through our platform and lead us to take additional steps to reduce fraud risk, which could increase our costs. High profile fraudulent activity could even lead to regulatory intervention, and may divert our management’s attention and cause us to incur additional expenses and costs. Although we have not experienced any material business or reputational harm as a result of fraudulent activities in the past, we cannot rule out the possibility that any of the foregoing may occur, causing harm to our business or reputation in the future. If any of the foregoing were to occur, our results of operations and financial conditions could be materially and adversely affected.

 

13

 

 

We may not be able to prevent others from unauthorized use of our intellectual property, which could harm our business and competitive position.

 

We regard our trademarks, domain names, know-how, proprietary technologies and similar intellectual property as critical to our success, and we rely on a combination of intellectual property laws and contractual arrangements, including confidentiality and non-compete agreements with our employees and others, to protect our proprietary rights. See “Business—Intellectual Property” and “Regulation—Regulation on Intellectual Property Rights.” We cannot assure you that any of our intellectual property rights will not be challenged, invalidated, circumvented or misappropriated, or such intellectual property will be sufficient to provide us with competitive advantages. In addition, because of the rapid pace of technological change, parts of our business rely on technologies developed or licensed by third parties, and we may not be able to obtain or continue to obtain licenses and technologies from these third parties on reasonable terms, or at all.

 

It is often difficult to register, maintain and enforce intellectual property rights in China. Statutory laws and regulations are subject to judicial interpretation and enforcement and may not be applied consistently due to the lack of clear guidance on statutory interpretation. Confidentiality, invention assignment and non-compete agreements may be breached by counterparties, and there may not be adequate remedies available to us for any such breach. Accordingly, we may not be able to effectively protect our intellectual property rights or to enforce our contractual rights in China. Preventing any unauthorized use of our intellectual property is difficult and costly and the steps we take may be inadequate to prevent the misappropriation of our intellectual property. In the event that we resort to litigation to enforce our intellectual property rights, such litigation could result in substantial costs and a diversion of our managerial and financial resources. We can provide no assurance that we will prevail in such litigation. In addition, our trade secrets may be leaked or otherwise become available to, or be independently discovered by, our competitors. To the extent that our employees or consultants use intellectual property owned by others in their work for us, disputes may arise as to the rights in related know-how and inventions. Any failure in protecting or enforcing our intellectual property rights could have a material adverse effect on our business, financial condition and results of operations.

 

Our annual effective income tax rate can change significantly as a result of a combination of changes in our foreign earnings and other factors, including changes in tax laws or changes made by regulatory authorities.

 

Our consolidated effective income tax rate is equal to our total income tax expense (benefit) as a percentage of total book income (loss) before tax. Losses in one jurisdiction may not be used to offset profits in other jurisdictions and may cause an increase in our tax rate. Changes in statutory income tax rates and laws, as well as initiation of tax audits by local and foreign authorities, could impact the amount of income tax liability and income taxes we are required to pay. In addition, any fluctuation in the earnings (or losses) of the jurisdictions and assumptions used in the calculation of income taxes could have a significant effect on our consolidated effective income tax rate. Furthermore, our effective tax rate could increase if we are unable to generate sufficient future taxable income in certain jurisdictions, or if we are otherwise required to increase our valuation allowances against our deferred tax assets. 

 

14

 

 

We are subject to taxation in multiple jurisdictions. As a result, any adverse development in the tax laws of any of these jurisdictions or any disagreement with our tax positions could have a material adverse effect on our business, consolidated financial condition or results of operations.

 

We are subject to taxation in, and to the tax laws and regulations of, multiple jurisdictions, particularly in the People’s Republic of China and Hong Kong. In addition, tax authorities in any applicable jurisdiction, may disagree with the positions we have taken or intend to take regarding the tax treatment or characterization of any of our transactions. In the event any applicable tax authorities effectively sustained their positions which are different from our tax treatment of any of our transactions, it could have a significant adverse impact on our business, consolidated results of our operations as well as consolidated financial condition.

 

We may be subject to intellectual property infringement claims, which may be expensive to defend and may disrupt our business and operations.

 

We cannot be certain that our operations or any aspects of our business do not or will not infringe upon or otherwise violate trademarks, patents, copyrights, know-how or other intellectual property rights held by third parties. We may be from time to time in the future subject to legal proceedings and claims relating to the intellectual property rights of others. In addition, there may be third-party trademarks, patents, copyrights, know-how or other intellectual property rights that are infringed by our products, services or other aspects of our business without our awareness. Holders of such intellectual property rights may seek to enforce such intellectual property rights against us in China, the United States or other jurisdictions. If any third-party infringement claims are brought against us, we may be forced to divert management’s time and other resources from our business and operations to defend against these claims, regardless of their merits.

 

Additionally, the application and interpretation of China’s intellectual property laws and the procedures and standards for granting trademarks, patents, copyrights, know-how or other intellectual property rights in China are still evolving and are uncertain, and we cannot assure you that PRC courts or regulatory authorities would agree with our analysis. If we were found to have violated the intellectual property rights of others, we may be subject to liability for our infringement activities or may be prohibited from using such intellectual property, and we may incur licensing fees or be forced to develop alternatives of our own. As a result, our business and results of operations may be materially and adversely affected.

 

From time to time we may evaluate and potentially consummate strategic investments or acquisitions, which could require significant management attention, disrupt our business and adversely affect our financial results.

 

We may evaluate and consider strategic investments, combinations, acquisitions or alliances to further increase the value of our marketplace and better serve our clients. These transactions could be material to our financial condition and results of operations if consummated. If we are able to identify an appropriate business opportunity, we may not be able to successfully consummate the transaction and, even if we do consummate such a transaction, we may be unable to obtain the benefits or avoid the difficulties and risks of such transaction.

 

Strategic investments or acquisitions will involve risks commonly encountered in business relationships, including:

 

difficulties in assimilating and integrating the operations, personnel, systems, data, technologies, products and services of the acquired business;
inability of the acquired technologies, products or businesses to achieve expected levels of revenue, profitability, productivity or other benefits;
difficulties in retaining, training, motivating and integrating key personnel;
diversion of management’s time and resources from our normal daily operations;
difficulties in successfully incorporating licensed or acquired technology and rights into our service offerings to customers;

 

15

 

 

difficulties in maintaining uniform standards, controls, procedures and policies within the combined organizations;
difficulties in retaining relationships with clients, employees and suppliers of the acquired business;
risks of entering markets in which we have limited or no prior experience;
regulatory risks, including remaining in good standing with existing regulatory bodies or receiving any necessary pre-closing or post-closing approvals, as well as being subject to new regulators with oversight over an acquired business;
assumption of contractual obligations that contain terms that are not beneficial to us, require us to license or waive intellectual property rights or increase our risk for liability;
failure to successfully further develop the acquired technology;
liability for activities of the acquired business before the acquisition, including intellectual property infringement claims, violations of laws, commercial disputes, tax liabilities and other known and unknown liabilities;
potential disruptions to our ongoing businesses; and
unexpected costs and unknown risks and liabilities associated with strategic investments or acquisitions.

 

We may not make any investments or acquisitions, or any future investments or acquisitions may not be successful, may not benefit our business strategy, may not generate sufficient revenues to offset the associated acquisition costs or may not otherwise result in the intended benefits. In addition, we cannot assure you that any future investment in or acquisition of new businesses or technology will lead to the successful development of new or enhanced products and services or that any new or enhanced products and services, if developed, will achieve market acceptance or prove to be profitable.

 

Our business depends on the continued efforts of our senior management. If one or more of our key executives were unable or unwilling to continue in their present positions, our business may be severely disrupted.

 

Our business operations depend on the continued services of our senior management, particularly the executive officers named in this prospectus. While we have the ability to provide different incentives to our management, we cannot assure you that we can continue to retain their services. If one or more of our key executives were unable or unwilling to continue in their present positions, we may not be able to replace them easily or at all, our future growth may be constrained, our business may be severely disrupted and our financial condition and results of operations may be materially and adversely affected, and we may incur additional expenses to recruit, train and retain qualified personnel. In addition, although we have entered into confidentiality and non-competition agreements with our management, there is no assurance that any member of our management team will not join our competitors or form a competing business. If any dispute arises between our current or former officers and us, we may have to incur substantial costs and expenses in order to enforce such agreements in China or we may be unable to enforce them at all.

 

We have engaged in transactions with related parties, and such transactions present possible conflicts of interest that could have an adverse effect on our business and results of operations.

 

We have entered into a number of transactions with related parties, including our shareholders, directors and executive officers. For example, we have entered into several transactions with Nanjing Culture and Artwork Property Exchange Co., Ltd. and Jinling Cultural Property Rights Exchange Co., Ltd., which are controlled or owned by Mr. Huajun Gao, a 16.13% shareholder of the Company before the offering, including providing technology services to these two companies and leasing an office space from Nanjing Culture and Artwork property Exchange Co., Ltd. For the six months ended June 30, 2019, our related party accounts receivable, accounts payable, other payables, revenues, cost of revenues and selling and marketing expenses accounted for 21.3%, 95.4%, 6.9%, 1.0%, 54% and 49.3% of our total accounts receivable, accounts payable, other payables, revenues, cost of revenues and selling and marketing expenses, respectively. See “Related Party Transactions.”  We may in the future enter into additional transactions with entities in which members of our board of directors and other related parties hold ownership interests.

 

Transactions with the entities in which related parties hold ownership interests present potential for conflicts of interest, as the interests of these entities and their shareholders may not align with the interests of the Company and our shareholders with respect to the negotiation of, and certain other matters related to, our lease and technology services to such entities. Conflicts of interest may also arise in connection with the exercise of contractual remedies under these transactions, such as the treatment of events of default.

 

Currently, our Board of Directors has authorized the Audit Committee to review and approve all the related party transaction. We rely on the laws of Cayman Islands, which provide that directors owe a duty of care and a duty of loyalty to our company. Nevertheless, we may have achieved more favorable terms if such transactions had not been entered into with related parties and these transactions, individually or in the aggregate, may have an adverse effect on our business and results of operations or may result in government enforcement actions or other litigation.

 

The relative lack of public company experience of our management team may put us at a competitive disadvantage.

 

Our management team lacks public company experience, which could impair our ability to comply with legal and regulatory requirements such as those imposed by the Sarbanes-Oxley Act of 2002, (“Sarbanes-Oxley”). Our senior management does not have much experience managing a publicly-traded company. Such responsibilities include complying with federal securities laws and making required disclosures on a timely basis. Our senior management may be unable to implement programs and policies in an effective and timely manner or that adequately respond to the increased legal, regulatory and reporting requirements associated with being a publicly traded company. Our failure to comply with all applicable requirements could lead to the imposition of fines and penalties, distract our management from attending to the management and growth of our business, result in a loss of investor confidence in our financial reports and have an adverse effect on our business and stock price.

 

16

 

 

Competition for employees is intense, and we may not be able to attract and retain the qualified and skilled employees needed to support our business.

 

We believe our success depends on the efforts and talent of our employees, including risk management, information technology, financial and marketing personnel. Our future success depends on our continued ability to attract, develop, motivate and retain qualified and skilled employees. Competition for highly skilled marketing, real estate, technical, risk management and financial personnel is extremely intense. We may not be able to hire and retain these personnel at compensation levels consistent with our existing compensation and salary structure. Some of the companies with which we compete for experienced employees have greater resources than we have and may be able to offer more attractive terms of employment.

 

In addition, we invest significant time and expense in training our employees, which increases their value to competitors who may seek to recruit them. If we fail to retain our employees, we could incur significant expense in hiring and training their replacements, and the quality of our products and services could diminish, resulting in a material adverse effect to our business.


Increases in labor costs in the PRC may adversely affect our business and results of operations.

 

The economy in China has experienced increases in inflation and labor costs in recent years. As a result, average wages in the PRC are expected to continue to increase. In addition, we are required by PRC laws and regulations to pay various statutory employee benefits, including pension, housing funds, medical insurance, work-related injury insurance, unemployment insurance and maternity insurance to designated government agencies for the benefit of our employees. The relevant government agencies may examine whether an employer has made adequate payments to the statutory employee benefits, and those employers who fail to make adequate payments may be subject to late payment fees, fines and/or other penalties. We expect that our labor costs, including wages and employee benefits, will continue to increase. Unless we are able to control our labor costs or pass on these increased labor costs to our users by increasing the fees of our services, our financial condition and results of operations may be adversely affected.

 

If we cannot maintain our corporate culture as we grow, we could lose the innovation, collaboration and focus that contribute to our business.

 

We believe that a critical component of our success is our corporate culture, which we believe fosters innovation, encourages teamwork and cultivates creativity. As we develop the infrastructure of a public company and continue to grow, we may find it difficult to maintain these valuable aspects of our corporate culture. Any failure to preserve our culture could negatively impact our future success, including our ability to attract and retain employees, encourage innovation and teamwork and effectively focus on and pursue our corporate objectives.

 

We do not have any business insurance coverage.

 

Insurance companies in China currently do not offer as extensive an array of insurance products as insurance companies in more developed economies. Currently, we do not have any business liability or disruption insurance to cover our operations. We have determined that the costs of insuring for these risks and the difficulties associated with acquiring such insurance on commercially reasonable terms make it impractical for us to have such insurance. Any uninsured business disruptions may result in our incurring substantial costs and the diversion of resources, which could have an adverse effect on our results of operations and financial condition.

 

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Risks Related to Our Corporate Structure

 

If the PRC government deems that the contractual arrangements in relation to our consolidated variable interest entities do not comply with PRC regulatory restrictions on foreign investment in the relevant industries, or if these regulations or the interpretation of existing regulations change in the future, we could be subject to severe penalties or be forced to relinquish our interests in those operations.

 

We are a Cayman Islands exempted company and our PRC subsidiary is considered a foreign invested enterprise. To comply with PRC laws and regulations, we conduct our operations in China through a series of contractual arrangements entered into among the WFOE, our VIEs and the shareholders of our VIEs. As a result of these contractual arrangements, we exert control over our VIEs and consolidate their operating results in our financial statements under U.S. GAAP. For a detailed description of these contractual arrangements, see “Corporate History and Structure.”

 

In the opinion of our PRC counsel, Allbright Law Offices, our current ownership structure, the ownership structure of our PRC subsidiary and our consolidated VIEs, and the contractual arrangements among the WFOE, our VIEs and the shareholders of our VIEs are not in violation of existing PRC laws, rules and regulations; and these contractual arrangements are valid, binding and enforceable in accordance with their terms and applicable PRC laws and regulations currently in effect. However, Allbright Law Offices has also advised us that there are substantial uncertainties regarding the interpretation and application of current or future PRC laws and regulations and there can be no assurance that the PRC government will ultimately take a view that is consistent with the opinion of our PRC counsel.

 

If the PRC government finds that our contractual arrangements do not comply with its restrictions on foreign investment in the market survey service business, the relevant PRC regulatory authorities, including the CSRC, would have broad discretion in dealing with such violations or failures, including, without limitation:

 

discontinuing or placing restrictions or onerous conditions on our operations; 

imposing fines, confiscating the income from the WFOE or our VIEs, or imposing other requirements with which we or our VIEs may not be able to comply; 

requiring us to restructure our ownership structure or operations, including terminating the contractual arrangements with our VIEs and deregistering the equity pledges of our VIEs, which in turn would affect our ability to consolidate, derive economic interests from, or exert effective control over our VIEs;  

restricting or prohibiting our use of the proceeds of this offering to finance our business and operations in China; or

taking other regulatory or enforcement actions that could be harmful to our business.

 

The imposition of any of these penalties would result in a material and adverse effect on our ability to conduct our business. In addition, it is unclear what impact the PRC government actions would have on us and on our ability to consolidate the financial results of our VIEs in our consolidated financial statements, if the PRC government authorities were to find our VIE structure and contractual arrangements to be in violation of PRC laws and regulations. If the imposition of any of these government actions causes us to lose our right to direct the activities of our VIEs or our right to receive substantially all the economic benefits and residual returns from our VIEs and we are not able to restructure our ownership structure and operations in a satisfactory manner, we would no longer be able to consolidate the financial results of our VIEs in our consolidated financial statements. Either of these results, or any other significant penalties that might be imposed on us in this event, would have a material adverse effect on our financial condition and results of operations.

 

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We rely on contractual arrangements with our VIEs and the shareholders of our VIEs for our business operations, which may not be as effective as direct ownership in providing operational control.

 

We have relied and expect to continue to rely on contractual arrangements with Jiangsu Yanggu and Jiangsu Yanggu’s shareholders to operate our business. For a description of these contractual arrangements, see “Corporate History and Structure.” These contractual arrangements may not be as effective as direct ownership in providing us with control over our consolidated variable interest entities. For example, our consolidated variable interest entities and their shareholders could breach their contractual arrangements with us by, among other things, failing to conduct their operations, including maintaining our website and using the domain names and trademarks, in an acceptable manner, or taking other actions that are detrimental to our interests.

 

If we had direct ownership of our VIEs, we would be able to exercise our rights as a shareholder to effect changes in the board of directors of our VIEs, which in turn could implement changes, subject to any applicable fiduciary obligations, at the management and operational levels. However, under the current contractual arrangements, we rely on the performance by our consolidated variable interest entities and their shareholders of their obligations under the contracts to exercise control over our consolidated variable interest entities. The shareholders of our consolidated variable interest entities may not act in the best interests of our company or may not perform their obligations under these contracts. Such risks exist throughout the period in which we intend to operate our business through the contractual arrangements with our consolidated variable interest entities. Although we have the right to replace any shareholder of our consolidated variable interest entities under the contractual arrangement, if any shareholder of our consolidated variable interest entities is uncooperative or any dispute relating to these contracts remains unresolved, we will have to enforce our rights under these contracts through the operations of PRC laws and arbitration, litigation and other legal proceedings and therefore will be subject to uncertainties in the PRC legal system. See “—Any failure by our consolidated variable interest entities or its shareholders to perform their obligations under our contractual arrangements with them would have a material adverse effect on our business.” Therefore, our contractual arrangements with our consolidated variable interest entities may not be as effective in ensuring our control over the relevant portion of our business operations as direct ownership would be.

 

Any failure by our consolidated VIEs or their shareholders to perform their obligations under our contractual arrangements with them would have a material adverse effect on our business.

 

If our consolidated VIEs or their shareholders fail to perform their respective obligations under the contractual arrangements, we may have to incur substantial costs and expend additional resources to enforce such arrangements. We may also have to rely on legal remedies under PRC laws, including seeking specific performance or injunctive relief, and claiming damages, which we cannot assure you will be effective under PRC laws. For example, if the shareholders of our VIEs were to refuse to transfer their equity interest in the VIEs to us or our designee if we exercise the purchase option pursuant to these contractual arrangements, or if they were otherwise to act in bad faith toward us, then we may have to take legal action to compel them to perform their contractual obligations.

 

All the agreements under our contractual arrangements are governed by PRC laws and provide for the resolution of disputes through arbitration in China. Accordingly, these contracts would be interpreted in accordance with PRC laws and any disputes would be resolved in accordance with PRC legal procedures. The legal system in the PRC is not as developed as in some other jurisdictions, such as the United States. As a result, uncertainties in the PRC legal system could limit our ability to enforce these contractual arrangements. Meanwhile, there are very few precedents and little formal guidance as to how contractual arrangements in the context of a consolidated variable interest entity should be interpreted or enforced under PRC laws. There remain significant uncertainties regarding the ultimate outcome of such arbitration should legal action become necessary. In addition, under PRC laws, rulings by arbitrators are final and parties cannot appeal arbitration results in court unless such rulings are revoked or determined unenforceable by a competent court. If the losing parties fail to carry out the arbitration awards within a prescribed time limit, the prevailing parties may only enforce the arbitration awards in PRC courts through arbitration award recognition proceedings, which would require additional expenses and delay. In the event that we are unable to enforce these contractual arrangements, or if we suffer significant delay or other obstacles in the process of enforcing these contractual arrangements, we may not be able to exert effective control over our consolidated variable interest entities, and our ability to conduct our business may be negatively affected. See “—Risks Related to Doing Business in China—Uncertainties in the interpretation and enforcement of Chinese laws and regulations could limit the legal protections available to you and us.”

 

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The shareholders of our consolidated VIEs may have potential conflicts of interest with us, which may materially and adversely affect our business and financial condition.

 

Forty percent of the equity interests of Jiangsu Yanggu are held by Kong Aimin and Gao Huajun. Their interests in Jiangsu Yanggu may differ from the interests of our company as a whole. These shareholders may breach, or cause our consolidated variable interest entities to breach, the existing contractual arrangements we have with them and our consolidated variable interest entities, which would have a material adverse effect on our ability to effectively control our consolidated variable interest entities and receive economic benefits from them. For example, the shareholders may be able to cause our agreements with Jiangsu Yanggu to be performed in a manner adverse to us by, among other things, failing to remit payments due under the contractual arrangements to us on a timely basis. We cannot assure you that when conflicts of interest arise, any or all of these shareholders will act in the best interests of our company or such conflicts will be resolved in our favor.

 

Currently, we do not have any arrangements to address potential conflicts of interest between these shareholders and our company, except that we could exercise our purchase option under the exclusive option agreements with these shareholders to request them to transfer all of their equity interests in Jiangsu Yanggu to a PRC entity or individual designated by us, to the extent permitted by PRC laws. If we cannot resolve any conflict of interest or dispute between us and the major shareholders of Jiangsu Yanggu, we would have to rely on legal proceedings, which could result in the disruption of our business and subject us to substantial uncertainty as to the outcome of any such legal proceedings.

 

Contractual arrangements in relation to our consolidated variable interest entities may be subject to scrutiny by the PRC tax authorities and they may determine that we or our PRC consolidated variable interest entities owe additional taxes, which could negatively affect our financial condition and the value of your investment.

 

Under applicable PRC laws and regulations, arrangements and transactions among related parties may be subject to audit or challenge by the PRC tax authorities within ten years after the taxable year when the transactions are conducted. The PRC enterprise income tax law requires every enterprise in China to submit its annual enterprise income tax return together with a report on transactions with its related parties to the relevant tax authorities. The tax authorities may impose reasonable adjustments on taxation if they have identified any related party transactions that are inconsistent with arm’s length principles. We may face material and adverse tax consequences if the PRC tax authorities determine that the contractual arrangements between the WFOE, our wholly-owned subsidiary in China, our consolidated VIEs in China, and the shareholders of our VIEs were not entered into on an arm’s length basis in such a way as to result in an impermissible reduction in taxes under applicable PRC laws, rules and regulations, and adjust our VIEs’ income in the form of a transfer pricing adjustment. A transfer pricing adjustment could, among other things, result in a reduction of expense deductions recorded by our VIEs for PRC tax purposes, which could in turn increase its tax liabilities without reducing the WFOE’s tax expenses. In addition, if the WFOE requests that the shareholders of our VIEs transfer their equity interests in the VIEs at nominal or no value pursuant to these contractual arrangements, such transfer could be viewed as a gift and subject our VIEs to PRC income tax. Furthermore, the PRC tax authorities may impose late payment fees and other penalties on our VIEs for the adjusted but unpaid taxes according to the applicable regulations. Our financial position could be materially and adversely affected if our consolidated variable interest entities’ tax liabilities increase or if they are required to pay late payment fees and other penalties.

 

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We may lose the ability to use and enjoy assets held by our consolidated VIEs that are material to the operation of our business if one or more of the entities goes bankrupt or becomes subject to a dissolution or liquidation proceeding.

 

Our consolidated VIEs hold certain assets that are material to the operation of our business, including domain names and equipment for our online trading platform. Under the contractual arrangements, our consolidated VIEs may not and their shareholders may not cause them to, in any manner, sell, transfer, mortgage or dispose of their assets or their legal or beneficial interests in the business without our prior consent. However, in the event our consolidated VIEs’ shareholders breach the these contractual arrangements and voluntarily liquidate our consolidated VIEs or our consolidated VIEs declare bankruptcy and all or part of their assets become subject to liens or rights of third-party creditors, or are otherwise disposed of without our consent, we may be unable to continue some or all of our business activities, which could materially and adversely affect our business, financial condition and results of operations. If our consolidated VIEs undergo a voluntary or involuntary liquidation proceeding, independent third-party creditors may claim rights to some or all of these assets, thereby hindering our ability to operate our business, which could materially and adversely affect our business, financial condition and results of operations.

 

Risks Related to Doing Business in China

 

Changes in China’s economic, political or social conditions or government policies could have a material adverse effect on our business and results of operations.

 

Almost all of our operations are located in China. Accordingly, our business, prospects, financial condition and results of operations may be influenced to a significant degree by political, economic and social conditions in China generally and by continued economic growth in China as a whole.

 

The Chinese economy differs from the economies of most developed countries in many respects, including the amount of government involvement, level of development, growth rate, control of foreign exchange and allocation of resources. Although the Chinese government has implemented measures emphasizing the utilization of market forces for economic reform, the reduction of state ownership of productive assets and the establishment of improved corporate governance in business enterprises, a substantial portion of productive assets in China are still owned by the government. In addition, the Chinese government continues to play a significant role in regulating industry development by imposing industrial policies. The Chinese government also exercises significant control over China’s economic growth through allocating resources, controlling payment of foreign currency-denominated obligations, setting monetary policy, and providing preferential treatment to particular industries or companies.

 

While the Chinese economy has experienced significant growth over the past decades, growth has been uneven, both geographically and among various sectors of the economy. The Chinese government has implemented various measures to encourage economic growth and guide the allocation of resources. Some of these measures may benefit the overall Chinese economy, but may have a negative effect on us. For example, our financial condition and results of operations may be adversely affected by government control over capital investments or changes in tax regulations. In addition, in the past the Chinese government has implemented certain measures, including interest rate increases, to control the pace of economic growth. These measures may cause decreased economic activity in China, and since 2012, China’s economic growth has slowed down. Any prolonged slowdown in the Chinese economy may reduce the demand for our products and services and materially and adversely affect our business and results of operations.

 

Uncertainties in the interpretation and enforcement of Chinese laws and regulations could limit the legal protections available to us.

 

The PRC legal system is based on written statutes and prior court decisions have limited value as precedents. Since these laws and regulations are relatively new and the PRC legal system continues to rapidly evolve, the interpretations of many laws, regulations and rules are not always uniform and enforcement of these laws, regulations and rules involves uncertainties.

 

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We cannot rule out the possibility that the PRC government will institute a licensing regime covering our industry at some point in the future. If such a licensing regime were introduced, we cannot assure you that we would be able to obtain any newly required licensing in a timely manner, or at all, which could materially and adversely affect our business and impede our ability to continue our operations.

 

From time to time, we may have to resort to administrative and court proceedings to enforce our legal rights. However, since PRC administrative and court authorities have significant discretion in interpreting and implementing statutory and contractual terms, it may be more difficult to evaluate the outcome of administrative and court proceedings and the level of legal protection we enjoy than in more developed legal systems. Furthermore, the PRC legal system is based in part on government policies and internal rules (some of which are not published in a timely manner or at all) that may have retroactive effect. As a result, we may not be aware of our violation of these policies and rules until sometime after the violation. Such uncertainties, including uncertainty over the scope and effect of our contractual, property (including intellectual property) and procedural rights, could materially and adversely affect our business and impede our ability to continue our operations.

 

Substantial uncertainties exist with respect to the enactment timetable, interpretation and implementation of draft PRC Foreign Investment Law and how it may impact the viability of our current corporate structure, corporate governance and business operations.

 

MOFCOM published discussion drafts of the proposed Foreign Investment Law in January 2015 and December 2018, respectively, aiming to, upon its enactment, replace the trio of existing laws regulating foreign investment in China, namely, the Sino-foreign Equity Joint Venture Enterprise Law, the Sino-foreign Cooperative Joint Venture Enterprise Law and the Wholly Foreign-invested Enterprise Law, together with their implementation rules and ancillary regulations. The draft Foreign Investment Law embodies an expected PRC regulatory trend to rationalize its foreign investment regulatory regime in line with prevailing international practice and the legislative efforts to unify the corporate legal requirements for both foreign and domestic investments. MOFCOM is currently soliciting comments on the latest draft and substantial uncertainties exist with respect to its enactment timetable, interpretation and implementation. In the second draft, there are no regulations on contractual arrangements, variable interest entities or actual control, which were explicitly provided in the first draft. However, we cannot confirm whether there will be another draft which would significantly change the regulations regarding these matters. The first draft Foreign Investment Law or a similar draft, if enacted as proposed, may materially impact the viability of our current corporate structure, corporate governance and business operations in many aspects.

 

Among other things, the draft Foreign Investment Law or a similar draft expands the definition of foreign investment and introduces the principle of “actual control” in determining whether a company is considered a foreign-invested enterprise, or an FIE. The draft Foreign Investment Law specifically provides that entities established in China but “controlled” by foreign investors will be treated as FIEs. Once an entity is considered an FIE, it may be subject to the foreign investment restrictions or prohibitions set forth in a “Negative List” to be separately issued by the State Council later. If an FIE proposes to conduct business in an industry subject to foreign investment “restrictions” in the “Negative List,” the FIE must go through a market entry clearance by MOFCOM before being established. If an FIE proposes to conduct business in an industry subject to foreign investment “prohibitions” in the “Negative List,” it must not engage in the business. However, an FIE that is subject to foreign investment “restrictions,” upon market entry clearance, may apply in writing to be treated as a PRC domestic investment if it is ultimately “controlled” by PRC government authorities and its affiliates and/or PRC citizens. In this connection, “control” is broadly defined in the draft law to cover the following summarized categories: (i) holding 50% or more of the voting rights of the subject entity; (ii) holding less than 50% of the voting rights of the subject entity but having the power to secure at least 50% of the seats on the board or other equivalent decision-making bodies, or having the voting power to exert material influence on the board, the shareholders’ meetings or other equivalent decision-making bodies; or (iii) having the power to exert decisive influence, via contractual or trust arrangements, over the subject entity’s operations, financial matters or other key aspects of business operations. Once an entity is determined to be an FIE, it will be subject to the foreign investment restrictions or prohibitions set forth in a “Negative List”, if the FIE is engaged in an industry listed in the Negative List. Unless the underlying business of the FIE falls within the Negative List, which calls for market entry clearance by MOFCOM, prior approval from the government authorities as mandated by the existing foreign investment legal regime would no longer be required for establishment of the FIE.

 

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The “variable interest entity” structure, or VIE structure, has been adopted by many PRC-based companies, including us, to obtain necessary licenses and permits in the industries that are currently subject to foreign investment restrictions in China. See “—Risks Related to Our Corporate Structure” and “Our Corporate History and Structure.” Under the draft Foreign Investment Law, variable interest entities that are controlled via contractual arrangement would also be deemed FIEs, if they are ultimately “controlled” by foreign investors. Therefore, for any companies with a VIE structure in an industry category that is included in the “Negative List”, the VIE structure may be deemed legitimate only if the ultimate controlling person(s) is/are of PRC nationality (either PRC companies or PRC citizens). Conversely, if the actual controlling person(s) is/are of foreign nationalities, then the variable interest entities will be treated as FIEs and any operation in the industry category on the “Negative List” without market entry clearance may be considered illegal.

 

The draft Foreign Investment Law or a similar draft has not taken a position on what actions will be taken with respect to companies currently employing a VIE structure, whether or not these companies are controlled by Chinese parties, while it is soliciting comments from the public on this point. If the enacted version of the Foreign Investment Law and the “Negative List” mandate further action, such as MOFCOM market entry clearance or certain restructuring of our corporate structure and operations, to be completed by companies with existing VIE structure like us, there may be substantial uncertainties as to whether we can complete these actions in a timely manner, or at all, and our business and financial condition may be materially and adversely affected.

 

Any lack of requisite approvals, licenses or permits applicable to our business may have a material and adverse impact on our business, financial condition and results of operations.

 

Our business is subject to governmental supervision and regulation by the relevant PRC governmental authorities. Together, these government authorities promulgate and enforce regulations that cover many aspects of the collectibles and artwork trading and related services exchange platform. As a result, in certain circumstances it may be difficult to determine what actions or omissions may be deemed to be in violation of applicable laws and regulations.

 

We have made efforts to obtain all the applicable licenses and permits. We cannot assure you that we have obtained all the permits or licenses required for conducting our business in China or will be able to maintain our existing licenses or obtain new ones. If the PRC government determines that we are operating without the proper approvals, licenses or permits or promulgates new laws and regulations that require additional approvals or licenses or imposes additional restrictions on the operation of any part of our business, it has the power, among other things, to levy fines, confiscate our income, revoke our business licenses, and require us to discontinue the relevant parts of our business or to impose restrictions on the affected portion of our business. Any of these actions by the PRC government may have a material adverse effect on our business and results of operations.

 

If any company incorporated in Hong Kong operating online collectibles and/or artwork trading platform is subject to PRC current or future laws and regulations regarding collectible or artwork trading business, our operation may be materially adversely effected due to the uncertainty whether we would be able to obtain approval from the provincial government and complete the filing with “Inter-Ministerial Joint Meetings of Clean-up and Corrective Actions of Various Trading Platforms” (the “Joint Meeting”) led by the China Securities Regulatory Commission (the “CSRC”).

 

According to “Decision Of The State Council On Cleaning Up And Corrective Actions on Various Trading Platforms And Taking Effective Precautions Against Financial Risks” (“Decision No.38”) promulgated by the State Council of the PRC on November 11, 2011 and effective on the same day, and “Opinions Of The General Office Of The State Council On The Implementation Of The Clean-Up And Corrective Actions Of Various Trading Platforms” (“Opinion No.37”) promulgated by the General Office of the State Council of the PRC on July 12, 2012 and effective on the same day, any trading places and their branches that violate any of the following provisions shall be cleaned up and rectified. Such parties must not:

 

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(1) Divide any equity into equal shares for public offering. An “equal share public offering” is when a trading place uses its services and facilities to divide its equity into equal shares and sell them to investors. The relevant provisions of the company law and the securities law shall apply to the public issuance of shares by a joint stock company.

 

(2) Adopt centralized trading. The “centralized trading methods” referred to in this opinion include collective bidding, continuous bidding, electronic matching, anonymous trading, market makers and other trading methods, except for agreement transfers and legal auctions.

 

(3) Continuously list and trade the rights and interests in accordance with standardized trading units. The “standardized trading unit” referred to in this opinion refers to the minimum trading unit set for other equities other than equity, and trading at the minimum trading unit or integer multiples thereof. “Continuous listing transaction” refers to listing and selling the same trading variety within 5 trading days after buying or listing, and buying the same trading variety within 5 trading days after selling.

 

(4) Have a cumulative number of equity holders exceeding 200. Except as otherwise provided for by laws and administrative regulations, the cumulative number of actual holders of any equity shall not exceed 200 during the term of the company’s existence, no matter in the course of issuance or transfer.

 

(5) Carry out standardized contract trading by centralized trading. The “standardized contract” referred to in this opinion includes two situations: one is a unified contract established by the trading place with fixed terms other than price, which stipulates the delivery of a certain amount of the subject matter at a certain time and place in the future. The other is a contract made by the exchange that gives the buyer the right to buy or sell the agreed subject matter at a specified price at a certain time in the future.

 

(6) Without the approval of the relevant financial administrative department of the state council, establish either trading places for the trading of financial products such as insurance, credit and gold, or use any existing other trading places for the trading of financial products such as insurance, credit and gold.

 

Additionally, according to “Notice Concerning The Issuance Of Minutes Of The Special Session On The Clean-Up And Rectification Of Stamp And Commemorative Coins Trading Places” promulgated by the Office of the Joint Meeting on August 2, 2017, any stamp and commemorative coins using a stock issuance-like model to trading places mainly trading stamps by a concentrated bidding and “T+0” transaction method should cease to operate, unless they obtain approval from the provincial government and complete the required filing with the Joint Meeting.

 

We are an international online trading platform that provides state-of-the-art, convenient services for various types of collectibles and artwork, incorporated in Hong Kong. We provide an on-line platform for our clients to trading coins, stamps, ancient coins, and other collectibles and artwork. According to Rules for Trading Cultural And Art Collections for us (interim) (the “Trading Rules”), we do not provide an “equal share public offering”, which means we divide a trading subject into several shares, but only allow a physical subject to be traded as a whole. After trading, the original owner and the successful bidder can pick up the goods from the relevant storage company.

 

Currently, we use a “T+0” bidding method and allow our clients to centralize trading in our platform, which was not against Hong Kong current related laws and regulations regarding artwork trading. And, as a Hong Kong online collectible and artwork trading platform, we believe those laws and regulations regulating collectible and artwork trading in mainland China, such as Decision No.38 and Opinion No.37, do not apply to our trading platform. However, there may be substantial uncertainties regarding the interpretation and application of future PRC laws and regulations applicable to our business and that the PRC government or any other governmental authorities may in future impose license requirements or take further actions having material adverse effects on our business or finance.

 

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We rely on dividends and other distributions on equity paid by our PRC subsidiary to fund any cash and financing requirements we may have, and any limitation on the ability of our PRC subsidiary to make payments to us could have a material adverse effect on our ability to conduct our business.

 

We are a holding company, and we rely on dividends and other distributions on equity paid by our PRC subsidiary for our cash and financing requirements, including the funds necessary to pay dividends and other cash distributions to our shareholders and service any debt we may incur. If our PRC subsidiary incurs debt on its own behalf in the future, the instruments governing the debt may restrict its ability to pay dividends or make other distributions to us. In addition, the PRC tax authorities may require Jiangsu Yanggu to adjust its taxable income under the contractual arrangements it currently has in place with our consolidated variable interest entities in a manner that would materially and adversely affect its ability to pay dividends and other distributions to us. See “—Risks Related to Our Corporate Structure—Contractual arrangements in relation to our consolidated variable interest entities may be subject to scrutiny by the PRC tax authorities and they may determine that we or our PRC consolidated variable interest entity owe additional taxes, which could negatively affect our financial condition and the value of your investment.”

 

Under PRC laws and regulations, our PRC subsidiary, as a wholly foreign-owned enterprise in China, may pay dividends only out of its respective accumulated after-tax profits as determined in accordance with PRC accounting standards and regulations. In addition, a wholly foreign-owned enterprise is required to set aside at least 10% of its accumulated after-tax profits each year, if any, to fund certain statutory reserve funds, until the aggregate amount of such funds reaches 50% of its registered capital. At its discretion, a wholly foreign-owned enterprise may allocate a portion of its after-tax profits based on PRC accounting standards to staff welfare and bonus funds. These reserve funds and staff welfare and bonus funds are not distributable as cash dividends.

 

Any limitation on the ability of our PRC subsidiary to pay dividends or make other distributions to us could materially and adversely limit our ability to grow, make investments or acquisitions that could be beneficial to our business, pay dividends, or otherwise fund and conduct our business. See also “—If we are classified as a PRC resident enterprise for PRC income tax purposes, such classification could result in unfavorable tax consequences to us and our non-PRC shareholders.”

 

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PRC regulation of loans to and direct investment in PRC entities by offshore holding companies and governmental control of currency conversion may delay or prevent us from using the proceeds of this offering to make loans to or make additional capital contributions to our PRC subsidiary, which could materially and adversely affect our liquidity and our ability to fund and expand our business.

 

Under PRC laws and regulations, we are permitted to utilize the proceeds from this offering to fund our PRC subsidiary by making loans to or additional capital contributions to our PRC subsidiary, subject to applicable government registration and approval requirements.

 

Any loans to our PRC subsidiary, which are treated as foreign-invested enterprises under PRC laws, are subject to PRC regulations and foreign exchange loan registrations. For example, loans by us to our PRC subsidiary to finance its activities cannot exceed statutory limits and must be registered with the local counterpart of the State Administration of Foreign Exchange, or SAFE. The statutory limit for the total amount of foreign debts of a foreign-invested company is the difference between the amount of total investment as approved by MOFCOM or its local counterpart and the amount of registered capital of such foreign-invested company.

 

We may also decide to finance our PRC subsidiary by means of capital contributions. These capital contributions must be approved by MOFCOM or its local counterpart. In addition, SAFE issued a circular in September 2008, SAFE Circular 142, regulating the conversion by a foreign-invested enterprise of foreign currency registered capital into RMB by restricting how the converted RMB may be used. SAFE Circular 142 provides that the RMB capital converted from foreign currency registered capital of a foreign-invested enterprise may only be used for purposes within the business scope approved by the applicable government authority and unless otherwise provided by law, may not be used for equity investments within the PRC. Although on July 4, 2014, the SAFE issued the Circular of the SAFE on Relevant Issues Concerning the Pilot Reform in Certain Areas of the Administrative Method of the Conversion of Foreign Exchange Funds by Foreign-invested Enterprises, or SAFE Circular 36, which launched a pilot reform of the administration of the settlement of the foreign exchange capitals of foreign-invested enterprises in certain designated areas from August 4, 2014 and some of the restrictions under SAFE Circular 142 will not apply to the settlement of the foreign exchange capitals of the foreign-invested enterprises established within the designate areas and such enterprises mainly engaging in investment are allowed to use its RMB capital converted from foreign exchange capitals to make equity investment, our PRC subsidiary is not established within the designated areas. On March 30, 2015, SAFE promulgated Circular 19, to expand the reform nationwide. Circular 19 came into force and replaced both Circular 142 and Circular 36 on June 1, 2015. Circular 19 allows foreign-invested enterprises to make equity investments by using RMB fund converted from foreign exchange capital. However, Circular 19 continues to prohibit foreign-invested enterprises from, among other things, using RMB fund converted from its foreign exchange capitals for expenditure beyond its business scope, providing entrusted loans or repaying loans between non-financial enterprises. In addition, SAFE strengthened its oversight of the flow and use of the RMB capital converted from foreign currency registered capital of a foreign-invested company. The use of such RMB capital may not be altered without SAFE’s approval, and such RMB capital may not in any case be used to repay RMB loans if the proceeds of such loans have not been used. Violations of these Circulars could result in severe monetary or other penalties. These circulars may significantly limit our ability to use RMB converted from the net proceeds of this offering to fund the establishment of new entities in China by our PRC subsidiary, to invest in or acquire any other PRC companies through our PRC subsidiary, or to establish new variable interest entities in the PRC.

 

In light of the various requirements imposed by PRC regulations on loans to and direct investment in PRC entities by offshore holding companies, we cannot assure you that we will be able to complete the necessary government registrations or obtain the necessary government approvals on a timely basis, if at all, with respect to future loans to our PRC subsidiary or future capital contributions by us to our PRC subsidiary. If we fail to complete such registrations or obtain such approvals, our ability to use the proceeds we expect to receive from this offering to capitalize or otherwise fund our PRC operations may be negatively affected, which could materially and adversely affect our liquidity and our ability to fund and expand our business.

 

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Fluctuations in exchange rates could have a material adverse effect on our results of operations and the value of your investment.

 

Our reporting currency is the U.S. dollar while the functional currency for our PRC subsidiary and consolidated variable interest entity is RMB. As a result, fluctuations in the exchange rate between the U.S. dollar and RMB will affect the relative purchasing power in RMB terms of our U.S. dollar assets and the proceeds from this offering. Gains and losses from the remeasurement of assets and liabilities that are receivable or payable in RMB are included in our consolidated statements of operations. The remeasurement has caused the U.S. dollar value of our results of operations to vary with exchange rate fluctuations, and the U.S. dollar value of our results of operations will continue to vary with exchange rate fluctuations. A fluctuation in the value of RMB relative to the U.S. dollar could reduce our profits from operations and the translated value of our net assets when reported in U.S. dollars in our financial statements. This could have a negative impact on our business, financial condition or results of operations as reported in U.S. dollars. If we decide to convert our RMB into U.S. dollars for the purpose of making payments for dividends on our ordinary shares or for other business purposes, appreciation of the U.S. dollar against the RMB would have a negative effect on the U.S. dollar amount available to us. In addition, fluctuations in currencies relative to the periods in which the earnings are generated may make it more difficult to perform period-to-period comparisons of our reported results of operations.

 

There remains significant international pressure on the PRC government to adopt a flexible currency policy. Any significant appreciation or depreciation of the RMB may materially and adversely affect our revenues, earnings and financial position, and the value of, and any dividends payable on, our ordinary shares in U.S. dollars. For example, to the extent that we need to convert U.S. dollars we receive from this initial public offering into RMB to pay our operating expenses, appreciation of the RMB against the U.S. dollar would have an adverse effect on the RMB amount we would receive from the conversion. Conversely, a significant depreciation of the RMB against the U.S. dollar may significantly reduce the U.S. dollar equivalent of our earnings, which in turn could adversely affect the market price of our ordinary shares.

 

Very limited hedging options are available in China to reduce our exposure to exchange rate fluctuations. To date, we have not entered into any hedging transactions in an effort to reduce our exposure to foreign currency exchange risk. While we may decide to enter into hedging transactions in the future, the availability and effectiveness of these hedges may be limited and we may not be able to adequately hedge our exposure or at all. In addition, our currency exchange losses may be magnified by PRC exchange control regulations that restrict our ability to convert RMB into foreign currency. As a result, fluctuations in exchange rates may have a material adverse effect on your investment.

 

Governmental control of currency conversion may limit our ability to utilize our net revenues effectively and affect the value of your investment.

 

The PRC government imposes controls on the convertibility of the RMB into foreign currencies and, in certain cases, the remittance of currency out of China. We receive substantially all of our net revenues in RMB. Under our current corporate structure, our company in the Cayman Islands relies on dividend payments from our PRC subsidiary to fund any cash and financing requirements we may have. Under existing PRC foreign exchange regulations, payments of current account items, such as profit distributions and trade and service-related foreign exchange transactions, can be made in foreign currencies without prior approval from SAFE by complying with certain procedural requirements. Therefore, our PRC subsidiary is able to pay dividends in foreign currencies to us without prior approval from SAFE, subject to the condition that the remittance of such dividends outside of the PRC complies with certain procedures under PRC foreign exchange regulation, such as the overseas investment registrations by the beneficial owners of our company who are PRC residents. But approval from or registration with appropriate government authorities is required where RMB is to be converted into foreign currency and remitted out of China to pay capital expenses such as the repayment of loans denominated in foreign currencies. The PRC government may also at its discretion restrict access in the future to foreign currencies for current account transactions. If the foreign exchange control system prevents us from obtaining sufficient foreign currencies to satisfy our foreign currency demands, we may not be able to pay dividends in foreign currencies to our shareholders.

 

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Failure to make adequate contributions to various employee benefit plans as required by PRC regulations may subject us to penalties.

 

We are required under PRC laws and regulations to participate in various government sponsored employee benefit plans, including certain social insurance, housing funds and other welfare-oriented payment obligations, and contribute to the plans in amounts equal to certain percentages of salaries, including bonuses and allowances, of our employees up to a maximum amount specified by the local government from time to time at locations where we operate our businesses. The requirement of employee benefit plans has not been implemented consistently by the local governments in China given the different levels of economic development in different locations. As of the date of this prospectus, we believe that we have made adequate employee benefit payments. If we fail to make adequate payments in the future, we may be required to make up the contributions for these plans in the amount of 110% of the amount in the preceding month. If we fail to make or supplement contributions of social security premiums within the stipulated period, the social security premiums collection agency may enquire into the deposit accounts of the employer with banks and other financial institutions. In an extreme situation, where we failed to contribute social security premiums in full amount and do not provide guarantee, the social security premiums collection agency may apply to a Chinese court for seizure, foreclosure or auction of our properties of value equivalent to the amount of social security premiums payable, and the proceeds from auction shall be used for contribution of social security premiums.  If we are subject to deposit, seizure, foreclosure or auction in relation to the underpaid employee benefits, our financial condition and results of operations may be adversely affected.

 

Our business is susceptible to fluctuations in the art market of China.

 

We conduct our business primarily in China. Our business depends substantially on the conditions of the PRC art market. Demand for collectibles and artwork in China has grown rapidly in the recent decade but such growth is often coupled with volatility in market conditions and fluctuation in prices. Fluctuations of supply and demand in China’s art market are caused by economic, social, political and other factors. Over the years, governments at both national and local levels have announced and implemented various policies and measures aimed to regulate the art markets. These measures have affected and may continue to affect the conditions of China’s art market and cause fluctuations in collectibles and artwork prices. To the extent fluctuations in the art market may adversely affect the trading volume on our platform, or require us to provide our services on unfavorable terms, our financial condition and results of operations may be materially and adversely affected.

 

The legal rights we hold to use certain leased properties could be challenged by property owners or other third parties, which could prevent us from operating our business or increase the costs associated with our business operations.

 

For all of our business facilities and warehouses, we do not hold property ownership with respect to the premises under which those facilities are operated. Instead, we rely on leases with the property owners. Our general practice requires us to examine the title certificates of the property owners as part of our due diligence before entering into a lease with them. If we fail to identify encumbrances on the titles, our leases of such properties may be challenged or even invalidated by government authority or relevant dispute resolution institution. As a result, the development or operations of our facilities on such properties could be adversely affected.

 

In addition, we are subject to the risks of other potential disputes with property owners and to the forced closure of our facilities. Such disputes and forced closures, whether resolved in the favor of us, may divert our management attention, harm our reputation, or otherwise disrupt and adversely affect our business.

 

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The approval of the China Securities Regulatory Commission may be required in connection with this offering under a regulation adopted in August 2006, as amended, and, if required, we cannot predict whether we will be able to obtain such approval.

 

The Regulations on Mergers and Acquisitions of Domestic Companies by Foreign Investors, or the M&A Rules, adopted by six PRC regulatory agencies in August 2006 and amended in 2009, requires an overseas special purpose vehicle formed for listing purposes through acquisitions of PRC domestic companies and controlled by PRC companies or individuals to obtain the approval of the China Securities Regulatory Commission, or the CSRC, prior to the listing and trading of such special purpose vehicle’s securities on an overseas stock exchange. In September 2006, the CSRC published a notice on its official website specifying documents and materials required to be submitted to it by a special purpose vehicle seeking CSRC approval of its overseas listings. The application of the M&A Rules remains unclear.

 

Our PRC counsel, Allbright Law Offices, has advised us based on their understanding of the current PRC laws, rules and regulations that the CSRC’s approval is not required for the listing and trading of our ordinary shares on NASDAQ in the context of this offering, given that:

 

we established our PRC subsidiary, the WFOE, by means of direct investment rather than by merger with or acquisition of PRC domestic companies; and
no explicit provision in the M&A Rules classifies the respective contractual arrangements between the WFOE, Jiangsu Yanggu and its shareholders as a type of acquisition transaction falling under the M&A Rules.

 

However, there remains some uncertainty as to how the M&A Rules will be interpreted or implemented in the context of an overseas offering and the CSRC’s opinions summarized above are subject to any new laws, rules and regulations or detailed implementations and interpretations in any form relating to the M&A Rules. We cannot assure you that relevant PRC government agencies, including the CSRC, would reach the same conclusion as we do. If the CSRC or any other PRC regulatory agencies subsequently determines that we need to obtain the CSRC’s approval for this offering or if the CSRC or any other PRC government agencies promulgates any interpretation or implements rules before our listing that would require us to obtain CSRC or other governmental approvals for this offering, we may face adverse actions or sanctions by the CSRC or other PRC regulatory agencies. Sanctions may include fines and penalties on our operations in the PRC, limitations on our operating privileges in the PRC, delays in or restrictions on the repatriation of the proceeds from this offering into the PRC, restrictions on or prohibition of the payments or remittance of dividends by our PRC subsidiary, or other actions that could have a material adverse effect on our business, financial condition, results of operations, reputation and prospects, as well as the trading price of our ordinary shares. The CSRC or other PRC regulatory agencies may also take actions requiring us, or making it advisable for us, to halt this offering before the settlement and delivery of ordinary shares that we are offering. Consequently, if you engage in market trading or other activities in anticipation of and prior to the settlement and delivery of ordinary shares we are offering, you would be doing so at the risk that the settlement and delivery may not occur. In addition, if the CSRC or other PRC regulatory agencies later promulgate new rules or explanations requiring that we obtain their approvals for this offering, we may be unable to obtain a waiver of such approval requirements, if and when procedures are established to obtain such a waiver. Any uncertainties and/or negative publicity regarding such approval requirement could have a material adverse effect on the trading price of ordinary shares.

 

The M&A Rules and certain other PRC regulations establish complex procedures for some acquisitions of Chinese companies by foreign investors, which could make it more difficult for us to pursue growth through acquisitions in China.

 

The M&A Rules discussed in the preceding risk factor and some other regulations and rules concerning mergers and acquisitions established additional procedures and requirements that could make merger and acquisition activities by foreign investors more time consuming and complex, including requirements in some instances that MOFCOM be notified in advance of any change-of-control transaction in which a foreign investor takes control of a PRC domestic enterprise. Moreover, the Anti-Monopoly Law requires that MOFCOM be notified in advance of any concentration of undertaking if certain thresholds are triggered. In addition, the security review rules issued by MOFCOM that became effective in September 2011 specify that mergers and acquisitions by foreign investors that raise “national defense and security” concerns and mergers and acquisitions through which foreign investors may acquire de facto control over domestic enterprises that raise “national security” concerns are subject to strict review by MOFCOM, and the rules prohibit any activities attempting to bypass a security review, including by structuring the transaction through a proxy or contractual control arrangement. In the future, we may grow our business by acquiring complementary businesses. Complying with the requirements of the above-mentioned regulations and other relevant rules to complete such transactions could be time consuming, and any required approval processes, including obtaining approval from MOFCOM or its local counterparts may delay or inhibit our ability to complete such transactions, which could affect our ability to expand our business or maintain our market share.

 

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PRC regulations relating to offshore investment activities by PRC residents may limit our PRC subsidiary’s ability to increase its registered capital or distribute profits to us or otherwise expose us or our PRC resident beneficial owners to liability and penalties under PRC law.

 

SAFE promulgated the Circular on Relevant Issues Relating to Domestic Resident’s Investment and Financing and Roundtrip Investment through Special Purpose Vehicles, or SAFE Circular 37, in July 2014 that requires PRC residents or entities to register with SAFE or its local branch in connection with their establishment or control of an offshore entity established for the purpose of overseas investment or financing. In addition, such PRC residents or entities must update their SAFE registrations when the offshore special purpose vehicle undergoes material events relating to any change of basic information (including change of such PRC citizens or residents, name and operation term), increases or decreases in investment amount, transfers or exchanges of shares, or mergers or divisions. SAFE Circular 37 was issued to replace the Notice on Relevant Issues Concerning Foreign Exchange Administration for PRC Residents Engaging in Financing and Roundtrip Investments via Overseas Special Purpose Vehicles, or SAFE Circular 75. SAFE promulgated the Notice on Further Simplifying and Improving the Administration of the Foreign Exchange Concerning Direct Investment in February 2015, which took effect on June 1, 2015. This notice has amended SAFE Circular 37 requiring PRC residents or entities to register with qualified banks rather than SAFE or its local branch in connection with their establishment or control of an offshore entity established for the purpose of overseas investment or financing.

 

If our shareholders who are PRC residents or entities do not complete their registration as required, our PRC subsidiary may be prohibited from distributing its profits and proceeds from any reduction in capital, share transfer or liquidation to us, and we may be restricted in our ability to contribute additional capital to our PRC subsidiary. Moreover, failure to comply with the SAFE registration described above could result in liability under PRC laws for evasion of applicable foreign exchange restrictions.

 

Those who directly or indirectly hold shares in our company and are known to us as being PRC residents have completed the foreign exchange registrations required in connection with our recent corporate restructuring.

 

However, we may not be informed of the identities of all the PRC residents or entities holding direct or indirect interest in our company, nor can we compel our beneficial owners to comply with SAFE registration requirements. As a result, we cannot assure you that all of our shareholders or beneficial owners who are PRC residents or entities have complied with, and will in the future make or obtain any applicable registrations or approvals required by, SAFE regulations. Failure by such shareholders or beneficial owners to comply with SAFE regulations, or failure by us to amend the foreign exchange registrations of our PRC subsidiary, could subject us to fines or legal sanctions, restrict our overseas or cross-border investment activities, limit our PRC subsidiary’s ability to make distributions or pay dividends to us or affect our ownership structure, which could adversely affect our business and prospects.

 

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Any failure to comply with PRC regulations regarding the registration requirements for employee stock incentive plans may subject the PRC plan participants or us to fines and other legal or administrative sanctions.

 

In February 2012, SAFE promulgated the Notices on Issues Concerning the Foreign Exchange Administration for Domestic Individuals Participating in Stock Incentive Plan of Overseas Publicly-Listed Company, replacing earlier rules promulgated in March 2007. Pursuant to these rules, PRC citizens and non-PRC citizens who reside in China for a continuous period of not less than one year who participate in any stock incentive plan of an overseas publicly listed company, subject to a few exceptions, are required to register with SAFE through a domestic qualified agent, which could be the PRC subsidiary of such overseas listed company, and complete certain other procedures. In addition, an overseas entrusted institution must be retained to handle matters in connection with the exercise or sale of stock options and the purchase or sale of shares and interests. We and our executive officers and other employees who are PRC citizens or who have resided in the PRC for a continuous period of not less than one year and who have been granted options or other awards will be subject to these regulations when our Company becomes an overseas listed company upon the completion of this offering. Failure to complete the SAFE registrations may subject them to fines and legal sanctions and may also limit our ability to contribute additional capital into our PRC subsidiary and limit our PRC subsidiary’s ability to distribute dividends to us. We also face regulatory uncertainties that could restrict our ability to adopt additional incentive plans for our directors, executive officers and employees under PRC law. See “Regulation—Regulations on Stock Incentive Plans.”

 

If we are classified as a PRC resident enterprise for PRC income tax purposes, such classification could result in unfavorable tax consequences to us and our non-PRC shareholders.

 

Under the PRC Enterprise Income Tax Law and its implementation rules, an enterprise established outside of the PRC with a “de facto management body” within the PRC is considered a resident enterprise and will be subject to the enterprise income tax on its global income at the rate of 25%. The implementation rules define the term “de facto management body” as the body that exercises full and substantial control over and overall management of the business, productions, personnel, accounts and properties of an enterprise. In April 2009, the State Administration of Taxation issued a circular, known as Circular 82, which provides certain specific criteria for determining whether the “de facto management body” of a PRC-controlled enterprise that is incorporated offshore is located in China. Although this circular only applies to offshore enterprises controlled by PRC enterprises or PRC enterprise groups, not those controlled by PRC individuals or foreigners like us, the criteria set forth in the circular may reflect the State Administration of Taxation’s general position on how the “de facto management body” test should be applied in determining the tax resident status of all offshore enterprises. According to Circular 82, an offshore incorporated enterprise controlled by a PRC enterprise or a PRC enterprise group will be regarded as a PRC tax resident by virtue of having its “de facto management body” in China and will be subject to PRC enterprise income tax on its global income only if all of the following conditions are met: (i) the primary location of the day-to-day operational management is in the PRC; (ii) decisions relating to the enterprise’s financial and human resource matters are made or are subject to approval by organizations or personnel in the PRC; (iii) the enterprise’s primary assets, accounting books and records, company seals, and board and shareholder resolutions, are located or maintained in the PRC; and (iv) at least 50% of voting board members or senior executives habitually reside in the PRC.

 

We believe none of our entities outside of China is a PRC resident enterprise for PRC tax purposes. See “Taxation—People’s Republic of China Taxation.” However, the tax resident status of an enterprise is subject to determination by the PRC tax authorities and uncertainties remain with respect to the interpretation of the term “de facto management body.” As all of our management members are based in China, it remains unclear how the tax residency rule will apply to our case. If the PRC tax authorities determine that we or any of our subsidiaries outside of China is a PRC resident enterprise for PRC enterprise income tax purposes, then we or such subsidiary could be subject to PRC tax at a rate of 25% on its world-wide income, which could materially reduce our net income. In addition, we will also be subject to PRC enterprise income tax reporting obligations. Furthermore, if the PRC tax authorities determine that we are a PRC resident enterprise for enterprise income tax purposes, gains realized on the sale or other disposition of our ordinary shares may be subject to PRC tax, at a rate of 10% in the case of non-PRC enterprises or 20% in the case of non-PRC individuals (in each case, subject to the provisions of any applicable tax treaty), if such gains are deemed to be from PRC sources. It is unclear whether non-PRC shareholders of our company would be able to claim the benefits of any tax treaties between their country of tax residence and the PRC in the event that we are treated as a PRC resident enterprise. Any such tax may reduce the returns on your investment in our ordinary shares.

 

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Regulatory bodies of the United States may be limited in their ability to conduct investigations or inspections of our operations in China.

 

From time to time, we may receive requests from certain U.S. agencies to investigate or inspect the Company’s operations, or to otherwise provide information. While we expect to comply with these requests from these regulators, there is no guarantee that such requests will be honored by those entities who provide services to us or with whom we associate, especially as those entities are located in China. Furthermore, an on-site inspection of our facilities by any of these regulators may be limited or entirely prohibited. Such inspections, though permitted by us and our affiliates, are subject to the unpredictability of the Chinese enforcement authorities, and may therefore be impossible to facilitate.

 

Enhanced scrutiny over acquisition transactions by the PRC tax authorities may have a negative impact on potential acquisitions we may pursue in the future.

 

The PRC tax authorities have enhanced their scrutiny over the direct or indirect transfer of certain taxable assets, including, in particular, equity interests in a PRC resident enterprise, by a non-resident enterprise by promulgating and implementing SAT Circular 59 and Circular 698, which became effective in January 2008, and a Circular 7 in replacement of some of the existing rules in Circular 698, which became effective in February 2015.

 

Under Circular 698, where a non-resident enterprise conducts an “indirect transfer” by transferring the equity interests of a PRC “resident enterprise” indirectly by disposing of the equity interests of an overseas holding company, the non-resident enterprise, being the transferor, may be subject to PRC enterprise income tax, if the indirect transfer is considered to be an abusive use of company structure without reasonable commercial purposes. As a result, gains derived from such indirect transfer may be subject to PRC tax at a rate of up to 10%. Circular 698 also provides that, where a non-PRC resident enterprise transfers its equity interests in a PRC resident enterprise to its related parties at a price lower than the fair market value, the relevant tax authority has the power to make a reasonable adjustment to the taxable income of the transaction.

 

In February 2015, the SAT issued Circular 7 to replace the rules relating to indirect transfers in Circular 698. Circular 7 has introduced a new tax regime that is significantly different from that under Circular 698. Circular 7 extends its tax jurisdiction to not only indirect transfers set forth under Circular 698 but also transactions involving transfer of other taxable assets, through the offshore transfer of a foreign intermediate holding company. In addition, Circular 7 provides clearer criteria than Circular 698 on how to assess reasonable commercial purposes and has introduced safe harbors for internal group restructurings and the purchase and sale of equity through a public securities market. Circular 7 also brings challenges to both the foreign transferor and transferee (or other person who is obligated to pay for the transfer) of the taxable assets. Where a non-resident enterprise conducts an “indirect transfer” by transferring the taxable assets indirectly by disposing of the equity interests of an overseas holding company, the non-resident enterprise being the transferor, or the transferee, or the PRC entity which directly owned the taxable assets may report to the relevant tax authority such indirect transfer. Using a “substance over form” principle, the PRC tax authority may disregard the existence of the overseas holding company if it lacks a reasonable commercial purpose and was established for the purpose of reducing, avoiding or deferring PRC tax. As a result, gains derived from such indirect transfer may be subject to PRC enterprise income tax, and the transferee or other person who is obligated to pay for the transfer is obligated to withhold the applicable taxes, currently at a rate of 10% for the transfer of equity interests in a PRC resident enterprise.

 

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We face uncertainties on the reporting and consequences on future private equity financing transactions, share exchange or other transactions involving the transfer of shares in our company by investors that are non-PRC resident enterprises. The PRC tax authorities may pursue such non-resident enterprises with respect to a filing or the transferees with respect to withholding obligation, and request our PRC subsidiaries to assist in the filing. As a result, we and non-resident enterprises in such transactions may become at risk of being subject to filing obligations or being taxed, under Circular 59 or Circular 698 and Circular 7, and may be required to expend valuable resources to comply with Circular 59, Circular 698 and Circular 7 or to establish that we and our non-resident enterprises should not be taxed under these circulars, which may have a material adverse effect on our financial condition and results of operations.

 

The PRC tax authorities have the discretion under SAT Circular 59, Circular 698 and Circular 7 to make adjustments to the taxable capital gains based on the difference between the fair value of the taxable assets transferred and the cost of investment. Although we currently have no plans to pursue any acquisitions in China or elsewhere in the world, we may pursue acquisitions in the future that may involve complex corporate structures. If we are considered a non-resident enterprise under the PRC Enterprise Income Tax Law and if the PRC tax authorities make adjustments to the taxable income of the transactions under SAT Circular 59 or Circular 698 and Circular 7, our income tax costs associated with such potential acquisitions will be increased, which may have an adverse effect on our financial condition and results of operations.

 

If we cannot effectively secure our network, customers’ personal information, which we collect through our online platform, may be subject to leakage or theft, and if the regulators believe we have failed to fulfill our network security obligations, our online platform may be required to suspend operations and rectification, which may have a material adverse effect on our operations and financial results due to the large amount of our daily trading conducted online.

 

On November 7, 2016, the Standing Committee of the National People’s Congress of the PRC (the “NPC”) promulgated the Cybersecurity Law of the PRC (“Cybersecurity Law”) which became effective on June 1, 2017. Under this law, network operators must provide cybersecurity protection and protect the integrity, confidentiality and availability of network data. The Cybersecurity Law also standardizes the collection and usage of personal information and requires network operators to protect users’ privacy security. If a network operator violates the Cybersecurity Law, it can face various penalties, including but not limited to the suspension of related business, winding up, shutting down its websites, and revocation of its business license, all of which may be imposed by the relevant authority, along with fines up to RMB 1 million (approximately $145,985) if severe damage occurred.

 

We collect and process the personal information of the customers who register on our online platforms, for the purpose of managing and maintaining our customers and their trading information. Nanjing Yanyu, one of the wholly-owned subsidiaries of Jiangsu Yanggu, which having a primary business to provide technical support for International Exchange’s online collectibles and art e-commerce platform, established network security policies, including Data Security Management Measures, Data Center Network Security Management Rules, Information Security Management Rules and an Information Security Emergency Plan. We will also publish “Investor Information Protection Policy” on our online platform, to help the customers who register on our online platforms understand what, where and how their private information be collected and used by International Exchange and its affiliates and what measures we will take to protect their personal information. Nonetheless, we cannot assure that our cybersecurity protection rules and related technical measures are adequate to prevent network data in our online platform from being breached, stolen or tampered with. If our online platform network is at risk, we may be required by competent cybersecurity supervision authorities to suspend online platforms before rectification and we may be fined up to RMB 1,000,000 if it is found that our online platform has material security risks or if severe cybersecurity events occur due to failure of our network security protection.

 

Although the subsidiary of our VIE operates and maintains the network platform in mainland China, our main business, providing collectibles and artwork e-commerce services, is conducted by International Exchange in Hong Kong. Therefore, due to the lack of clarity in the Personal Information Cross-Border Transfer Safety Assessment Measures (Draft) and its enforcement by the relevant government authorities, our business model may be considered involving transfer of customers’ personal information across border and we may be subject to the Personal Information Cross-Border Transfer Safety Assessment Measures (Draft). We cannot guarantee that we can pass the safety assessment for cross-border transfer of personal information required by the Personal Information Cross-Border Transfer Safety Measures (Draft). If we fail this assessment, International Exchange may not use customers’ personal information stored in mainland China to process its tradings on the online platform, which would result in a significant adverse impact on our business operations.

 

On June 13, 2019, the State Internet Information Office of the PRC issued a public comment draft of Private Information Cross-Border Transfer Safety Assessment Measures (“Personal Information Safety Measures (Public Draft)”) which will be enforced by the relevant provincial network information office once it becomes effective. The Personal Information Safety Measures (Public Draft) is formulated in accordance with the Cybersecurity Law and it requires that before the personal information can be transferred out of China, the network operator shall report its request for safety assessment to the provincial network information office, and such office shall complete the safety assessment, typically within 15 working days. A new security assessment shall be carried out every two years, or in the event of a change in purpose of the cross-border transfer of personal information or a change in the type or overseas storage period of such information. Any relevant network information office has the authority to suspend or termination the personal information transfer activities from any network operators, if any of the following situations occur: (i) the network operators or receivers experience a severe data leakage, data abuse and other similar events; (ii) the individuals who provide personal information are unable to protect his/her legitimate rights and interests; or (iii) the network operators or receivers are not capable of protecting personal information safety.

 

We operate and maintain our online platform for collectibles and artwork trading through Nanjing Yanyu, one of the subsidiaries of our VIE in mainland China. However, we provide collectibles and artwork e-commerce services to art collectors and artwork investors through International Exchange in Hong Kong. The Personal Information Safety Measures (Public Draft) is still at public comment stage and has not been effective yet, and it is not clear whether International Exchange using customers’ personal information on our platform in Hong Kong comes under the scope of “the cross-border transfer of personal information”. If we are required to apply for the safety assessment required by the Personal Information Safety Measures (Public Draft) in the future when it becomes effective, we cannot assure that we will pass this safety assessment, which may have a material adverse effect on our operations and financial results.

 

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RISKS RELATED TO DOING BUSINESS IN HONG KONG

 

The Hong Kong legal system embodies uncertainties which could limit the legal protections available to you and us.

 

As one of the conditions for the handover of the sovereignty of Hong Kong to China, China had to accept some conditions such as Hong Kong’s Basic Law before its return. The Basic Law ensured Hong Kong will retain its own currency (the Hong Kong Dollar), legal system, parliamentary system and people’s rights and freedom for fifty years from 1997. This agreement has given Hong Kong the freedom to function in a high degree of autonomy. The Special Administrative Region of Hong Kong is responsible for its own domestic affairs including, but not limited to, the judiciary and courts of last resort, immigration and customs, public finance, currencies and extradition. Hong Kong continues using the English common law system.

 

However, if the PRC reneges on its agreement to allow Hong Kong to function autonomously, this could potentially impact Hong Kong’s common law legal system and may in turn bring about uncertainty in, for example, the enforcement of our contractual rights. This could, in turn, materially and adversely affect our business and operation. Additionally, intellectual property rights and confidentiality protections in Hong Kong may not be as effective as in the United States or other countries. Accordingly, we cannot predict the effect of future developments in the Hong Kong legal system, including the promulgation of new laws, changes to existing laws or the interpretation or enforcement thereof, or the preemption of local regulations by national laws. These uncertainties could limit the legal protections available to us, including our ability to enforce our agreements with our customers.

 

It will be difficult to acquire jurisdiction and enforce liabilities against our officers, directors and assets based in Hong Kong.

 

Certain of our assets will be located in Hong Kong and our officers and our present directors reside outside of the United States. As a result, it may not be possible for United States investors to enforce their legal rights, to effect service of process upon our directors or officers or to enforce judgments of United States courts predicated upon civil liabilities and criminal penalties of our directors and officers under Federal securities laws.

 

We may have difficulty establishing adequate management, legal and financial controls in Hong Kong, which could impair our planning processes and make it difficult to provide accurate reports of our operating results.

 

Although we will be required to implement internal controls, we may have difficulty in hiring and retaining a sufficient number of qualified employees to work in Hong Kong in these areas. As a result of these factors, we may experience difficulty in establishing the required controls, making it difficult for management to forecast its needs and to present the results of our operations accurately at all times. If we are unable to establish the required controls, market makers may be reluctant to make a market in our stock and investors may be reluctant to purchase our stock, which would make it difficult for you to sell any shares that you may own or acquire.

 

Our business may be affected by the Personal Data (Privacy) Ordinance of Hong Kong.

 

Members of our leading online platforms in Hong Kong, including China International Assets and Equity of Artworks Exchange Limited, would need to provide personal information during registration and our online platforms may monitor the online behavior of the members so as to gather data for market trend analysis and upgrade our website. As such, our business in Hong Kong is subject to Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong) (“PDPO”), which aims to protect the privacy of individuals of their personal data. The PDPO imposes a statutory duty on data users to comply with the requirements of the six data protection principles (the “Data Protection Principles”) contained in Schedule 1 to the PDPO. The PDPO provides that a data user shall not do an act, or engage in a practice, that contravenes a Data Protection Principle unless the act or practice, as the case may be, is required or permitted under the PDPO. If we violate the PDPO, we may be subject to fines and/or other penalties and may incur legal costs and experience negative media coverage, which could adversely affect our business, results of operations and reputation. 

 

Risks Related to Our Ordinary Shares and This Offering

 

There has been no public market for our shares prior to this offering, and if an active trading market does not develop you may not be able to resell our shares at or above the price you paid, or at all. 

 

Prior to this public offering, there has been no public market for our ordinary shares. We have applied to have our ordinary shares listed on NASDAQ.  If an active trading market for our ordinary shares does not develop after this offering, the market price and liquidity of our ordinary shares will be materially adversely affected. The initial public offering price for our ordinary shares will be determined by negotiations between us and the underwriters and may bear little or no relationship to the market price for our ordinary shares after the public offering. You may not be able to sell any ordinary shares that you purchase in the offering at or above the initial public offering price.  Accordingly, investors should be prepared to face a complete loss of their investment. 

 

Our ordinary shares may be thinly traded and you may be unable to sell at or near ask prices or at all if you need to sell your shares to raise money or otherwise desire to liquidate your shares. 

 

Assuming our ordinary shares begin trading on NASDAQ, our ordinary shares may be “thinly-traded”, meaning that the number of persons interested in purchasing our ordinary shares at or near bid prices at any given time may be relatively small or non-existent. This situation may be attributable to a number of factors, including the fact that we are relatively unknown to stock analysts, stock brokers, institutional investors and others in the investment community that generate or influence sales volume, and that even if we came to the attention of such persons, they tend to be risk-averse and might be reluctant to follow an unproven company such as ours or purchase or recommend the purchase of our shares until such time as we became more seasoned.  As a consequence, there may be periods of several days or more when trading activity in our shares is minimal or non-existent, as compared to a seasoned issuer which has a large and steady volume of trading activity that will generally support continuous sales without an adverse effect on share price. A broad or active public trading market for our ordinary shares may not develop or be sustained. 

 

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The market price for our ordinary shares may be volatile. 

 

The market price for our ordinary shares may be volatile and subject to wide fluctuations due to factors such as: 

 

the perception of U.S. investors and regulators of U.S. listed Chinese companies;
actual or anticipated fluctuations in our operating results;
changes in financial estimates by securities research analysts;
negative publicity, studies or reports;
conditions in Chinese and Hong Kong art and related service markets;
our capability to catch up with the technology innovations in the industry;
changes in the economic performance or market valuations of other collectibles and artwork trading and related services companies;
announcements by us or our competitors of acquisitions, strategic partnerships, joint ventures or capital commitments;
addition or departure of key personnel;
fluctuations of exchange rates between RMB, Hong Kong dollar and the U.S. dollar; and
general economic or political conditions in China and Hong Kong.

 

In addition, the securities market has from time to time experienced significant price and volume fluctuations that are not related to the operating performance of particular companies.  These market fluctuations may also materially and adversely affect the market price of our ordinary shares. 

 

Volatility in our ordinary shares price may subject us to securities litigation.

 

The market for our ordinary shares may have, when compared to seasoned issuers, significant price volatility and we expect that our share price may continue to be more volatile than that of a seasoned issuer for the indefinite future. In the past, plaintiffs have often initiated securities class action litigation against a company following periods of volatility in the market price of its securities. We may, in the future, be the target of similar litigation. Securities litigation could result in substantial costs and liabilities and could divert management’s attention and resources. 

 

We have broad discretion in the use of the net proceeds from this offering and may not use them effectively. 

 

Our management will have broad discretion in the application of the net proceeds, including for any of the purposes described in the section entitled “Use of Proceeds,” and you will not have the opportunity as part of your investment decision to assess whether the net proceeds are being used appropriately. Because of the number and variability of factors that will determine our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. The failure by our management to apply these funds effectively could harm our business.

 

In order to raise sufficient funds to enhance operations, we may have to issue additional securities at prices which may result in substantial dilution to our shareholders.

 

If we raise additional funds through the sale of equity or convertible debt, our current shareholders’ percentage ownership will be reduced. In addition, these transactions may dilute the value of ordinary shares outstanding. We may have to issue securities that may have rights, preferences and privileges senior to our ordinary shares. We cannot provide assurance that we will be able to raise additional funds on terms acceptable to us, if at all. If future financing is not available or is not available on acceptable terms, we may not be able to fund our future needs, which would have a material adverse effect on our business plans, prospects, results of operations and financial condition.

 

We are not likely to pay cash dividends in the foreseeable future.

 

We currently intend to retain any future earnings for use in the operation and expansion of our business. Accordingly, we do not expect to pay any cash dividends in the foreseeable future, but will review this policy as circumstances dictate. Should we determine to pay dividends in the future, our ability to do so will depend upon the receipt of dividends or other payments from the WFOE. The WFOE may, from time to time, be subject to restrictions on its ability to make distributions to us, including restrictions on the conversion of RMB into U.S. dollars or other hard currency and other regulatory restrictions.

 

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You may face difficulties in protecting your interests as a shareholder, as Cayman Islands law provides substantially less protection when compared to the laws of the United States and it may be difficult for a shareholder of ours to effect service of process or to enforce judgements obtained in the United States courts.

 

Our corporate affairs are governed by our current memorandum and articles of association and by the Companies Law (2018 Revision) and common law of the Cayman Islands. The rights of shareholders to take legal action against our directors and us, actions by minority shareholders and the fiduciary responsibilities of our directors to us under Cayman Islands law are to a large extent governed by the common law of the Cayman Islands. The common law of the Cayman Islands is derived in part from comparatively limited judicial precedent in the Cayman Islands as well as from English common law. Decisions of the Privy Council (which is the final court of appeal for British overseas territories such as the Cayman Islands) are binding on a court in the Cayman Islands. Decisions of the English courts, and particularly the Supreme Court of the United Kingdom and the Court of Appeal are generally of persuasive authority but are not binding on the courts of the Cayman Islands. The rights of our shareholders and the fiduciary responsibilities of our directors under Cayman Islands law are not as clearly established as they would be under statutes or judicial precedents in the United States. In particular, the Cayman Islands has a less developed body of securities laws as compared to the United States, and provide significantly less protection to investors. In addition, Cayman Islands companies may not have standing to initiate a shareholder derivative action before the United States federal courts. The Cayman Islands courts are also unlikely to impose liabilities against us in original actions brought in the Cayman Islands, based on certain civil liability provisions of United States securities laws.

 

Currently, all of our operations are conducted outside the United States, and substantially all of our assets are located outside the United States. All of our directors and officers are nationals or residents of jurisdictions other than the United States and a substantial portion of their assets are located outside the United States. As a result, it may be difficult for a shareholder to effect service of process within the United States upon these persons, or to enforce against us or them 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 in the United States.

 

As a result of all of the above, our shareholders may have more difficulty in protecting their interests through actions against us or our officers, directors or major shareholders than would shareholders of a corporation incorporated in a jurisdiction in the United States. 

 

We are a foreign private issuer within the meaning of the rules under the Exchange Act, and as such we are exempt from certain provisions applicable to United States domestic public companies. 

 

We are a foreign private issuer within the meaning of the rules under the Exchange Act. As such, we are exempt from certain provisions applicable to United States domestic public companies. For example:

 

we are not required to provide as many Exchange Act reports, or as frequently, as a domestic public company;
for interim reporting, we are permitted to comply solely with our home country requirements, which are less rigorous than the rules that apply to domestic public companies;
we are not required to provide the same level of disclosure on certain issues, such as executive compensation;
we are exempt from provisions of Regulation FD aimed at preventing issuers from making selective disclosures of material information;
we are not required to comply with the sections of the Exchange Act regulating the solicitation of proxies, consents or authorizations in respect of a security registered under the Exchange Act; and
we are not required to comply with Section 16 of the Exchange Act requiring insiders to file public reports of their share ownership and trading activities and establishing insider liability for profits realized from any “short-swing” trading transaction.

 

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We currently intend to file annual reports on Form 20-F and reports on Form 6-K as a foreign private issuer. Accordingly, our shareholders may not have access to certain information they may deem important. 

 

We are an “emerging growth company” within the meaning of the Securities Act, and if we take advantage of certain exemptions from disclosure requirements available to emerging growth companies, this could make it more difficult to compare our performance with other public companies.

 

We are an “emerging growth company” within the meaning of the Securities Act, as modified by the JOBS Act. Section 102(b)(1) of the JOBS Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies (that is, those that have not had a Securities Act registration statement declared effective or do not have a class of securities registered under the Exchange Act) are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition period and comply with the requirements that apply to non-emerging growth companies but any such an election to opt out is irrevocable. We have elected not to opt out of such extended transition period, which means that when a standard is issued or revised and it has different application dates for public or private companies, we, as an emerging growth company, can adopt the new or revised standard at the time private companies adopt the new or revised standard. This may make comparison of our financial statements with another public company which is neither an emerging growth company nor an emerging growth company which has opted out of using the extended transition period difficult or impossible because of the potential differences in accounting standards used.

 

As an “emerging growth company” under applicable law, we will be subject to lessened disclosure requirements. Such reduced disclosure may make our ordinary shares less attractive to investors.

 

For as long as we remain an “emerging growth company”, as defined in the JOBS Act, we will elect to take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies”, including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a non-binding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved.  Because of these lessened regulatory requirements, our shareholders would be left without information or rights available to shareholders of more mature companies. If some investors find our ordinary shares less attractive as a result, there may be a less active trading market for our ordinary shares and our share price may be more volatile. 

 

If we are classified as a passive foreign investment company, United States taxpayers who own our ordinary shares may have adverse United States federal income tax consequences.

 

A non-U.S. corporation such as ourselves will be classified as a passive foreign investment company, which is known as a PFIC, for any taxable year if, for such year, either:

 

  At least 75% of our gross income for the year is passive income; or
  The average percentage of our assets (determined at the end of each quarter) during the taxable year which produce passive income or which are held for the production of passive income is at least 50%.

 

Passive income generally includes dividends, interest, rents and royalties (other than rents or royalties derived from the active conduct of a trade or business) and gains from the disposition of passive assets.

 

If we are determined to be a PFIC for any taxable year (or portion thereof) that is included in the holding period of a U.S. taxpayer who holds our ordinary shares, the U.S. taxpayer may be subject to increased U.S. federal income tax liability and may be subject to additional reporting requirements.

 

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Depending on the amount of cash we raise in this offering, together with any other assets held for the production of passive income, it is possible that, for our 2019 taxable year or for any subsequent year, more than 50% of our assets may be assets which produce passive income. We will make this determination following the end of any particular tax year. Although the law in this regard is unclear, we treat our consolidated affiliated entities as being owned by us for United States federal income tax purposes, not only because we exercise effective control over the operation of such entities but also because we are entitled to substantially all of their economic benefits, and, as a result, we consolidate their operating results in our consolidated financial statements. For purposes of the PFIC analysis, in general, a non-U.S. corporation is deemed to own its pro rata share of the gross income and assets of any entity in which it is considered to own at least 25% of the equity by value.

 

For a more detailed discussion of the application of the PFIC rules to us and the consequences to U.S. taxpayers if we were determined to be a PFIC, see “Taxation — United States Federal Income Taxation — Passive Foreign Investment Company.”

 

We will incur increased costs as a result of being a public company, particularly after we cease to qualify as an “emerging growth company.”

 

Upon consummation of this offering, we will incur significant legal, accounting and other expenses as a public company that we did not incur as a private company. The Sarbanes-Oxley Act of 2002, as well as rules subsequently implemented by the SEC and NASDAQ, impose various requirements on the corporate governance practices of public companies. We are an “emerging growth company,” as defined in the JOBS Act and will remain an emerging growth company until the earlier of (1) the last day of the fiscal year (a) following the fifth anniversary of the completion of this offering, (b) in which we have total annual gross revenue of at least $1.07 billion, or (c) in which we are deemed to be a large accelerated filer, which means the market value of our ordinary shares that is held by non-affiliates exceeds $700 million as of the prior June 30th, and (2) the date on which we have issued more than $1.0 billion in non-convertible debt during the prior three-year period.  An emerging growth company may take advantage of specified reduced reporting and other requirements that are otherwise applicable generally to public companies. These provisions include exemption from the auditor attestation requirement under Section 404 in the assessment of the emerging growth company’s internal control over financial reporting and permission to delay adopting new or revised accounting standards until such time as those standards apply to private companies.

 

Compliance with these rules and regulations increases our legal and financial compliance costs and makes some corporate activities more time-consuming and costly. After we are no longer an “emerging growth company,” or until five years following the completion of our initial public offering, whichever is earlier, we expect to incur significant expenses and devote substantial management effort toward ensuring compliance with the requirements of Section 404 and the other rules and regulations of the SEC. For example, as a public company, we will be required to increase the number of independent directors and adopt policies regarding internal controls and disclosure controls and procedures. We will incurred additional costs in obtaining director and officer liability insurance. In addition, we will incur additional costs associated with our public company reporting requirements. It may also be more difficult for us to find qualified persons to serve on our board of directors or as executive officers. We are currently evaluating and monitoring developments with respect to these rules and regulations, and we currently estimate that we will incur approximately $600,000 per year in professional fees and other expenses as a result of being a public company.

 

Our Chairman and two other shareholders will have substantial influence over our company and their interests may not be aligned with the interests of our other shareholders.

 

Currently, Mun Wah Wan, Chairman of our board of directors beneficially owns 25% of our outstanding ordinary shares, and each of Aimin Kong and Huajun Gao beneficially owns 16.13% of our outstanding ordinary shares, and, collectively, will beneficially own 57.26% of our outstanding ordinary shares upon completion of our initial public offering. As a result of their significant shareholding, these shareholders have, and will continue to have, substantial influence over our business, including decisions regarding mergers, consolidations and the sale of all or substantially all of our assets, election of directors and other significant corporate actions. They may take actions that are not in the best interests of us or our other shareholders. This concentration of ownership may discourage, delay or prevent a change in control of our company, which could deprive our shareholders of an opportunity to receive a premium for their shares as part of a sale of our company and might reduce the market price of our ordinary shares. For more information regarding our principal shareholders and their affiliated entities, see “Principal Shareholders.”

 

If a limited number of participants in this offering purchase a significant percentage of the offering, the effective public float may be smaller than anticipated and the price of our ordinary shares may be volatile, which could subject us to securities litigation and make it more difficult for you to sell your shares.

 

As a company conducting a relatively small public offering, we are subject to the risk that a small number of investors will purchase a high percentage of the offering. While the underwriters are required to sell shares in this offering to at least 300 round lot shareholders (a round lot shareholder is a shareholder who purchases at least 100 shares) and at least 50% the minimum required number of round lot holders must each hold unrestricted shares with a minimum market value of $2,500 in order to ensure that we meet the NASDAQ initial listing standards, we have not otherwise imposed any additional obligations on the underwriters as to the maximum number of shares they may place with individual investors. If, in the course of marketing the offering, the underwriters were to determine that demand for our shares was concentrated in a limited number of investors and such investors determined to hold their shares after the offering rather than trade them in the market, other shareholders could find the trading and price of our shares affected (positively or negatively) by the limited availability of our shares. If this were to happen, investors could find our shares to be more volatile than they might otherwise anticipate. Companies that experience such volatility in their stock price may be more likely to be the subject of securities litigation. In addition, if a large portion of our public float were to be held by a few investors, smaller investors may find it more difficult to sell their shares.

 

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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

 

This prospectus contains forward-looking statements that reflect our current expectations and views of future events. The forward-looking statements are contained principally in the sections entitled “Prospectus Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business.” Known and unknown risks, uncertainties and other factors, including those listed under “Risk Factors,” may cause our actual results, performance or achievements to be materially different from those expressed or implied by the forward-looking statements.

 

You can identify some of these forward-looking statements by words or phrases such as “may,” “will,” “expect,” “anticipate,” “aim,” “estimate,” “intend,” “plan,” “believe,” “is/are likely to,” “potential,” “continue” or other similar expressions. We have based these forward-looking statements largely on our current expectations and projections about future events that we believe may affect our financial condition, results of operations, business strategy and financial needs. These forward-looking statements include statements relating to:

 

our goals and strategies;
our future business development, financial conditions and results of operations;
the expected growth of the collectibles and artwork trading and related services marketplace market in China;
fluctuations in interest rates;
our expectations as to collectability of the revenues from collectibles and artwork trades facilitated through our platform and our services to our customers;
our expectations regarding demand for and market acceptance of our products and services;
our expectations regarding our relationships with collectibles and artwork buyers and sellers;
competition in our industry; and
relevant government policies and regulations relating to our industry.

 

These forward-looking statements involve various risks and uncertainties. Although we believe that our expectations expressed in these forward-looking statements are reasonable, our expectations may later be found to be incorrect. Our actual results could be materially different from our expectations. Important risks and factors that could cause our actual results to be materially different from our expectations are generally set forth in “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business,” “Regulation” and other sections in this prospectus. You should thoroughly read this prospectus and the documents that we refer to with the understanding that our actual future results may be materially different from and worse than what we expect. We qualify all of our forward-looking statements by these cautionary statements.

 

This prospectus contains certain data and information that we obtained from various government and private publications. Statistical data in these publications also include projections based on a number of assumptions. Our industry may not grow at the rate projected by market data, or at all. Failure of this market to grow at the projected rate may have a material and adverse effect on our business and the market price of our ordinary shares. In addition, the rapidly changing nature of the shared workspace and consulting services marketplace industry results in significant uncertainties for any projections or estimates relating to the growth prospects or future condition of our market. Furthermore, if any one or more of the assumptions underlying the market data are later found to be incorrect, actual results may differ from the projections based on these assumptions. You should not place undue reliance on these forward-looking statements.

 

The forward-looking statements made in this prospectus relate only to events or information as of the date on which the statements are made in this prospectus. Except as required by law, we undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, after the date on which the statements are made or to reflect the occurrence of unanticipated events. You should read this prospectus and the documents that we refer to in this prospectus and have filed as exhibits to the registration statement, of which this prospectus is a part, completely and with the understanding that our actual future results may be materially different from what we expect.

 

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USE OF PROCEEDS

 

We estimate that we will receive net proceeds from this offering of approximately $7.70 million after deducting estimated underwriting discounts and commissions, non-accountable expense allowance, and the estimated offering expenses payable by us and based upon an assumed initial public offering price of $4 per ordinary share (excluding any exercise of the underwriters’ over-allotment option). A $1.00 increase in the assumed initial public offering price of $4 per share would increase the net proceeds to us from this offering by approximately $2.3 million, after deducting the estimated underwriting discounts and commissions, non-accountable expense allowance, and estimated aggregate offering expenses payable by us and assuming no change to the number of ordinary share offered by us as set forth on the cover page of this prospectus. In no case would we decrease the initial public offering price to less than $4 per share.

 

We plan to use approximately $4 million of the net proceeds we will receive from this offering to invest in information technology infrastructure and proprietary software, approximately $3 million for development of our new businesses, including our trading service business on the online platform under HKDAEx Limited, approximately $0.7 million to promote our brand and services and for general corporate purposes.

 

The foregoing represents our current intentions based upon our present plans and business conditions to use and allocate the net proceeds of this offering. Our management, however, will have significant flexibility and discretion to apply the net proceeds of this offering. If an unforeseen event occurs or business conditions change, we may use the proceeds of this offering differently than as described in this prospectus. See “Risk Factors—Risks Related to Our Ordinary Shares and This Offering—You must rely on the judgment of our management as to the use of the net proceeds from this offering, and such use may not produce income or increase the price of our ordinary shares.”

 

We plan to use approximately $0.25 million out of the proceeds to pay the costs and expenses associated with being a public company. This portion of the offering proceeds will be immediately available to us following the closing of the offering as it will not be remitted to China and Hong Kong.

 

We have agreed with the underwriters to establish an escrow account in the United States and to fund such account with $600,000 from the net proceeds of this offering. Such account may be utilized by the underwriters to fund any bona fide indemnification claims of the underwriters arising during the 24 month period following the closing of this offering. All funds that are not subject to an indemnification claim will be returned to us after the applicable period expires. We will pay the reasonable fees and expenses of the escrow agent.

 

Approximately $3.4 million of the proceeds will be immediately remitted to China following the completion of this offering to fund the registered capital of the WFOE and approximately $3 million of the proceeds will be immediately remitted to Hong Kong following the completion of this offering to fund our business development and online platform in Hong Kong. However, in using the proceeds of this offering, we are permitted under PRC laws and regulations as an offshore holding company to provide funding to our wholly foreign-owned subsidiary in China only through loans or capital contributions and to our consolidated variable interest entities only through loans, subject to the approval of government authorities and limit on the amount of capital contributions and loans. Subject to satisfaction of applicable government registration and approval requirements, we may extend inter-company loans to our wholly foreign-owned subsidiary in China or make additional capital contributions to our wholly-foreign-owned subsidiary to fund its capital expenditures or working capital. For an increase of registered capital of our wholly foreign-owned subsidiary, we need to file documentation with MOFCOM or its local counterparts. If we provide funding to our wholly foreign-owned subsidiary through loans, the risk-weighted balance for cross-border financing shall not exceed the upper limit of the risk-weighted balance for cross-border financing. Such loans must be filed with SAFE or its local branches and update such loan and equity-related information annually. Even though the WFOE may settle the loan at will, we cannot assure you that we will be able to settle on a timely basis due to foreign control policies in China, if at all. See “Risk Factors—Risks Related to Our Corporate Structure—PRC regulation of loans to and direct investment in PRC entities by offshore holding companies and governmental control of currency conversion may delay or prevent us from using the proceeds of this offering to make loans to or make additional capital contributions to our PRC subsidiary, which could materially and adversely affect our liquidity and our ability to fund and expand our business.”

 

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DIVIDEND POLICY

 

We have not previously declared or paid cash dividends and we have no plan to declare or pay any dividends in the near future on our ordinary shares. We currently intend to retain most, if not all, of our available funds and any future earnings to operate and expand our business.

 

We are a holding company incorporated in the Cayman Islands. We rely principally on dividends from our PRC subsidiaries for our cash requirements, including any payment of dividends to our shareholders. PRC regulations may restrict the ability of our PRC subsidiaries to pay dividends to us. See “PRC Laws and Regulations Relating to Foreign Exchange—Dividend Distribution.”

 

Our board of directors has discretion as to whether to distribute dividends, subject to applicable laws. Even if our board of directors decides to pay dividends, the form, frequency and amount will depend upon our future operations and earnings, capital requirements and surplus, general financial condition, contractual restrictions and other factors that the board of directors may deem relevant. Cash dividends on our ordinary shares, if any, will be paid in U.S. dollars.

 

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CAPITALIZATION

 

The following tables set forth our capitalization as of June 30, 2019:

 

on an actual basis;

 

on an adjusted basis to reflect the sale of 2,500,000 ordinary shares in this offering, at an assumed initial public offering price of $4 per share, after deducting the underwriting discounts and commissions, non-accountable expense allowance, and estimated offering expenses payable by us, assuming the Underwriter does not exercise the over-allotment option.

 

The adjustments reflected below are subject to change and are based upon available information and certain assumptions that we believe are reasonable. Total shareholders’ equity and total capitalization following the completion of this offering are subject to adjustment based on the actual initial public offering price and other terms of this offering determined at pricing. You should read this table together with our consolidated financial statements and the related notes included elsewhere in this prospectus and the information under “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”

 

    As of June 30, 2019  
    Actual     As
Adjusted
 
    (Unaudited)        
Equity:            
Preferred shares, $0.00005 par value, 100,000,000 shares authorized, 0 shares issued and outstanding as of June 30, 2019 on an actual and as adjusted basis*     -       -  
Ordinary shares, $0.00005 par value, 900,000,000 shares authorized, 24,800,000 shares issued and outstanding on an actual basis and 27,300,000 ordinary shares issued and outstanding on as adjusted basis**     1,240       1,365  
Treasury shares, at cost, 3,100,000 issued and outstanding on actual and adjusted basis***     (155 )     (155 )
Additional paid-in capital     1,607,719       9,325,755  
Statutory reserves     112,347       112,347  
Retained earnings     8,781,582       8,781,582  
Accumulated other comprehensive loss     (168,059 )     (168,059 )
Total equity     10,334,674       18,052,835  
                 
Total capitalization     10,334,674       18,052,835  

  

* given retroactive effect to re-designation of preferred shares on September 12, 2019.

 

** given retroactive effect to 2-for -1 forward stock split to authorized and issued and outstanding shares.
   
*** given retroactive effect to the surrender of an aggregate of 3,100,000 ordinary shares, or 12.5% of 24,800,000 outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

    

A $1.00 increase in the assumed initial public offering price of $4 per share would increase the as adjusted amount of total capitalization by $2.3 million, assuming that the number of ordinary shares offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting underwriting discounts and commissions, non-accountable expense allowance and estimated offering expenses payable by us. In no case would we decrease the initial public offering price to less than $4 per share. An increase (decrease) of 1.0 million in the number of ordinary shares offered by us, as set forth on the cover page of this prospectus, would increase (decrease) the as adjusted amount of total capitalization by $3.7 million assuming no change in the assumed initial public offering price per ordinary share as set forth on the cover page of this prospectus. The as adjusted information is illustrative only, and we will adjust this information based on the actual initial public offering price and other terms of this offering determined at pricing.

 

42

 

 

DILUTION

  

If you invest in our ordinary shares, you will incur immediate dilution since the initial public offering price per share you will pay in this offering is more than the net tangible book value per ordinary share immediately after this offering.

 

The net tangible book value of our ordinary shares as of June 30, 2019 was $8,913,221, or $0.4 per share, based on 21,700,000 ordinary shares (24,800,000 ordinary shares issued net of 3,100,000 treasury stock) outstanding as of June 30, 2019. Net tangible book value represents the amount of our total assets reduced by the amount of our total liabilities, net intangible assets and deferred offering costs, divided by the total number of ordinary shares outstanding. Tangible assets equal our total assets less net intangible assets, total liabilities and deferred offering costs.

  

The dilution in net tangible book value per share to new investors, represents the difference between the amount per share paid by purchasers of shares in this offering and the pro forma net tangible book value per share immediately after completion of this offering.  After giving effect to the sale of the 2,500,000 shares being sold pursuant to this offering at $4.0 per share and after deducting underwriting discounts and commissions payable by us in the amount of $700,000, non-accountable expense allowance payable by us in the amount of $100,000, and estimated offering expenses in the amount of approximately $1.5 million, our pro forma net tangible book value would be approximately $16.6 million or $0.7 per share of ordinary shares. This represents an immediate increase in net tangible book value of $0.3 per share to existing shareholders and an immediate decrease in net tangible book value of $3.3 per share to new investors purchasing the shares in this offering.

  

The following table illustrates this per share dilution:

 

    As of
June 30,
2019
 
    (Unaudited)  
Initial public offering price per share   $ 4.0  
Net tangible book value per share as of June 30, 2019     0.4  
Increase in net tangible book value per share attributable to existing shareholders     0.3  
Pro forma net tangible book value per share after this offering     0.7  
Dilution per share to new investors   $ 3.3  

 

A $1.00 increase (decrease) in the assumed initial public offering price would increase (decrease) our pro forma net tangible book value per share after this offering by approximately $2.3 million, and increase the value per share to new investors by approximately $0.1, after deducting the underwriting discounts and commissions, non-accountable expense allowance, and estimated offering expenses payable by us. An increase (decrease) of 1.0 million ordinary shares in the number of ordinary shares we are offering would increase (decrease) our pro forma net tangible book value after this offering by approximately $0.1 per share, and would increase (decrease) dilution to new investors by approximately $(0.1) per share, assuming the assumed initial public offering price per ordinary share, as set forth on the cover page of this prospectus remains the same, and after deducting the estimate underwriting discounts and commissions, non-accountable expense allowance and estimated offering expenses payable by us. The pro forma information is illustrative only, and we will adjust this information based on the actual initial public offering price and other terms of this offering determined at pricing.

 

The following table sets forth, on an as adjusted basis as of June 30, 2019, the difference between the number of ordinary shares purchased from us, the total cash consideration paid, and the average price per share paid by our existing shareholders and by new public investors before deducting estimated underwriting discounts and commissions, non-accountable expense allowance, and estimated offering expenses payable by us, using an assumed initial public offering price of $4 per ordinary share:

 

    Shares Purchased     Total Cash Consideration     Average Price Per  
    Number     Percent     Amount     Percent     Share  
Existing shareholders     21,700,000       89.7 %   $ 1,608,804       13.9 %   $ 0.1  
New investors from public offering     2,500,000       10.3 %   $ 10,000,000       86.1 %   $ 4.0  
Total     24,200,000       100.0 %   $ 11,608,804       100.0 %     0.5  

 

43

 

 

EXCHANGE RATE INFORMATION

 

Our business is primarily conducted in China and all of our revenues are received and denominated in RMB and Hong Kong Dollar (“HK$”). Capital accounts of our condensed financial statements are translated into United States dollars from RMB and HK$ at their historical exchange rates when the capital transactions occurred. Assets and liabilities are translated at the exchange rates as of the balance sheet date.  Income and expenses are translated at the average exchange rate of the period.  RMB is not freely convertible into foreign currency and all foreign exchange transactions must take place through authorized institutions.  No representation is made that the RMB amounts could have been, or could be, converted into United States dollars at the rates used in translation.

 

The following table sets forth information concerning exchange rates between the RMB, HK$ and the United States dollar for the periods indicated.

 

The consolidated balance sheet amounts, with the exception of shareholder’s equity at June 30, 2019 and December 31, 2018 were translated at 6.87 RMB and 6.88 RMB to $1.00. The average translation rates applied to the unaudited interim consolidated statements of income and cash flows for the six months ended June 30, 2019 and 2018 were 6.78 RMB and 6.37 RMB. The balance sheet amounts, with the exception of shareholder’s equity at June 30, 2019 and December 31, 2018 were translated at 7.81 HKD and 7.83 HKD to $1.00. The average translation rates applied to the unaudited interim consolidated statements of income and cash flows six months ended June 30, 2019 and 2018 were 7.84 HKD. The shareholder’s equity accounts were translated at their historical rates. Amounts reported on the statement of cash flows will not necessarily agree with changes in the corresponding balances on the consolidated balance sheet.

 

44

 

 

ENFORCEABILITY OF CIVIL LIABILITIES

 

We were incorporated in the Cayman Islands in order to enjoy the following benefits:

 

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, certain disadvantages accompany incorporation in the Cayman Islands. These disadvantages include, but are not limited to, the following:

 

The Cayman Islands has a less developed body of securities laws as compared to the United States and these securities laws provide significantly less protection to investors; and

 

Cayman Islands companies may not have standing to sue before the federal courts of the United States.

 

Our constitutional documents do not contain provisions requiring that disputes, including those arising under the securities laws of the United States, between us, our officers, directors and shareholders, be arbitrated. Currently, all of our operations are conducted outside the United States, and substantially all of our assets are located outside the United States. All of our directors and officers are nationals or residents of jurisdictions other than the United States and a substantial portion of their assets are located outside the United States. As a result, it may be difficult for a shareholder to effect service of process within the United States upon these persons, or to enforce against us or them 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 in the United States.

 

We have appointed Cogency Global Inc., located at 10 E 40th Street, 10th Floor, New York, NY 10016, as our agent to receive service of process with respect to any action brought against us in the United States in connection with this offering under the federal securities laws of the United States or of any State in the United States. There is uncertainty as to whether the courts of the Cayman Islands and China, respectively, would:

 

recognize or enforce judgments of United States courts obtained against us or our directors or officers predicated upon the civil liability provisions of the securities laws of the United States or any state in the United States; or
entertain original actions brought in each respective jurisdiction against us or our directors or officers predicated upon the securities laws of the United States or any state in the United States.

 

It is uncertain whether the courts of the Cayman Islands will allow shareholders of our company to originate actions in the Cayman Islands based upon securities laws of the United States. In addition, there is uncertainty with regard to Cayman Islands law related to whether a judgment obtained from the U.S. courts under civil liability provisions of U.S. securities laws will be determined by the courts of the Cayman Islands as penal or punitive in nature. If such a determination is made, the courts of the Cayman Islands will not recognize or enforce the judgment against a Cayman Islands company, such as our company. As the courts of the Cayman Islands have yet to rule on making such a determination in relation to judgments obtained from U.S. courts under civil liability provisions of U.S. securities laws, it is uncertain whether such judgments would be enforceable in the Cayman Islands. Although there is no statutory enforcement in the Cayman Islands of judgments obtained in the federal or state courts of the United States (and the Cayman Islands are not a party to any treaties for the reciprocal enforcement or recognition of such judgments), a judgment obtained in such jurisdiction will be recognized and enforced in the courts of the Cayman Islands at common law, without any reexamination of the merits of the underlying dispute, by an action commenced on the foreign judgment debt in the Grand Court of the Cayman Islands, provided such judgment (a) is given by a foreign court of competent jurisdiction, (b) imposes on the judgment debtor a liability to pay a liquidated sum for which the judgment has been given, (c) is final, (d) is not in respect of taxes, a fine or a penalty, and (e) was not obtained in a manner and is not of a kind the enforcement of which is contrary to natural justice or the public policy of the Cayman Islands.

 

Allbright Law Offices has further advised us that the recognition and enforcement of foreign judgments are subject to compliance with the PRC Civil Procedures Law and relevant civil procedure requirements in the PRC. PRC courts may recognize and enforce foreign judgments in accordance with the requirements of PRC Civil Procedures Law based either on treaties between China and the country where the judgment is made or on reciprocity between jurisdictions. China does not have any treaties or other form of reciprocity with the United States or the Cayman Islands that provide for the reciprocal recognition and enforcement of foreign judgments. In addition, according to the PRC Civil Procedures Law, courts in the PRC will not enforce a foreign judgment against us or our directors and officers if they decide that the judgment violates the basic principles of PRC law or national sovereignty, security or public interest. As a result, it is uncertain whether and on what basis a PRC court would enforce a judgment rendered by a court in the United States or in the Cayman Islands.

 

45

 

 

SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA

 

The following summary consolidated financial statements for the six months ended June 30, 2019 and 2018 and the year ended December 31, 2018 are derived from our consolidated financial statements included elsewhere in this prospectus. Our consolidated financial statements are prepared and presented in accordance with generally accepted accounting principles in the United States, or U.S. GAAP.

 

Our historical results for any period are not necessarily indicative of results to be expected for any future period. You should read the following summary financial information in conjunction with the consolidated financial statements and related notes and the information under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this prospectus.

 

The following table presents our summary consolidated statement of operations and comprehensive income (loss) for the six months ended June 30, 2019 and 2018 and the year ended December 31, 2018.

 

    For the Six Months Ended
June 30,
2019
    For the Six Months Ended
June 30,
2018
    For the Year Ended
December 31,
2018
 
    (Unaudited)     (Unaudited)        
                   
Operating revenues   $ 7,851,515     $ -     $ 5,352,700  
                         
Cost of revenues     (593,510 )     (10,100 )     (500,375 )
                         
Gross Profit     7,258,005       (10,100 )     4,852,325  
                         
Operating expenses:                        
Selling and marketing expenses     (48,087 )     -       (1,627,488 )
General and administrative expenses     (913,140 )     (20,341 )     (557,689 )
Total operating expenses     (961,227 )     (20,341 )     (2,185,177 )
                         
Other income (expense)     18,348       (49 )     (43,010 )
                         
Income (loss) before income taxes     6,315,126       (30,490 )     2,624,138  
                         
Provision for income taxes     45,335       -       -  
                         
Net income (loss)   $ 6,269,791     $ (30,490 )   $ 2,624,138  

 

The following table presents our summary consolidated balance sheet data as of June 30, 2019 and December 31, 2018.

 

   

As of

June 30, 2019

    As of December 31, 2018  
    (Unaudited)        
Current assets   $ 9,532,699     $ 3,402,171  
Other assets     2,506,908       1,095,021  
Total assets     12,039,607       4,497,192  
Total liabilities     1,704,933       1,849,017  
Total shareholders’ equity   $ 10,334,674     $ 2,648,175  

 

46

 

 

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND

RESULTS OF OPERATIONS

 

The following management’s discussion and analysis of financial condition and results of operations contains forward-looking statements which involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including those set forth under “Risk Factors” and elsewhere in this prospectus. We assume no obligation to update forward-looking statements or the risk factors. You should read the following discussion in conjunction with our consolidated financial statements and related notes included elsewhere in this prospectus.

 

Overview

 

We are an online provider of collectibles and artwork e-commerce services, which allow collectors, artists and art dealers and owners to access a much bigger art trading market where they can engage with a wider range of collectibles and artwork investors than they could likely encounter without our platforms. We currently facilitate trading by individual customers of all kinds of collectibles and artwork and commodities on our leading online platforms owned by our subsidiaries in Hong Kong, namely the China International Assets and Equity of Artworks Exchange Limited and HKDAEx Limited. We commenced our operations in March 2018 and our customer trading volume has been growing rapidly since then. We also provide online and offline integrated marketing, storage and technical maintenance service to our customers in China.

 

According to the report of “E-commerce in China 2018” released by Ministry of Commerce of the People’s Republic of China on May 29, 2019, China’s e-commerce continues to grow in 2018, and has ranked the first in the global online retail market. Data of National Bureau of Statistics of China indicates that in 2018, the national e-commerce transaction volume reached RMB 31.63 trillion yuan (approximately $4.62 trillion), an increase of 8.5% year-on-year. On many mainstream e-commerce platforms, cultural products such as arts and crafts flourished and developed rapidly, and art e-commerce is gradually growing. Online trading has become a major trend of the global art trade. As a comprehensive service company with rich cultural and art collection market operations and marketing, we seize current development opportunities and provide online and offline supporting services for domestic and international art e-commerce platforms. We plan to build a complete art business e-commerce service chain to serve the industry.

 

We provide customers of our online platform with comprehensive services, including account opening, art investment education, market information, research, real-time customer support, and artwork warehousing services. Most services are delivered online through our proprietary client software and call center. Our client software provides not only market information and analysis, but also interactive functions including live discussion boards and instant messaging with customer service representatives, which we believe enhances our customers’ engagement. Internally, we legally collect and analyze customer behavior and communications data from our client software, customer relationship management system and the exchanges, which allow us to better understand, attract and serve our customers.

 

We provide industry solutions and related software products, system development and technical support services for our cooperation e-commerce platform customers.

 

We strive to minimize conflicts of interest with our customers, which we believe is essential for our long-term success. Under the trading rules of the two exchange platforms we operate on, we do not set, quote or influence the trading prices, and cannot access our customers’ money.

 

Key Factors Affecting Our Results

 

We believe the key factors affecting our financial condition and results of operations include the following:

 

47

 

 

Number of Active Traders

 

Our results of operations are dependent on the number of active traders using our platform. Active traders is defined as the total number of individuals who placed trades and traded collectibles and artworks on our platform during the relevant period. We had approximately 61,000 and 0 traders that participated in trading collectibles and artwork on our platforms for the six months ended June 30, 2019 and 2018, respectively. We had approximately 38,000 traders that participated in trading collectibles and artwork on our platform for the year ended December 31, 2018. Our ability to attract new clients depends on our ability to expand our marketing efforts and recruit more agents to develop clients and markets for us.

 

Number of Transactions

 

During the six months ended June 30, 2019 and 2018, our platform facilitated and completed approximately 32.5 million and nil transactions, respectively. During the year ended December 31, 2018, our platform facilitated and completed approximately 15 million transactions. Our ability to increase the number of transactions depends on our ability to attract more traders and increase the product mix traded on our platform.

 

Transaction Value

 

Transaction value is defined as the dollar amount of the purchase and sale of the ownership units of the collectibles and artworks after they are listed on our platform. During the six months ended June 30, 2019 and 2018, total transaction value amounted to approximately $981 million and 0 respectively. During the year ended December 31, 2018, total transaction value amounted to approximately $400 million. Our ability to increase transaction value is to attract more high net worth investors and sellers for higher value artworks.

 

Average Transaction Value Per Trader

 

Average transaction value per trader is calculated by dividing the total number of active traders from total transaction value during the relevant period. During the six months ended June 30, 2019 and 2018, our average transaction value per client was approximately $0.02 million and $0, respectively. For the year ended December 31, 2018, our average transaction value per client was approximately $0.01 million. Our ability to increase average transaction value is to increase higher value artworks in our product mix.

 

Results of Operations

 

The tables in the following discussion summarize our consolidated statements of operations for the periods indicated. This information should be read together with our consolidated financial statements and related notes included elsewhere in this prospectus. The operating results in any period are not necessarily of the results that may be expected for any future period.

 

Six Months Ended June 30, 2019 vs. June 30, 2018

 

    For the Six Months Ended
June 30,
    Variance  
    2019     2018     Amount     %  
    (Unaudited)     (Unaudited)              
Revenues   $ 7,830,148     $ -       7,830,148       100 %
Revenues – related parties     81,390       -       81,390       100 %
Sales taxes     (60,023 )     -       60,023       100 %
Cost of revenues     (593,510 )     (10,100 )     583,410       5,776 %
Gross profit     7,258,005       (10,100 )     7,268,105       71,961 %
Operating expenses     (961,227 )     (20,341 )     940,886       4,626 %
Income (loss) from operations     6,296,778       (30,441 )     6,327,219       20,785 %
Other income (expenses)     18,348       (49 )     18,397       37,545 %
Income (loss) before income taxes     6,315,126       (30,490 )     6,345,616       20,812 %
Provision for income taxes     45,335       -       45,335       100 %
Net income (loss)     6,269,791       (30,490 )     6,300,281       20,663 %
Foreign currency translation adjustment     (78,797 )     1,861       (80,658 )     (4,334 )%
Comprehensive income (loss)   $ 6,190,994     $ (28,629 )     6,219,623       21,725 %
Weighted average number of ordinary shares outstanding – basic and diluted*     18,810,556       17,500,000       1,310,556       7 %
Basic and diluted earnings per share*   $ 0.33     $ -       0.33       100 %

 

* given retroactive effect to 2-for-1 forward stock split to authorized and issued and outstanding shares as well as the surrender of 12.5% of our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

 

48

 

 

Revenues:

 

The following table sets forth the principal components of our net revenues by amounts and percentages of our net revenues for the periods indicated:

 

    For the Six Months Ended June 30     Variance  
    2019     2018     Amount     %  
    (Unaudited)     (Unaudited)              
    Revenue     %     Revenue     %              
Listing services fees (1)   $ 769,842       9.8 %   $      -             -       769,842       100.0 %
Transaction fee (2)     2,939,010       37.4 %     -       -       2,939,010       100.0 %
Marketing service fees (3)     4,112,056       52.4 %     -       -       4,112,056       100.0 %
Other revenues*     90,630       1.2 %     -       -       90,630       100.0 %
Sales taxes     (60,023 )     (0.8 )%     -       -       (60,023 )     (100.0 %)
Total operating revenues, net   $ 7,851,515       100.0 %   $ -       -       7,851,515       100.0 %

 

*

Including $81,390 to related parties

 

(1) Listing service fees: Listing service fees are calculated based on a percentage ranging of the listing value of collectibles and artworks. Listing value is the total offering price of the collectible or an artwork when the ownership units are initially listed on our trading platform. We utilize an appraised value as a basis to determine the appropriate listing value for each piece of collectible or artwork, or portfolio of collectibles or artworks. Listing service fees are recognized ratably over the estimated period of the listing. Our listing fees range from 2.3% to 5.3%, of the initial listing value, the rate is dependent on the type of collectible or artwork and is negotiated on a case by case basis. The average listing period is around three months.

 

Total listing service fees increased by approximately $0.8 million or 100% from nil for the six months ended June 30, 2018 to $769,842 for the same period in 2019. The increase was due to the increasing number of collectibles and artworks listed on our platform as we expanded our operations. For the six months ended June 30, 2019 and 2018, 45 and 0 types of collectibles and artworks were successfully listed on our platforms, respectively.

 

(2) Transaction fee revenue: Transaction fee revenue is generally calculated based on the transaction value of collectibles or artwork per transaction. Transaction value is the dollar amount of the purchase and sale of the ownership units of the collectibles or artwork after it is listed on our platform. We typically charge 0.15% of the transaction value per transaction from both the purchase and sale side of the transaction resulting in an aggregate of 0.3% of total transaction value. Sometimes, we charge a predetermined transaction rate, which is negotiated on a case by case basis, for selected traders with specific large transactions. Transaction fee revenue also includes predetermined monthly transaction fees, which are negotiated case by case for selected traders with high trading volume, and is recognized and earned over the specified service period.

 

Total transaction fee revenue increased by approximately $3.0 million or 100% from nil for the six months ended June 30, 2018 to $2,939,010 for the same period in 2019. The increase was primarily due to the increasing number of traders that participated on the platform as we expanded our operations. We had approximately 61,000 active traders that completed approximately 32.5 million transactions with a total transaction value of approximately $981 million during the six months ended June 30, 2019.

 

(3) Marketing service fees: Marketing service fee revenue is a fee that we charge for promoting and marketing our customers’ collectible or artwork. The services include to assist our customers determining the marketability of their collectibles and/or artwork, including assessing their market value and market acceptance, to provide promotion services for such items as where to place ads on well-known cultural art exchange websites in China, to provide offline marketing services including cooperation with auction houses and participate in industry-related exhibitions and fairs. Marketing service fees are determined by the level of our involvement in promoting such collectibles and/or artwork and our expertise in marketing specific items. Marketing service contracts and fees are negotiated case by case and are amortized based on the service period. Marketing service fees increased by approximately $4.1 million or 100% from nil for the six months ended June 30, 2018 to $4,112,056 for the same period in 2019. The increase was primarily due to the increasing number of collectible or artwork listed on our platform as we expanded our operations. During the six months ended June 30, 2019, 45 types of collectibles and artworks were successfully listed on our platforms, of which we promoted 40 types of collectibles or artworks for our customers.

 

(4) Other revenues: Other revenues primarily includes technological service fee revenue. Technological service fee revenue is negotiated on a case by case basis and is recognized when the related services have been performed based on the specific terms of the contract. Total other revenues increased by approximately $91,000 or 100% from nil for the six months ended June 30, 2018 to $90,630, which consisted of $31,304 from providing technological services to our related parties for the same period in 2019. The increase was primarily due to our business expansion.

 

Cost of Revenues

 

Cost of revenues increased by approximately $0.6 million or 100% from nil for the six months ended June 30, 2018 to $593,510 for the same period in 2019. The increase in cost of revenues was primarily due to the increase in compensation including social welfare and benefits of personnel from our information technology department of approximately $0.1 million, the increase in online cloud service fees of approximately $82,000 and the increase in storage fees of approximately $0.3 million.

 

49

 

 

Gross Profit

 

Gross profit for the six months ended June 30, 2019 and 2018 amounted to $7,258,005 and $(10,100), respectively. Gross profit increased by approximately $7.3 million or 71,961% due to the reasons mentioned above.

 

Selling and Marketing Expenses

 

Selling expenses increased by approximately $48,000, or 100% from nil for the six months ended June 30, 2018 to $48,087 including $23,718 to related party for the same period in 2019. The increase was primarily due to the increase in compensation of personnel from our marketing department. Our ability to attract more traders and increase the product mix traded on our platform has reduced our need to rely on outside marketers to promote our platform.

 

General and Administrative Expenses

 

Our general and administrative expenses increased by approximately $0.9 million, or 4,358% from $20,341 for the six months ended June 30, 2018 to $913,140 for the same period in 2019. The increase in our general and administrative expenses was primarily due to the increase in compensation including social welfare and benefits for our accounting and finance, business development, legal, human resources and other personnel of approximately $0.5 million, the increase in rent expense for our offices of approximately $0.1 million, the increase in depreciation and amortization expense of approximately $75,000, and the increase in other general and administrative expenses such as meals and entertainment and bonus of approximately $0.1 million. We expect our general and administrative expenses, including but not limited to, compensation, rent, depreciation and amortization to continue to increase in the foreseeable future as our business grows further.

 

Other Income (Expense)

 

Total other income increased by approximately $18,000, or 37,545%, from other expenses of $49 for the six months ended June 30, 2018 to other income of 18,348 for the same period in 2019.

 

Provision for Income Taxes

 

Our provision for income taxes amounted to $45,335 and nil for the six months ended June 30, 2019 and 2018, respectively. We had a relatively small amount of provision for income taxes due to our preferential tax rate reduction from our profitable VIEs, which were formed and registered in Kashi in Xinjiang Provence, China. We also have provided 100% allowance on net operating losses from our VIEs which incurred losses.

 

Net Income (Loss)

 

Our net income increased by approximately $6.3 million, or 20,663%, from net loss of $30,490 for the six months ended June 30, 2018 to net income of $6,269,791 for the same period in 2019. Such change was the result of the combination of the changes as discussed above.

 

Foreign Currency Translation Adjustment

 

Changes in foreign currency translation adjustment are mainly due to the fluctuation of foreign exchange rates between RMB and HKD (the functional currency of our operating entities) and the USD dollar reporting currency.

 

Year Ended December 31, 2018

 

    For the year ended December 31,
2018
 
Revenues   $ 5,360,200  
Revenues – related parties     32,065  
Sales taxes     (39,565 )
Cost of revenues     (500,375 )
Gross profit     4,852,325  
Operating expenses     (2,185,177 )
Income from operations     2,667,148  
Other expenses, net     (43,010 )
Income before income taxes     2,624,138  
Provision for income taxes     -  
Net income     2,624,138  
Foreign currency translation adjustment     (89,262 )
Comprehensive income   $ 2,534,876  
         
Number of ordinary shares outstanding – basic and diluted*     17,500,000  
Basic and diluted earnings per share*   $ 0.15  

 

* given retroactive effect to 2-for-1 forward stock split to authorized and issued and outstanding shares as well as the surrender of 12.5% of our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

 

50

 

 

Revenues:

 

The following table sets forth the principal components of our net revenues by amounts and percentages of our net revenues for the periods indicated:

 

    For the year ended
December 31,
2018
    %  
Listing services fees (1)   $ 275,477       5.1 %
Transaction fee (2)     1,262,950       23.6 %
Marketing service fees (3)     3,762,241       70.3 %
Other revenues*     91,597       1.7 %
Sales taxes     (39,565 )     (0.7 )%
Total operating revenues, net   $ 5,352,700       100.0 %

 

* Including $83,369 to related parties

 

(1) Listing service fees: Listing service fees are calculated based on a percentage ranging of the listing value of collectibles and artworks. Listing value is the total offering price of the collectible or an artwork when the ownership units are initially listed on our trading platform. We utilize an appraised value as a basis to determine the appropriate listing value for each piece of collectible or artwork, or portfolio of collectibles or artworks. Listing service fees are recognized ratably over the estimated period of the listing. Our listing fees range from 2.3% to 5.3%, of the initial listing value, the rate is dependent on the type of collectible or artwork and is negotiated on a case by case basis. The average listing period is around three months.

 

Total listing service fees amounted to $275,477 or 5.1% of our operating revenues for the year ended December 31, 2018 due to the increasing number of collectibles and artworks listed on our platform after we commenced operations in March 2018. For the year ended December 31, 2018, 53 types of collectibles and artworks were successfully listed on our platform.

 

(2) Transaction fee revenue: Transaction fee revenue is generally calculated based on the transaction value of collectibles or artwork per transaction. Transaction value is the dollar amount of the purchase and sale of the ownership units of the collectibles or artwork after it is listed on our platform. We typically charge 0.15% of the transaction value per transaction from both the purchase and sale side of the transaction resulting in an aggregate of 0.3% of total transaction value. Sometimes, we charge a predetermined transaction rate, which is negotiated on a case by case basis, for selected traders with specific large transactions. Transaction fee revenue also includes predetermined monthly transaction fees, which are negotiated case by case for selected traders with high trading volume, and is recognized and earned over the specified service period.

 

Total transaction fee revenue amounted to $1,262,950 or 23.6% of our operating revenues primarily due to the increasing number of traders that participated on the platform since we commenced operations. During the year ended December 31, 2018, we had approximately 38,000 active traders that completed approximately 15 million transactions with a total transaction value of approximately $400 million.

 

(3) Marketing service fees: Marketing service fee revenue is a fee that we charge for promoting and marketing our customers’ collectible or artwork. The services include to assist our customers determining the marketability of their collectibles and/or artwork, including assessing their market value and market acceptance, to provide promotion services for such items as where to place ads on well-known cultural art exchange websites in China, to provide offline marketing services including cooperation with auction houses and participate in industry-related exhibitions and fairs. Marketing service fees are determined by the level of our involvement in promoting such collectibles and/or artwork and our expertise in marketing specific items. Marketing service contracts and fees are negotiated case by case and are amortized based on the service period. Total marketing service fees amounted to $3,762,241 or 70.3% of our operating revenues primarily due to the increasing number of collectible or artwork listed on our platform after we commenced operations in March 2018. During the year ended December 31, 2018, we promoted 49 types of collectible or artwork for our customers, of which 43 were successfully listed on our platform as of December 31, 2018.

 

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(4) Other revenues: Other revenues primarily includes technological service fee revenue. Technological service fee revenue is negotiated on a case by case basis and is recognized when the related services have been performed based on the specific terms of the contract. During the year ended December 31, 2018, total other revenues amounted to $91,597, which consisted of $83,369 from providing technological services to our related parties.

 

Cost of Revenues

 

Cost of revenues for the year ended December 31, 2018 amounted to $500,375. Our cost of revenues primarily consisted of compensation including social welfare and benefits of personnel from our information technology department of approximately $0.1 million, online cloud service fees of approximately $0.1 million and storage fees of approximately $0.3 million.

 

Gross Profit

 

Gross profit for the year ended December 31, 2018 amounted to $4,852,325.

 

Selling and Marketing Expenses

 

Selling expenses for the year ended December 31, 2018 amounted to $1,627,488. Our selling expenses primarily consisted of compensation including social welfare and benefits of personnel from our marketing department and fees paid to third party contractors to provide marketing service and to recruit traders for the Company.

 

General and Administrative Expenses

 

Our general and administrative expenses amounted to $557,689 for the year ended December 31, 2018. General and administrative expenses consisted primarily of compensation including social welfare and benefits for our accounting and finance, business development, legal, human resources and other personnel of approximately $0.2 million and rent expense for our offices of approximately $0.2 million. We expect our general and administrative expenses, including but not limited to, compensation and rent to continue to increase in the foreseeable future as our business grows further.

 

Other Income (Expense), Net

 

Total other expenses amounted to $43,010 for the year ended December 31, 2018, which consisted primarily of loss from equity investment of $43,075 in Zhongcang Warehouse Co., Ltd.

 

Provision for Income Taxes

 

Our provision for income taxes amounted to nil for the year ended December 31, 2018 due to our preferential tax rate reduction from our profitable VIEs and we have provided 100% allowance on net operating losses from our VIEs which incurred losses.

 

Net Income

 

Net income for the year ended December 31, 2018 was $2,624,138.

 

Foreign Currency Translation Adjustment

 

Changes in foreign currency translation adjustment are mainly due to the fluctuation of foreign exchange rates between RMB and HKD (the functional currency of our operating entities) and the USD dollar reporting currency.

 

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Liquidity and Capital Resources

 

To date, we have financed our operations primarily through cash flows from operations, additional capital contributions from shareholders and short term advances from related parties.

 

We had net income of approximately $6.3 million for the six months ended June 30, 2019.

 

We had approximately $9.2 million of cash and cash equivalents and approximately $7.8 million of working capital as of June 30, 2019. We believe that our current working capital is sufficient to support our operations for the next twelve months. We have used such funds, and intend to continue to use such funds and the funds we expect to raise in this offering, to grow our business primarily by:

 

investing in information technology infrastructure and proprietary software;
developing new businesses, including our trading service business on the HKDAEx; and
promoting our brand and services; and management and for other general corporate purposes.

 

All of our revenue is denominated in RMB. Under existing PRC foreign exchange regulations, payments of current account items, including profit distributions, interest payments and trade and service-related foreign exchange transactions, can be made in foreign currencies without prior SAFE approval as long as certain routine procedural requirements are fulfilled. Therefore, our PRC subsidiaries are allowed to pay dividends in foreign currencies to us without prior SAFE approval by following certain routine procedural requirements. However, current PRC regulations permit our PRC subsidiaries to pay dividends to us only out of their accumulated profits, if any, determined in accordance with PRC accounting standards and regulations. Our PRC subsidiaries are required to set aside at least 10% of their after-tax profits after making up previous years’ accumulated losses each year, if any, to fund certain reserve funds until the total amount set aside reaches 50% of their registered capital. These reserves are not distributable as cash dividends. Furthermore, capital account transactions, which include foreign direct investment and loans, must be approved by and/or registered with SAFE and its local branches. See “Risk Factors -Risks Relating to Doing Business in China.” We rely on dividends and other distributions on equity paid by our PRC subsidiary to fund any cash and financing requirements we may have, and any limitation on the ability of our PRC subsidiary to make payments to us could have a material adverse effect on our ability to conduct our business.

 

Cash Flows

 

As of June 30, 2019, we had cash and cash equivalents of approximately $9.2 million. The table below sets forth a summary of our cash flows for the period indicated:

 

    For the Six Months Ended
June 30,
2019
    For the Six Months Ended
June 30,
2018
    For the Year Ended December 31,
2018
 
    (Unaudited)     (Unaudited)        
Net cash provided by operating activities   $ 7,548,253     $ 78,343     $ 3,531,709  
Net cash used in investing activities   $ (284,185 )   $ (151,504 )   $ (1,500,533 )
Net cash (used in) provided by financing activities   $ (671,260 )   $ 69,126     $ 77,382  

 

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Operating Activities

 

Net cash provided by operating activities was approximately $7.5 million for the six months ended June 30, 2019 which was attributable primarily to the net income of approximately $6.3 million, the collection of accounts receivables and other receivables and prepaid expenses of approximately $0.7 million and $0.4 million, respectively.

 

Net cash provided by operating activities was approximately $3.5 million for the year ended December 31, 2018 which was attributable primarily to the net income of approximately $2.6 million, the increase in accounts payable to a related party of approximately $0.3 million for storage fees, the increase in deferred revenue of approximately $0.9 million, the increase in other payables and accrued liabilities of approximately $0.4 million, partially offset by the increase in accounts receivable of approximately $1.0 million.

  

Investing Activities

 

Net cash used in investing activities was approximately $0.3 million for the six months ended June 30, 2019, which was primarily attributable to the purchases of office equipment and vehicles of approximately $0.3 million.

 

Net cash used in investing activities was approximately $1.5 million for the year ended December 31, 2018, which was attributable to our equity investment in Zhongcang of approximately $1.0 million, purchases of office equipment and furniture of approximately $0.3 million and purchases of our online collectibles and artwork trading platform and accounting software of approximately $0.2 million.

 

Financing Activities

 

Net cash used in financing activities was approximately $0.7 million for the six months ended June 30, 2019, which was primarily attributable to the increase in deferred offering costs of approximately $0.6 million.

 

Net cash provided by financing activities was approximately $0.1 million for the year ended December 31, 2018, which was attributable to the capital contribution of approximately $0.1 million from our shareholders and advances from our major shareholder, Mr. Kong, on behalf of the Company of approximately $68,000, partially offset by the increase in deferred offering costs of approximately $0.1 million.

 

Contractual Obligations 

 

Our contractual obligations as of June 30, 2019 consisted of approximately $100,000 of lease commitments due within two years. We leased two office premises under non-cancelable operating leases with expiration dates ending in December 2019 and May 2020.

 

Twelve months ending June 30,     Minimum lease
payment
 
2020     $ 99,660  
Total minimum payments required     $ 99,660  

 

Off-Balance Sheet Arrangements

 

We have not entered into any derivative contracts that are indexed to our shares and classified as shareholders’ equity or that are not reflected in our consolidated financial statements. Furthermore, we do not have any retained or contingent interest in assets transferred to an unconsolidated entity that serves as credit, liquidity or market risk support to such entity. We do not have any variable interest in any unconsolidated entity that provides financing, liquidity, market risk or credit support to us or that engages in leasing, hedging or research and development services with us. 

 

Critical Accounting Policies

 

Our management’s discussion and analysis of our financial condition and results of operations are based on our consolidated financial statements that have been prepared in accordance with accounting principles generally accepted in the United States (“U.S. GAAP”). The preparation of these financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements as well as the reported net sales and expenses during the reporting periods. On an ongoing basis, we evaluate our estimates and assumptions. We base our estimates on historical experience and on various other factors that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.

 

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While our significant accounting policies are described in Note 2 to our consolidated financial statements included elsewhere in this prospectus, we believe that the following accounting policies are the most critical to aid you in fully understanding and evaluating our management’s discussion and analysis:

 

Principles of consolidation

 

The consolidated financial statements include the accounts of the Company, its subsidiaries, and VIEs. All intercompany transactions and balances are eliminated upon consolidation.

 

Fair value measurement

 

The accounting standard regarding fair value of financial instruments and related fair value measurements defines financial instruments and requires disclosure of the fair value of financial instruments held by the Company.

 

The accounting standards define fair value, establish a three-level valuation hierarchy for disclosures of fair value measurement and enhance disclosure requirements for fair value measures. The three levels are defined as follow:

 

  Level 1 inputs to the valuation methodology are quoted prices (unadjusted) for identical assets or liabilities in active markets.
  Level 2 inputs to the valuation methodology include quoted prices other than those in Level 1 for similar assets and liabilities in active markets, and inputs that are observable for the assets or liability, either directly or indirectly, for substantially the full term of the financial instruments.
 

Level 3 inputs to the valuation methodology are unobservable and significant to the fair value.

 

The carrying amounts included in current assets and current liabilities are reported in the consolidated balance sheets as approximate fair value because of the short period of time between the origination of such instruments and their expected realization and their current market rates of interest.

 

Revenue recognition

 

The Company is an online provider of artwork e-commerce services, which allows artists and art dealers and owners to access the art trading market with a wider range of artwork investors through our platforms. We currently facilitate trading by individual customers of stamps, coins, and all kinds of artwork and commodities on our online platforms owned by our subsidiaries in Hong Kong.

 

The Company generates revenue from its services in connection with the trading of artwork on its platform, primarily consisting of listing service fees, transaction fees and other revenues collected from traders (the Company’s customers).

 

Revenue is recognized when all of the following have occurred: (i) persuasive evidence of an arrangement exists, (ii) delivery has occurred or services have been rendered, (iii) the price or fees are fixed or determinable, and (iv) the ability to collect is reasonably assured. Revenue is presented in the consolidated statements of income and comprehensive income net of sales taxes.

 

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Listing service fees

 

One-time nonrefundable listing service fees are collected from traders for listing their products on the platform. The Company recognizes listing services fee ratably over the estimated period of the listing. The fees are determined by contracts with the customers as a fixed percentage of the listing price.

 

Transaction fee revenue

 

Transaction fee revenue is generally calculated based on the transaction value of artwork per transaction. Transaction value is the dollar amount of the purchase and sale of the artwork after they are listed on the Company’s platform. Transaction fee revenue is recognized when the transaction is completed.

 

Transaction fee revenue also includes predetermined monthly transaction fees for select traders with large transactions and are negotiated on a case by case basis. Predetermined transaction fees are recognized and earned over the specified service period.

 

Predetermined transaction fees received in advance of the specified service period is recorded as deferred revenue.

 

Marketing service fees

 

Marketing service fees are service fees for promoting and marketing our customers’ artwork. Marketing service fees are determined by contract and are amortized over the service period.

 

Other revenues

 

Other revenues (including $81,390 to related parties) primarily includes other service fees for information technology consulting services. Other revenue is negotiated on a case by case basis and is recognized when the related services have been performed based on the specific terms of the contract.

 

Income taxes

 

Current income taxes are provided for in accordance with the relevant statutory tax laws and regulations. We have only reported PRC income taxes since all our operations are carried out in PRC.

   

We account for income taxes in accordance with U.S. GAAP for income taxes. Under the asset and liability method as required by this accounting standard, the recognition of deferred income tax liabilities and assets for the expected future tax consequences of temporary differences between the income tax basis and financial reporting basis of assets and liabilities. Deferred tax assets are also provided for net operating loss carry forwards which can be utilized to offset taxable income in the future. Provision for income taxes consists of taxes currently due plus deferred taxes.  

 

The charge for taxation is based on the results for the fiscal year as adjusted for items, which are non-assessable or disallowed. It is calculated using tax rates that have been enacted or substantively enacted by the balance sheet date. 

 

Deferred taxes are accounted for using the asset and liability method in respect of temporary differences arising from differences between the carrying amount of assets and liabilities in the unaudited condensed consolidated financial statements and the corresponding tax basis used in the computation of assessable tax profit. In principle, deferred tax liabilities are recognized for all taxable temporary differences. Deferred tax assets are recognized to the extent that it is probable that taxable income will be available against which deductible temporary differences can be utilized. Deferred tax is calculated using tax rates that are expected to apply to the period when the asset is realized or the liability is settled. Deferred tax is charged or credited in the income statement, except when it is related to items credited or charged directly to equity, in which case the deferred tax is also dealt with in equity. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized.

 

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An uncertain tax position is recognized as a benefit only if it is “more likely than not” that the tax position would be sustained in a tax examination, with a tax examination being presumed to occur. The amount recognized is the largest amount of tax benefit that is greater than 50% likely of being realized on examination. For tax positions not meeting the “more likely than not” test, no tax benefit is recorded. Penalties and interest incurred related to underpayment of income tax are classified as income tax expense in the period incurred. No significant penalties or interest relating to income taxes have been incurred for the six months ended June 30, 2019 and 2018. Our income tax return filed for December 31, 2018 is subject to examination by Chinese tax authority.

 

Commitments and contingencies 

 

In the normal course of business, we are subject to contingencies, including legal proceedings and claims arising out of the business that relate to a wide range of matters, such as government investigations and tax matters. We will recognize a liability for such contingency if we determine it is probable that a loss has occurred and a reasonable estimate of the loss can be made. We consider many factors in making these assessments including historical and the specific facts and circumstances of each matter.

 

JOBS Act

 

On April 5, 2012, the JOBS Act was signed into law. The JOBS Act contains provisions that, among other things, relax certain reporting requirements for qualifying public companies. We will qualify as an “emerging growth company” and under the JOBS Act will be allowed to comply with new or revised accounting pronouncements based on the effective date for private (not publicly traded) companies. We are electing to delay the adoption of new or revised accounting standards, and as a result, we may not comply with new or revised accounting standards on the relevant dates on which adoption of such standards is required for non-emerging growth companies. As a result, our financial statements may not be comparable to companies that comply with new or revised accounting pronouncements as of public company effective dates.  

 

Quantitative and Qualitative Disclosures about Market Risks

 

Liquidity risk

 

We are exposed to liquidity risk, which is the risk that we will be unable to provide sufficient capital resources and liquidity to meet our commitments and business needs. Liquidity risk is controlled by the application of financial position analysis and monitoring procedures. When necessary, we will turn to other financial institutions to obtain short-term funding to meet the liquidity shortage.

 

Inflation risk

 

Inflationary factors, such as increases in personnel and overhead costs, could impair our operating results. Although we do not believe that inflation has had a material impact on our financial position or results of operations to date, a high rate of inflation in the future may have an adverse effect on our ability to maintain current levels of gross margin and operating expenses as a percentage of sales revenue if the revenues from our products do not increase with such increased costs.

 

Interest rate risk

 

Our exposure to interest rate risk primarily relates to the interest rate that our deposited cash can earn, on the other hand. Interest-earning instruments carry a degree of interest rate risk. We have not been exposed to material risks due to changes in interest rates. An increase, however, may raise the cost of any debt we incur in the future.

 

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Foreign currency translation and transaction

  

Our operating transactions and assets and liabilities are mainly denominated in RMB. RMB is not freely convertible into foreign currencies for capital account transactions. The value of RMB against the U.S. dollar and other currencies is affected by, among other things, changes in China’s political and economic conditions and China’s foreign exchange policies. To date, we have not entered into any hedging transactions in an effort to reduce our exposure to foreign currency exchange risk.

 

Recently Issued Accounting Pronouncements

 

Pronouncements not yet adopted

 

In May 2014, the Financial Accounting Standards Board (“FASB”) issued ASU No. 2014-09, “Revenue from Contracts with Customers (Topic 606)” (“ASU 2014-09”). ASU 2014-09 requires an entity to recognize the amount of revenue to which it expects to be entitled for the transfer of promised goods or services to customers. ASU 2014-09 will replace most existing revenue recognition guidance in U.S. GAAP when it becomes effective and permits the use of either the retrospective or cumulative effect transition method. The guidance also requires additional disclosure about the nature, amount, timing and uncertainty of revenue and cash flows arising from customer contracts. In August 2015, the FASB issued ASU No. 2015-14, “Deferral of the Effective Date” (“ASU 2015-14”), which defers the effective date for ASU 2014-09 by one year. For public entities, the guidance in ASU 2014-09 was effective for annual reporting periods beginning after December 15, 2017 (including interim reporting periods within those periods), which means it will be effective for the Company’s fiscal year beginning January 1, 2019. In March 2016, the FASB issued ASU No. 2016-08, “Principal versus Agent Considerations (Reporting Revenue versus Net)” (“ASU 2016-08”), which clarifies the implementation guidance on principal versus agent considerations in the new revenue recognition standard. In April 2016, the FASB issued ASU No. 2016-10, “Identifying Performance Obligations and Licensing” (“ASU 2016-10”), which reduces the complexity when applying the guidance for identifying performance obligations and improves the operability and understandability of the license implementation guidance. In May 2016, the FASB issued ASU No. 2016-12 “Narrow-Scope Improvements and Practical Expedients” (“ASU 2016-12”), which amends the guidance on transition, collectability, noncash consideration and the presentation of sales and other similar taxes. In December 2016, the FASB further issued ASU 2016-20, “Technical Corrections and Improvements to Topic 606, Revenue from Contracts with Customers” (“ASU 2016-20”), which makes minor corrections or minor improvements to the Codification that are not expected to have a significant effect on current accounting practice or create a significant administrative cost to most entities. The amendments are intended to address implementation and provide additional practical expedients to reduce the cost and complexity of applying the new revenue standard. These amendments have the same effective date as the new revenue standard. In September 2017, the FASB issued ASU No. 2017-13, which to clarify effective dates that public business entities and other entities were required to adopt ASC Topic 606 for annual reporting. As an “emerging growth company,” or EGC, the Company has elected to take advantage of the extended transition period provided in the Securities Act Section 7(a)(2)(B) for complying with new or revised accounting standards applicable to private companies. The amendments in this ASU are effective for annual reporting periods beginning after December 15, 2018, including interim periods within annual reporting periods beginning after December 15, 2019. The Company is planning to adopt Topic 606 for fiscal year ending December 31, 2019, using the modified retrospective transition method, and is continuing to evaluate the impact our pending adoption of Topic 606 will have on the consolidated financial statements. The Company is in the process of evaluating the new standard against its existing accounting policies, including the timing of revenue recognition and its contracts with customers to determine the effect the guidance will have on its consolidated financial statements and what changes to systems and controls may be warranted.

 

In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842), to increase the transparency and comparability about leases among entities. The new guidance requires lessees to recognize a lease liability and a corresponding lease asset for virtually all lease contracts. It also requires additional disclosures about leasing arrangements. ASU 2016-02 is effective for interim and annual periods beginning after December 15, 2018, and requires a modified retrospective approach to adoption assuming the Company will remain an emerging growth company at that date. Early adoption is permitted. In September 2017, the FASB issued ASU No. 2017-13, which to clarify effective dates that public business entities and other entities were required to adopt ASC Topic 842 for annual reporting. A public business entity that otherwise would not meet the definition of a public business entity except for a requirement to include or the inclusion of its financial statements or financial information in another entity’s filing with the SEC adopting ASC Topic 842 for annual reporting periods beginning after December 15, 2019, and interim reporting periods within annual reporting periods beginning after December 15, 2020. ASU No. 2017-13 also amended that all components of a leveraged lease be recalculated from inception of the lease based on the revised after tax cash flows arising from the change in the tax law, including revised tax rates. The difference between the amounts originally recorded and the recalculated amounts must be included in income of the year in which the tax law is enacted. The Company has not early adopted this update and it will become effective on January 1, 2020. The Company is currently evaluating the impact of this new standard on its consolidated financial statements and related disclosures.

 

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In July 2017, the FASB Issued ASU 2017-11, Earnings Per Share (Topic 260), Distinguishing Liabilities from Equity (Topic 480) and Derivatives and Hedging (Topic 815). The amendments in Part I of the Update change the reclassification analysis of certain equity-lined financial instruments (or embedded features) with down round features. The amendments in Part II of this Update re-characterize the indefinite deferral of certain provisions of Topic 480 that now are presented as pending content in the Codification, to a scope exception. For public business entities, the amendments in Part I of this Update are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. For all other entities, the amendments in Part I of this Update are effective for fiscal years beginning after December 15, 2019, and interim periods within fiscal years beginning after December 15, 2020. Early adoption is permitted for all entities, including adoption in an interim period. If an entity early adopts the amendments in an interim period, any adjustments should be reflected as of the beginning of the fiscal year that includes that interim period. The amendments in Part II of this Update do not require any transition guidance because those amendments do not have an accounting effect. The Company has not early adopted this update and it will become effective on January 1, 2020. The Company does not believe the adoption of this ASU would have a material effect on the Company’s consolidated financial statements.

 

In February 2018, the FASB issued ASU 2018-02, Income Statement—Reporting Comprehensive Income (Topic 220): Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income. The amendments in this Update affect any entity that is required to apply the provisions of Topic 220, Income Statement—Reporting Comprehensive Income, and has items of other comprehensive income for which the related tax effects are presented in other comprehensive income as required by GAAP. The amendments in this Update are effective for all entities for fiscal years beginning after December 15, 2018, and interim periods within those fiscal years. Early adoption of the amendments in this Update is permitted, including adoption in any interim period, (1) for public business entities for reporting periods for which financial statements have not yet been issued and (2) for all other entities for reporting periods for which financial statements have not yet been made available for issuance. The amendments in this Update should be applied either in the period of adoption or retrospectively to each period (or periods) in which the effect of the change in the U.S. federal corporate income tax rate in the Tax Cuts and Jobs Act is recognized. The Company has not early adopted this update and it will become effective on January 1, 2019. The Company does not believe the adoption of this ASU would have a material effect on the Company’s consolidated financial statements.

 

Except as mentioned above, the Company does not believe other recently issued but not yet effective accounting standards, if currently adopted, would have a material effect on the Company’s consolidated balance sheets, statements of income and comprehensive income and statements of cash flows.

 

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OUR INDUSTRY

 

Background

 

China is the world’s second largest economy and its GDP has grown steadily over the last three decades since it opened up in the 1980s. China’s real GDP grew at an average rate of 7.45% from 2011 to 2018 and exceeded 90 trillion yuan for the first time in 2018. Although China’s real GDP growth slowed to 6.6% in 2018, the International Monetary Fund forecasts China’s real GDP growth to be 6.3% and 6.1% in 2019 and 2020, respectively, while the forecast for global economic growth is 3.3% and 3.6% for the same period according to the latest released “World Economic Outlook” in April 2019.

 

According to “2019 China Private Wealth Report” published by China Merchants Bank and Bain & Company, in 2018, the total size of investable assets held by individuals in China reached RMB 190 trillion yuan (approximately $27.74 trillion), and the compound annual growth rate reached 7% from 2016 to 2018. It is estimated that by the end of 2019, the total size of investable assets would reach RMB 200 trillion yuan (approximately $29.20 trillion).

 

In addition, in 2018, the number of high net worth individuals in China with more than RMB10 million yuan (approximately $1.46 million) investable assets reached 1.97 million, and the compound annual growth rate from 2016 to 2018 reached 12%. It is estimated that by the end of 2019, the number of high-net-worth people in China would reach 2.20 million.

 

In 2018, each of the China’s high-net-worth individuals on average held about RMB 30.80 million yuan (approximately $4.5 million) of investable assets and held a total of 61 trillion yuan (approximately $8.91 trillion) of investable assets. By the end of 2019, high-net-worth individuals are estimated to have a portfolio of investable assets of RMB 70 trillion (approximately $10.22 trillion).

 

The rapid accumulation of personal wealth and increased population of affluent individuals in China have stimulated the market demand for investment in collectibles and the art market.

 

Introduction of Collectibles Trading in China

 

China was one of the first countries in the world to use currency, approximately 5,000 years ago. China began using the stamp over 170 years ago. Since ancient times, due to its unique cultural and collection investment attributes, collectibles have had high value and are cultural bridges that communicate beyond international borders.

 

Collectibles can be considered separately, usually referring to post, coins, and magnetic cards. There are many commonalities in the collection and trading of post, coins, and magnetic cards.

 

Post refers to philatelic collections, which comprises 5 categories, including stamps, postage seals, philatelic commodities, philatelic tools, and philatelic collections, based on 5 major categories and subdivided into 28 industry segments. The number of stamps issued determines the price of the stamps of the current year, but for the stamps of previous years, the price will be preserved and even increased year after year due to the historical value carried in it and the scarcity after the gradual withdrawal from the market. This provides an attractive attraction for post collection and investment.

 

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The average circulation volume for new stamps issued by the China Post Group Corporation

in each year from 1990 to 2019

 

 

Source: China Post Group Corporation

 

The coins category covers 8 sub-categories of gold and silver ingots, gold and silver bronze, ancient coins, historical banknotes, historical spending, modern banknotes, modern gold and silver coins, foreign coins, and 28 industry segments.

 

Ordinary commemorative coins were first issued by the People’s Bank of China in 1984. As of the end of 2018, 111 species had been issued. Precious metal commemorative coins, first issued in 1979, now include a total of more than 10 series of more than 2,000 varieties of gold and silver commemorative coins. According to the data of the People’s Bank of China, since 2001, the circulation of precious metal commemorative coins has been on the rise. From 2001 to 2009, the circulation was relatively stable, ranging from 2 to 3 million. In 2010, it rose to 3.37 million, and in the next two years, it almost doubled, reaching 13.83 million in 2012. Subsequently, the circulation remained stable for nearly four years. In 2018, the circulation increased again to 18.42 million.

 

The magnetic cards category is mainly based on various types of cards. Due to the short period during which cards have been generated, the rise of IC cards and magnetic cards is relatively rapid, and the collection value is limited, so the collection of modern cards is relatively low. Based on the Tamura card, magnetic card, barcode card and IC card, it is divided into 11 industry segments.

 

After years of development, the collectibles industry has formed a relatively complete industry division, and because of the long-standing active people in the industry, such as enthusiasts, collectors, and experts, it has promoted the long-term rapid growth of the collectibles industry and the stability of industry value accumulation.

 

The booking and sales channels of collectibles are mainly based on the national outlets of China Post, the People’s Bank of China and China Telecom. These issuers have been working hard to expand sales outlets.

 

For a long time, as a healthy and low-cost cultural activity, philately has flourished. The demand for exchange of collectibles between collectors has gradually become the driving force behind the offline market. People have established relatively standardized fixed-place trading markets in various places. There are more than 100 collectibles trading markets in all parts of the country (centralized offices, with more than 20 postal business locations), in 27 provinces, autonomous regions and municipalities in Beijing, Shanghai, Guangdong, Shanxi, Henan, and other locations. Representative companies are Shanghai Lugong Collectibles Trading Market, founded in 1983, and Beijing Madian collectibles trading market, founded in 1987.

 

Relying on these collectibles markets, nearly 20,000 postal merchants are engaged in collectibles transaction related businesses. In this group, about 100,000 employees constitute the core of the collectibles offline trading market. Since most postal merchants operate on a family basis, detailed transaction data is difficult to obtain. According to the analysis of the scale data statistics and the sampling of business data by the YOUBAO APP, it can be estimated that the national offline collectibles transaction in 2017 was around RMB 100 billion.

 

As a relatively traditional industry, the application of collectibles to information technology is relatively backward. Since 2004, the market has begun to take the form of a forum to provide information services to practitioners. In 2013, with the help of mobile Internet technology, collectibles ushered in a leap-forward transformation, the main event of which was the emergence of a collectibles online trading platform. In 2013-2016, the online transaction market of collectibles increased from an initial 200 million yuan to 3.9 trillion yuan, and the number of listed products increased from the initial single digits to 4,474.

 

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Introduction of Art Trading in China

 

The Chinese art market in the modern sense began with state-owned cultural relics stores, which were dominated by the planned economy in the late 1970s. Compared with the history of several major Western auction houses over 200 years, the 40-year history of the Chinese art market is relatively short-lived. The first batch of auction houses in China appeared in the 1990s, including Duo Yunxuan Auction (1992) and Guardian (1993). These auction houses began to auction in accordance with the laws of the market economy.

 

However, the art market in China has achieved extraordinary growth over a 40-year period, becoming the second largest market in the world. Its two largest local auction houses, Poly Auctions (founded in 2005) and China Guardian (founded in 1993) are now ranked as the third and fourth largest auction houses globally, after Christie’s and Sotheby’s.

 

According to the report of “The Art Market 2019” released by Art Basel and UBS in March 2019, sales in the global art market in 2018 reached $67.4 billion, up 6% year-on-year. This second year of positive growth brought the market to its second-highest level in 10 years, and has advanced sales values 9% over the decade from 2008 to 2018.

 

Sales on the Global Art Market 2008-2018

 

 

Sales in the three largest markets – the US, the UK, and China – accounted for 84% of the global market’s total value in 2018. The US was the largest market worldwide, accounting for 44% of sales by value. The UK regained its position as the second-largest art market (21%), while China was the third largest, with 19%.

 

The Chinese market has seen the most volatile growth of all the major markets over the past decade. The market barely registered in the distribution of global sales in 2000. However, since 2006, when it overtook France as the third-largest art market worldwide, China has been consistently in the top three global markets and is by far the largest market in Asia. After a boom in sales from 2009 to 2011, when other markets were struggling to recover from the fallout from the global financial crisis, China temporarily became the largest global art market, with sales of $19.5 billion. This came to an abrupt halt in 2012, with a sharp contraction in values of 30%, followed by slow and declining sales up to 2016. While the market rebounded in 2017, the dominant auction sector struggled in 2018. Demand was still strong for the highest-quality works, but supply at this level continued to be an issue. Meanwhile, a looming debt crisis and other economic issues dampened demand, leading to a cautious climate for both buyers and sellers. Sales reached $12.9 billion in 2018, a decline of 3% year-on-year. Despite this, Chinese sales have seen the largest advance of any major country over the past 10 years, growing more than 130% between 2008 and 2018.

 

Sales in the Major Art Markets 2008-2018

 

 

 

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Since 2012, the annual turnover of domestic auction houses in mainland China has fluctuated by approximately 30 billion yuan. At present, China’s economic growth rate (about 6%) is still higher than the world average (about 3%).

 

According to a 2019 Art Basel & UBS Report, in 2018, global online art and antiques sales reached an estimated $6 billion, an annual growth rate of 11%, accounting for 9% of global sales. 93% of millennial high-net-worth collectors reported that they had bought from an online platform, compared to a majority of baby boomers who had not bought art online before.

 

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According to “The Art Market in 2017” released by AMMA and ARTPRICE, today, 97% of the 6,300 auction houses worldwide are present on the Internet (versus just 3% in 2005). Mobile Internet is a powerful factor of economic disruption and it is prompting auction operators to modify their traditional business models.

 

As a formal concept, Art Internet appeared in the public eye in 2014. On December 27, 2014, independent scholar Wang Wei officially proposed at the first Art Internet Conference, which led the art industry to formally enter the “Internet +” era. As an important branch of China’s Internet development, Art Internet is essentially an industrial Internet, which mainly includes art media, art society, art e-commerce, and other forms of art and Internet. Art Internet combines the primary, secondary and tertiary markets in the art market.

 

Today, more and more traditional art dealers are aware of the use of the Internet and e-commerce to promote business. Therefore, this business has slowly grown and integrated with traditional intermediary businesses, and thus has penetrated new consumer groups. This makes it easier to form a closed loop of the art market. But in fact, there is an inconspicuous “gap” between the online and traditional markets. That is, the main body of art traded by the two has high and low ends, and the price and circulation are completely different.

 

Comparison of mainstream art trading patterns

 

Mode comparison   Revenue   Core competitiveness   Disadvantage
Collectible and Artwork e-commerce   Transaction fee, membership, marketing promotion, curatorial organization  

Original art collection ability

 

High frequency of transactions

 

Greater Internet influence

  Difficult to enter the high-end art market
Auction   Transaction fee   Quality Assurance  

Extremely dependent on brand

 

Excessive value

 

According to the category of art works, the current domestic e-commerce models can be divided into four main types.

 

Under the first model, an auction is organized by an art auction company to determine the work bottom price, then conduct an online auction. The second model is to provide a trading platform without directly intervening in the trading behavior. Most art e-commerce companies use this method. Under the third model, the artist works with the website, the artist submits the work to the website and sells it online. After the sale, the two sides will share the profit from the sale. Finally, the fourth model is to set up an online gallery to promote the painter through the website, and conduct sales through remote mail order or directly to customers.

 

We expect that in the next few years, especially in the fields of art-related e-commerce services, home services, life services, art education, art appreciation, and art galleries, the importance of art-based forensic systems and art brokerage platforms will greatly increase.

 

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Drivers and Challenges of Online Collectibles and Artwork Trading Market

 

Increasing population of affluent individuals and demand for new investment products

 

The steady increase of per capita disposable income and individual investable assets have stimulated the market demand for personal investment products and services. Moreover, there is a general desire among individual traders to diversify from traditional investment channels, such as stocks, real estate and wealth management products issued by banks, to new investment products, such as trust products, online money market, peer-to-peer lending, crowd funding as well as online collectibles and artwork trading.

 

China’s rapid development of telecommunication infrastructure has increased nationwide internet access and facilitated the popularization of digital mobile devices, which have contributed to the expansion of the Internet user base (“netizens”) population in China.

 

According to China Internet Network Information Center, or CNNIC, as the end of 2018, China had a total netizen population of 829 million and an internet penetration rate of 59.6%. Total mobile internet users increased from approximately 117.60 million in 2008 to approximately 816.98 million in 2018.

 

In addition, the mobile internet users as a percentage of total internet users increased from 39.5% in 2008 to 98.6% in 2018, signaling the expansion of the mobile internet community.

 

The growing netizen population, the advancement of internet technology and the development of third party payment platforms have facilitated the development of e-commerce. As of December 2018, the number of online shopping users in China reached 610 million, with an annual growth rate of 14.4% and is 73.6% of total netizen population.

 

The number of mobile online shopping users reached 592 million, accounting for 72.5% of mobile Internet users, with an annual growth rate of 17.1% in 2018 comparing to 2017. The development of the e-commerce market has accelerated the general public’s acceptance of online collectibles and artwork trading as an online product.

 

More open and international collectibles and artworks markets

 

In 2000, the “Recommendations for the 10th Five-Year Plan for Economic and Social Development” first proposed the development of cultural industries. After 9 years, a cultural industry revitalization plan was issued, marking the rise of China’s cultural industry as a national strategic industry. In 2013, the Third Plenary Session of the 18th CPC Central Committee proposed to establish a sound modern cultural market system, marking the transformation of China’s cultural industry to achieve the development of dynamic mechanisms. The 2017 19th Report further elaborated on the cultural construction of the new era. The construction of “One Belt, One Road” provides an opportunity for our cultural industry to go global. We have a long history and rich cultural resources, and have the infinite charm of cultural diversity. It is our historical mission to spread Chinese culture to all parts of the world and to tell the Chinese story. The development of an international cultural market has enormous potential and space.

 

Challenges

 

China’s macro-economy slowdown

 

China’s year-over-year GDP growth has been levelling out from a double-digit increase to just over 6.0% since 2015. It is expected that the trend will continue over the mid-to-long term, and the International Monetary Fund predicts China’s macro-economy to grow at 6.3% in 2019. The slowdown of economic growth will exert downward pressure on the growth of individual disposable income and the investable asset pool in general. It may also decrease the general public’s willingness to spend or invest due to reduced confidence in future prospects.

 

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Transforming the investment direction of high net worth individuals

 

At present, China’s high net worth individuals are still relatively abundant, and it is believed that funds owned by these individuals have not been invested in the collectibles and art market because they are still in the progressing stage of their investment propensity. A large number of new collectors need to enter the market, and how to develop and encourage these collectors is a long-term project.

 

Selection of listed products

 

Online collectibles and artwork trading competes against other e-commerce products and is thus affected by customers’ evolving product preferences.

 

Even for artwork, according to TEFAF, purchases by older Chinese collectors tends to be stable, and it will be the dominant force in the art market in the next 10 years. Millennial collectors are younger and mostly have a Western educational background, which makes them very sensitive to Western contemporary art and their collection behavior is closer to Western practices. However, in terms of transaction volume, they are less likely to purchase a single piece of work from $10 million to $100 million in the next 3-5 years, and they are typically not interested in ancient Chinese art.

 

We need to face the different preferences of different customers to determine our future products. However, individual customers’ preferences are very difficult to predict.

 

Government strengthening regulation on collectibles and artwork e-commerce trading

 

Due to the relatively short history and lack of regulation in the early stages of the industry, there have been several cases of fraudulent or illegal platforms for online collectibles and artwork trading, resulting in heightened scrutiny and more stringent regulation by the Chinese government. On November 11, 2011, the State Council promulgated Circular 38, and on July 12, 2012, the general office of the State Council further promulgated Circular 37. After the issuance of Circulars 38 and 37, the government has investigated, rectified and closed down many illegal, irregularly operated or fraudulent trading platforms. Moreover, on August 31, 2018, the NPC issued the E-Commerce Law of the People’s Republic of China, effective as of January 1, 2019. These regulations were introduced to protect online customers’’ interests, reduce risks and build up a better regulatory framework for the industry. It also means exchanges and trading service providers like us may receive more scrutiny and oversight.

 

Competition among providers of collectibles and artwork trading services

 

The collectibles and artwork trading market is highly competitive and fragmented for trading service providers. As of June 30, 2019, there were over 20 active trading service providers in Hong Kong. The exchanges compete against each other for members and customers, and they could attract high-quality members with larger customer bases by setting more favorable trading models and rules. The trading service providers select the exchanges they operate on by considering a combination of factors, including the reputation, scale and reliability of the exchanges and the trading model and rules set by the exchanges.

 

The trading service providers compete for customers and trading volumes based on various factors. Since online collectibles and artwork customers often rely on accurate and timely market information and in-depth market analysis to trade, trading service providers that have better technology platforms and stronger research capabilities are able to attract customers with such advantages vis-a-vis their competitors. More importantly, due to the fact that traders often need to link their confidential personal information such as mobile numbers, national ID numbers and bank accounts with their trading accounts, trade service providers that have stronger brand recognition and reputation in the industry are able to develop customers more effectively and efficiently compared with their less well-known competitors.

 

We believe our proprietary technology platform, our focus on premier customers, our comprehensive customer services and strong brand recognition in the industry, will enable us to compete effectively in the fast evolving online collectibles and artwork trading industry in the Hong Kong.

 

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BUSINESS

 

Overview

 

We are an online provider of collectibles and artwork e-commerce services, which allow collectors, artists and art dealers and owners to access a much bigger art trading market where they can engage with a wider range of collectibles or artwork investors than they could likely encounter without our platforms. We currently facilitate trading by individual customers of all kinds of collectibles, artwork and commodities on our leading online platforms owned by our subsidiaries in Hong Kong, namely the China International Assets and Equity of Artworks Exchange Limited and HKDAEx Limited. We commenced our operations in March 2018 and our customer trading volume has been growing rapidly since then. We also provide online and offline integrated marketing, storage and technical maintenance service to our customers in China.

 

On many mainstream e-commerce platforms, cultural products such as arts and crafts flourished and developed rapidly, and art e-commerce is gradually growing. Online trading has become a major trend of the global art trade. As a comprehensive service company with rich cultural and art collection market operations and marketing, we seize current development opportunities and provide online and offline supporting services for domestic and international art e-commerce platforms. We plan to build a complete art business e-commerce service chain to serve the industry.

 

We provide customers of our online platform with comprehensive services, including account opening, art investment education, market information, research, real-time customer support, and artwork warehousing services. Most services are delivered online through our proprietary client software and call center. Our client software provides not only market information and analysis, but also interactive functions including live discussion boards and instant messaging with customer service representatives, which we believe enhances our customers’ engagement. Internally, we legally collect and analyze customer behavior and communications data from our client software, customer relationship management system and the exchanges, which allow us to better understand, attract and serve our customers.

 

We provide industry solutions and related software products, system development and technical support services for our e-commerce platform customers.

 

We strive to minimize conflicts of interest with our customers, which we believe is essential for our long-term success. Under the trading rules of the two exchange platforms we operate on, we do not set, quote or influence the trading prices, and cannot access our customers’ money.

 

Our Strategy

 

We strive to continue building a collectible and artwork trading platform that is highly trusted by customers. To achieve this objective, we plan to implement the following strategies:

 

Strengthen our brand and market position

 

Currently, the online collectibles and artwork trading service market in China is characterized by high growth potential, limited operating history and high fragmentation. Going forward, we believe that individual customers will be gradually attracted to leading service providers with strong brand recognition, good reputation and high standards of customer service, and as a result, market concentration will increase.

 

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To seize this opportunity, we plan to further strengthen our branding efforts so that more people will learn about spot commodity trading, and our services and reputation. We are also committed to becoming a major driving force for higher industry standards in terms of research, services and employee professional qualifications. We believe this will expand the customer base of our industry, as well as strengthen our market leading position.

 

Introduce new collectibles and artwork products;

 

As of June 30, 2019, we mainly provided services for the online trading of 45 types of collectibles and artwork products for a total of 85 products, including stamps, coins, postage seals, collectible cards, paintings, clay teapots, jade sculptures and similar products.

 

We plan to further expand our product offerings to other collectibles and artwork trading products such as calligraphy, sculptures (other than jade), crafts, jewelry, metal ware, ceramics, and antique furniture.

 

We may also seek to diversify from trading-oriented products and to venture into wealth management advisory services in the future.

 

Explore small and mini-account business

 

With the emergence of mobile Internet, we see an opportunity in the mini-account area of the market. These are accounts with minimum deposit requirements as low as RMB10 and sometimes with a cap (e.g., RMB1,000) on total amount invested. With small amounts involved, it can be used as an investor education tool or even entertainment.

 

We believe that our technological capabilities and our understanding of the trading products and target customers accumulated through our existing business position us well to capture this opportunity. We intend to utilize the mobile Internet to acquire a large number of “long-tail” customers with relatively low cost and to provide most services in an automated manner, thus achieving economies of scale. Some of the mini-account customers could upgrade to become our premier customers, hence benefiting our existing business.

 

Selectively explore acquisition opportunities; and

 

We believe that the online collectibles and artwork trading service market in China is still in its early stages of development. As part of our competitive strategy, we may consider acquiring peer firms with distinctive advantages complementary to ours in order to strengthen our market position. Moreover, the broader Internet finance market in China has presented many business opportunities. We will selectively and cautiously explore acquisition opportunities, with a view to diversify and enhance our overall business profile as well as to create synergies and generate financial returns.

 

Continue to attract, cultivate and retain talent.

 

We rely on our management team and employees to serve our customers and implement our growth strategies. Hence, attracting, cultivating and retaining talent has been, and will remain, critical to our success. We plan to continue to attract and retain highly skilled personnel, particularly the technology and research professionals, and further strengthen our corporate culture by continuing to invest in employee training and other professional development programs. We will continue to provide our employees with growth opportunities, performance-based incentives linked to individual contributions and our operational results and other benefits to align employees’ interests with those of our shareholders.

 

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Our Services

 

We provide customers of our online platform with comprehensive services, including the following:

 

Investor Education

 

We believe that investor education is critical in preparing potential customers for online collectibles and artwork trading. We have developed a set of educational programs designed to target customers with a variety of experience levels and investment preferences. Our education programs include basic rules and processes of online collectibles and artwork trading, fundamental analysis methods and technical analysis methods. Most of our educational resources are easily accessible through PC and APP versions of our client software. Certain materials are also available on our websites.

 

Market Information Provision

 

We provide comprehensive market information to our customers, including real-time price quotes, technical indicators, relevant market news and macroeconomic data and news. Market information is accessible by our customers and potential customers through PC and APP versions of our client software and our website.

 

Customer Support

 

We are committed to providing high-quality customer support. Most of our services, including investor education, market information provision and research support services, are accessible through our client software, which we believe provides a positive experience for our customers due to its user-friendliness and easy access. Besides our client software, we have a dedicated team of customer service personnel that handles real-time customer inquiries about our software, market news and research reports, and other questions, via call, text message and online instant message.

 

We request that all our customer representatives conduct customer communications via our communication system that is closely monitored by us.

 

In addition, we receive customer complaints from time to time. To ensure that reasonable complaints made by each customer are adequately addressed and for risk management purposes, we have established a customer complaint department at our customer service center. For a complaint received, our customer compliant officer will first confirm details of the complaint with the customer and then verify the facts with the relevant department. Based on our verification results and our internal policy, we seek to resolve complaints through discussions with the customer. The complaint and our response are recorded in the CRM system, and feedback is also provided to relevant departments. We also report complaints to the compliance department, which will check for noncompliance and advise the relevant department to take rectification measures, if necessary.

 

Technology Infrastructure

 

The client software and the CRM system comprise our core technology infrastructure and enable us to move each key phase of our business operation online.

 

Our Trading Platform

 

Our proprietary platform is an all-electronic trading system, consisting of host computers, client-side terminals and related communication system. Our trading system supports the trading and payment/settlement of collectibles and artworks. It is an electronic platform developed by a third party software development company and customized for us, primarily consisting of a matching system, a transaction monitoring system, an account managing system and a settlement system.

 

Matching is a core function of our trading platform. Our system concludes transactions by matching all the transactions submitted by the traders. Transaction monitoring system is responsible for monitoring the daily transactions in real-time to ensure fairness and accuracy in our trading platform. The settlement system verifies and reconciles daily statistical data with the banks’ transaction system, and completes the registration and settlement (or payment) of collectibles or artwork units once the transaction data is verified.

 

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Through our trading platform, we provide customers with timely and comprehensive market information, investor education programs, simulated trading, research reports, quantitative analysis tools and interactive customer support functions.

 

Our website www.dfwhgroup.com is an essential part of our trading platform.

  

The website is important as it is the gateway to our trading platform. It publishes our membership and trading rules, trading information disclosure, and products introduction, and provides services to traders, such as account management. Traders may open, close and manage their accounts with us on our website. A client-end terminal may be downloaded from our website. Through the terminal, traders may access their account with us and conduct transactions in collectibles or artwork units, such as purchasing and selling and submitting inquiries. Data transmission between the traders and our trading system is encrypted to prevent data leaks.

 

Our trading system hardware platform is hosted on Ali Cloud, our clearing system hardware platform is hosted on Ali Cloud and our disaster recovery system is set up in the China Telecom Nanjing Longjiang IDC room, located in Nanjing, China. The real-time data synchronization functionality which we provide ensures the safety of transaction data.

 

We provide industry solutions and related software products, system development and technical support services for our cooperation e-commerce platform customers.

 

Offering and trading of collectibles and artwork on our platform

 

Offering and trading of collectibles and artwork on our platform involves a number of parties, namely, Original Owners, Offering Agents, and Traders.

 

An Original Owner is the original owner of the collectibles or artwork to be offered and traded on our platform. The Original Owner must have good and marketable title to the collectibles or artwork and have the right to dispose of the collectibles or artwork.

 

An Offering Agent is an entity that is experienced with collectibles or artwork or their investment and has a good reputation. The Offering Agent is engaged by the Original Owner to assist him or her with the offering and trading of collectibles and artwork, such as preparation of listing applications and assigning an investment value, research, organizing promotions and marketing activities, communicating with potential investors, and similar functions. In general, Kashi Longrui will carry out this business.

 

A Trader is anyone who is 18 years or older or any entity that maintains a trading account with us through our electronic trading platform and participates in the trading of collectibles or artwork units. Once a Trader acquires one or more units of collectibles and an artwork, the Trader becomes the owner of that collectibles and artwork.

 

Presently, only residents of the People’s Republic of China are eligible to become a Trader.

 

Additional parties such as insurer, appraisal firm and custodian for collectibles or artworks may be retained in connection with the offering and trading of collectibles or artwork on our system.

 

The Original Owner and the Offering Agent are required to comply with our rules in connection with the offering of collectibles or artwork. If we discover any violation, we will require that they take corrective actions. If the Offering Agent engages in fraudulent activities, such as putting out false or misleading advertisement or disclosure on the collectibles or artwork, it may be barred from participating in any offering for up to two years, in addition to any legal liabilities.

 

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For the main signator to apply for the listing, the process is as follows

 

 

For publicly hosted collectibles and artworks:

 

 

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We strive to minimize conflicts of interest with our customers, which we believe is essential for our long-term success. Under the trading rules of the two exchanges on which we operate, we do not set, quote or influence the trading prices, and cannot access our customers’ money.

 

Main Trading Rules for Individual Customers

 

Traders log in to their own account through the customer platform for trading. The transaction application shall be deemed to be the transaction commission submitted by the dealer to the online platform. Once the transaction is completed, the ownership of the corresponding physical object belongs to the purchaser of the transaction, the physical delivery is completed, and the physical holder can apply for delivery or voluntarily deposit the collection in a cooperative third-party storage company. The applicant for the transaction must fulfill the corresponding obligations and settle with the other party in accordance with the method determined by these rules.

 

We monitor and regulate the conduct of traders on a daily basis through our real-time monitoring system. If there are irregular trading activities that may affect the trading price and volume of collectibles or artwork units, we will seek clarification from the trader(s) by sending inquiries and notices, conducting interviews, and the like. If there is any violation of our trading rules, we may take the following action:

 

issue oral or written warnings;
request that the trader submit a written commitment;
issue a reprimand;
impose a fine;
suspend or limit trading activities; or
revoke the qualifications of the trader.

  

The exchanges have not adopted any deposit-based leveraged trading system. Customers can only use the funds as they are deposited.

 

Sales and Marketing

 

Our marketing activities include promoting our brand to increase recognition, attracting new customers through targeted marketing and promoting our client software, which has a broader reach of users who might become our potential customers.

 

We are currently marketing our electronic trading platform through participation in culture and art exhibitions and internet advertising, both through online and traditional marketing channels.

 

Our online marketing relies mainly on search engine marketing and displaying advertisements on portal websites. We also actively promote our client software through mobile application stores. In addition, we promote our brand and software through our corporate pages on popular interactive social media such as Weibo and Wechat.

 

We promote our brands through other traditional media channels such as by placing advertisements in newspapers and magazines.

 

We focus on investing in cost-effective marketing initiatives and continuously evaluate the effectiveness of various marketing channels to optimize the allocation of our marketing spending.

 

Interested persons who provide their contact information to us become our potential customers. We also promote our client software through various websites and app stores. A guest version of our software is free to download and use. Through simple online registration, people get free access to the user version of our client software and become our potential customers. We do not conduct cold calls. Additionally, we encourage existing traders to introduce new traders.

 

Our customer representatives interact with potential customers regarding online collectibles and artwork trading, our client software and services through call, text message and instant messaging function in our client software. Our representatives begin building relationships with our customers in anticipation that they will open trading accounts with us.

 

A potential customer who opens and activates a trading account with us becomes our customer. We provide more services to customers compared to potential customers, including free usage of the customer version of the client software which has richer features, as well as access to more comprehensive research reports and technical analysis tools.

 

Our Customers

 

Our customers are the Traders and Original Owners. Because we have listed only 49 types of collectibles and artworks so far and we are constantly marketing and increasing our customer base, it is difficult to ascertain if the loss of a single customer, or a few customers, would have a material adverse effect on us. No one customer constitutes in the aggregate 10% or more of our consolidated revenue.

 

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Customers can open trading accounts through the online account creation link on our official websites, International Exchange and HKDAEx. Before the customer can finish opening an account, our websites provide Risks and Warnings, a Market Entry Agreement and Transaction Rules for the customer to review and confirm before they are able to move to the next steps. Chapter 2 of our transaction rules specifies the qualification requirements for the customer to open and activate a trading account, as follows:

 

Article 8 A trader is a person who opens a trading account with the exchange platform and participates in the trades of cultural and art collections.

 

Article 9 Trader’s Qualification

 

1、  Natural person. A natural person who trades cultural and art collections on the exchange platform must provide account opening information (a personal information form, a copy of passport or ID card from mainland China, Hong Kong, Macao or Taiwan) and meet the following requirements:

 

1) Meet the legal age requirement in the jurisdiction where he/she is located, and have the ability and capacity to take full civil responsibility and assume liability;

 

2) Have certain knowledge of the cultural and art collection investment market, and have certain investment experience in the cultural and art collection market;

 

3) Have a deep understanding of the trading model and investment risk of the cultural and art collections with the exchange’s trading platform, and have strong risk identification ability and risk tolerance;

 

4) Have certain internet and computer operation capabilities, abide by relevant laws and regulations, and engage in cultural and art collection trading activities according to relevant laws and regulations; and

 

5) Other conditions as stipulated by the exchange.

 

2、  Institutions. Institutions that conduct cultural and art collection trading must provide various supporting materials (original and photocopy of corporate legal personhood certificate, business license, organization code certificate, tax registration certificate, etc.) and meet the following requirements:

 

1) Must be an enterprise, legal entity or other organization that lawfully operates under laws at home and abroad, and no law, regulatory requirement, or the rules of this exchange platform may prohibit or restrict the investment of such entity;

 

2) Have a deep understanding of the trading model and investment risk of the cultural and art collections with the exchange’s trading platform, and have strong risk identification ability and risk tolerance; and

 

3) Understand the risks of investing in the cultural and art collections, and have completed the internal approval and authorization procedures stipulated by the statutes and / or company charter/bylaws.

 

A potential customer is required to read these rules, and click to confirm that he/she has read such rules before he/she can proceed to the next step of opening an account.

 

Our customer service staff will review each application and all materials submitted to ensure they are complete. Once an application is approved by the customer service manager, the customer will receive notification and obtain a trading account number and initial login password, which are automatically generated by our system.

 

After completion of the account opening process, a customer can link his or her personal bank account to his or her trading deposit account, which is an independent depository account under his/her trading account. We cannot access our customers’ money, but as a comprehensive member, we can monitor their trading activities and account balances in real time through the exchange’s information system. Customers can freely withdraw funds from their accounts so long as the minimum deposit requirements for their trading positions are met. After a trading account is activated, it becomes a “tradable” account and will remain tradable until the account is closed. We define “active” accounts as tradable accounts that have executed at least one trade during a relevant period.

 

We believe that the growth of tradable accounts and active accounts, combined with our strategy to focus on premier customers, has historically contributed to the significant growth of our trading volume.

 

Competition

 

The art e-commerce market is highly competitive and many traditional art galleries and auction houses may provide a platform for collectibles or artwork owners to sell their collections. However, their trading model is substantially different from ours. As of June 30, 2019, there were over 60 active art e-commerce platforms operating nationwide in China. The trading service providers compete with each other for customers and trading volume based on factors including brand, technology, research and customer services.

 

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Differing from our strategy of focuses which also include collectibles such as stamps and coins, which have a broader acceptance among the general public, artwork that is eligible for offering and trading on certain of our competitors’ platforms includes calligraphy, paintings, sculptures, crafts, jade, jewelry, metal ware, ceramics, and antique furniture. As these types of art require more professional appreciation, artwork only platform restricts customer groups.

 

Certain of our competitors that operate stamp and coin online forums use the traditional forum posting model, where customers need to pay membership fees when they register, in order to post, buy and sell products on the forum, and only offer offline delivery. They may not guarantee authenticity of the collectibles or artworks, while all collectibles or artworks sold on our platform have been authoritatively certified by a third-party appraisal company to ensure the quality of our collection.

 

China’s largest online retailer, JD.com listed on NASDAQ in May 2014 and also launched an art e-commerce mall in November 2017.

 

Although some of our competitors may have greater financial resources or larger customer bases than we do, we believe that our proprietary technology platform, our comprehensive customer services and strong brand recognition in the industry, will enable us to compete effectively in the fast evolving art e-commerce trading industry in the PRC.

 

Our Strengths

 

Market leader with strong brand recognition

 

Thanks to our efficient and scalable operating model, we have a track record of becoming a market leader in a relatively short period after we commenced operations on an e-commerce platform.

 

We commenced operations in March 2018 and our customer trading volume reached to approximately $400 million by the end of 2018.

 

As a leading online provider of online collectibles and artwork trading services, we also enjoy strong brand recognition in the industry. We believe that our leading market position and strong brand recognition have reinforced each other, creating a virtuous circle and helping us to succeed in this industry.

 

Proprietary technology enabling efficient operations

 

We acquire and serve our customers mostly online and do not operate physical branches. As such, our proprietary technology infrastructure, client software, CRM system and information security and data analysis capabilities, are critical to our operations. We have invested substantially in research and development.

 

Our client software provides comprehensive trading information and tools, as well as interactive functions such as live discussion boards and instant messaging with customer representatives, which we believe enhance our customers’ engagement. Our CRM system allows us to efficiently manage relationships with customers and potential customers, monitor and supervise customer communications, as well as centrally manage customer information to reduce the risk of leakage or misuse.

 

We collect customer data through our client software and CRM system, as well as from the online platform. We have a dedicated team to analyze these data, which can help us to better allocate marketing budget, identify target customers and provide tailored customer service.

 

We believe this integrated technology infrastructure distinguishes us from our competitors and has helped us to replicate our success on different exchanges. To maintain our technological edge, we will continue to upgrade and optimize our technology based on customer feedback and market developments.

 

Comprehensive and interactive customer services

 

We strive to continuously enhance our customers’ experience through our dedicated services. Thanks to the various customer data accessible through our CRM system, the team is able to provide tailored and informed services to our customers and enhance their experience with us.

 

Customer interactions: We encourage our customers to interact with our customer representatives as well as among themselves through the live discussion boards in our client software, website and social media tools. We believe such interactions enhance our customers’ engagement and experience.

 

Prudent risk management system

 

We have established rigorous risk management policies and practices  as we believe that risk management is crucial to the success of our business. We mainly focus on two types of risks: operational risks and information security risks.

 

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Operational risks: We are exposed to operational risks for various aspects of our business and we have formulated comprehensive internal policies to manage the risks related to four key business processes: marketing, customer development, research publication and customer service. Our compliance department reviews all promotional materials, advertisement, as well as research materials before publication, to avoid disclosure of misleading or inaccurate information. We monitor the interactions between our sales and potential customers, and between our customer representatives and customers, by screening recorded conversations using our automatic speech recognition system and spot checks.

 

Information security risks: We have set up a comprehensive information security system to safeguard our customers’ information and our proprietary data.

 

Experienced management team

 

Our founders and members of our senior management team have significant experience in financial service and information technology industries, and possess valuable know-how in collectibles and artwork trading services. Our core management is able to efficiently manage a team of over 50 employees and keep them coordinated and incentivized.

 

In addition, we have a competent team of core staff covering many critical aspects of our business, including marketing and brand management, risk management, software development and human resources. We also strive to cultivate talents and build a multilevel high-quality talent pool. We have invested a significant amount of resources in training and professional development programs for our employees.

 

Employees

 

As of October 31, 2019 and December 31, 2018, we had a total of 57 and 25 full time employees. The following table sets forth the breakdown of our employees’ functions as of October 31, 2019:

 

Function   Number*     % of Total Employees  
Technology and Research     25       43.86 %
Sales & Marketing     15       26.32 %
General & Administration     17       29.82 %
      57       100 %

 

* excluding the employees of our minority owned subsidiary Zhongcang Warehouse Co., Ltd.

 

As of October 31, 2019, 53 of our employees were based in Nanjing City, China, where our principal executive offices are located, and 4 employee was located in Hong Kong.

 

As required by PRC regulations, we participate in various government statutory employee benefit plans, including social insurance funds, namely a pension contribution plan, a medical insurance plan, an unemployment insurance plan, a work-related injury insurance plan and a maternity insurance plan, and a housing provident fund. We are required under PRC law to make contributions to employee benefit plans at specified percentages of the salaries, bonuses and certain allowances of our employees, up to a maximum amount specified by the local government from time to time. As of the date of this prospectus, we have made adequate employee benefit payments. However, if we were found by the relevant authorities that we failed to make adequate payment, we may be required to make up the contributions for these plans as well as to pay late fees and fines. See “Risk Factors—Risks Related to Doing Business in China—Failure to make adequate contributions to various employee benefit plans as required by PRC regulations may subject us to penalties.”

 

As required by Hong Kong laws and regulations, we contribute to the Mandatory Provident Fund and take out insurance policies for our Hong Kong-based employees.

 

We enter into standard labor and confidentiality agreements with our employees. We believe that we maintain a good working relationship with our employees, and we have not experienced any major labor disputes.

 

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Facilities

 

Our principal executive offices are located in Nanjing, China, where we lease approximately 2,500 square meters of office space. Our leases will expire in 2020. Our leased premises are leased from unrelated third parties and related parties who either have valid titles to the relevant properties or proper authorization from the title holder to sublease the property, save as disclosed in the following table:

 

Particulars of the Incident   Remedial Action

According to the Administration Services Agreement (the “Services Agreement”) dated August 1, 2018 entered into between HKDAEx Limited and HKFAEx Limited, HKFAEx Limited agreed to provide office space and facilities to HKDAEx Limited. The office space for the premises of Unit 909, Level 9, Cyberport 2, 100 Cyberport Road, Hong Kong (the “Premises”) was provided by HKFAEx Limited to HKDAEx Limited pursuant to the Services Agreement. However, according to the Lease (the “Lease”) dated June 27, 2018, entered into between HKFAEx Limited as tenant and Hong Kong Cyberport Management Company Limited as landlord (the “Landlord”) in respect of the Premises, HKFAEx Limited shall not assign or underlet the Premises or any part thereof, nor share or part with the possession or occupation of the Premises or any part thereof and not use or permit to be used the Premises or any part thereof as registered office of any company whether incorporated in or outside Hong Kong except of HKFAEx Limited itself.

 

Neither HKFAEx Limited nor HKDAEx Limited has obtained consent from the Landlord for HKDAEx Limited’s use of the Premises as its office. HKFAEx Limited does not have proper authorization from the title holder to sublease the Premises to HKDAEx Limited.

  As HKFAEx Limited does not have proper authorization from the Landlord to sublease the Premises to HKDAEx Limited, the Landlord shall have the right under the Lease to re-enter the Premises, in which event the Lease may end. As such, HKDAEx Limited is in the process of finding a new place for its office.

 

We believe that we will be able to obtain adequate facilities, principally through leasing, to accommodate our future expansion plans. Currently, we lease the following properties to conduct our business:

 

Property   Lessee   Annual Rent   Termination Date   Purposes/Use
No. 2, Youzishan Road, Dongba Street, Gaochun District   Jiangsu Yanggu   N/A   Nov 1, 2019   Office
Room 501, 14th Floor, Shannxi Building, Kashi Avenue, Kashi, Xinjiang, China   Kashi Longrui   RMB 20,000   July 3, 2019   Office
4th Floor, Block F4, Zi Dong International Creative Park, No 1 Zidong Road, Qixia District,Nanjing, Jiangsu, China   Kashi Longrui   RMB1,080,000   December 31, 2020   Office
Room 1402, Chi Fu Commercial Building, 198-200 Queen’s Road Central, Hong Kong   International Exchange   HK$211,920   July 15, 2020   Office
Unit 909, Level 9, Cyberport 2, 100 Cyberport Road, Cyberport, Hong Kong   HKDAEx Limited   HK$55,000/per month   month to month   Office

 

 

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Intellectual Property

 

We regard our trademarks, domain names, know-how, proprietary technologies and similar intellectual property as critical to our success, and we rely on trademark, trade secret law and confidentiality and invention assignments with our employees and others to protect our proprietary rights.

 

We have one registered trademark in China that we acquired from a third party. This trademark is a graphic trademark with registration No. 5120703. The trademark is currently being transferred to our name. We submitted the transfer documents to the Trademark Office of the State Administration for Industry and Commerce of the PRC on January 29, 2019, and the transfer is completed on July 6, 2019.

 

We have one software copyright registration, and own 6 domain names. The software copyright name is “Managed Warehouse Management System V1.0.”

 

Despite our efforts to protect our proprietary rights, unauthorized parties may attempt to copy or otherwise obtain and use our intellectual property. Monitoring unauthorized use of our intellectual property is difficult and costly, and we cannot be certain that the steps we have taken will prevent misappropriation of our intellectual property. From time to time, we may have to resort to litigation to enforce our intellectual property rights, which could result in substantial costs and diversion of our resources.

 

In addition, third parties may initiate litigation against us alleging infringement of their proprietary rights or declaring their non-infringement of our intellectual property rights. In the event of a successful claim of infringement and our failure or inability to develop non-infringing technology or license the infringed or similar technology on a timely basis, our business could be harmed. Moreover, even if we are able to license the infringed or similar technology, license fees could be substantial and may adversely affect our results of operations.

 

See “Risk Factors—Risks Related to Our Business—We may not be able to prevent others from unauthorized use of our intellectual property, which could harm our business and competitive position.” and “—We may be subject to intellectual property infringement claims, which may be expensive to defend and may disrupt our business and operations.”

 

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Insurance

 

We provide social security insurance including pension insurance, unemployment insurance, work-related injury insurance and medical insurance for our employees. We do not maintain business interruption insurance or general third-party liability insurance, nor do we maintain key-man insurance. We purchased property insurance for artworks in our warehouse on May 28, 2019. To date, we have not suffered any losses to the artworks stored in our warehouse.

 

Legal Proceedings

 

We are currently not a party to any material legal or administrative proceedings. We may from time to time be subject to various legal or administrative claims and proceedings arising in the ordinary course of business. Litigation or any other legal or administrative proceeding, regardless of the outcome, is likely to result in substantial cost and diversion of our resources, including our management’s time and attention.

 

Regulations

 

This section sets forth a summary of the most significant rules and regulations that affect our business activities in China and Hong Kong.

 

PRC Regulations

 

PRC Laws and Regulations relating to Foreign Investment

 

The Draft PRC Foreign Investment Law

 

In January 2015, MOFCOM published a discussion draft of the proposed Foreign Investment Law for public review and comment. The draft law purports to change the existing “case-by-case” approval regime to a “filing or approval” procedure for foreign investments in China. The State Council will determine a list of industry categories that are subject to special administrative measures, which is referred to as a “negative list,” consisting of a list of industry categories where foreign investments are strictly prohibited, or the “prohibited list,” and a list of industry categories where foreign investments are subject to certain restrictions, or the “restricted list.” Foreign investments in business sectors outside of the “negative list” will only be subject to a filing procedure, in contrast to the existing prior approval requirements, whereas foreign investments in any industry categories that are on the “restricted list” must apply for approval from the foreign investment administration authority.

 

The draft for the first time defines a foreign investor not only based on where it is incorporated or organized, but also using the standard of “actual control.” The draft specifically provides that entities established in China but “controlled” by foreign investors will be treated as FIEs. Once an entity is considered to be an FIE, it may be subject to the foreign investment restrictions in the “restricted list” or prohibitions set forth in the “prohibited list.” If an FIE proposes to conduct business in an industry subject to foreign investment restrictions in the “restricted list,” the FIE must go through a market entry clearance by MOFCOM before being established. If an FIE proposes to conduct business in an industry subject to foreign investment prohibitions in the “prohibited list,” it must not engage in the business. However, an FIE that conducts business in an industry that is in the “restricted list,” upon market entry clearance, may apply in writing for being treated as a PRC domestic investment if it is ultimately “controlled” by PRC government authorities and its affiliates and/or PRC citizens. In this connection, “control” is broadly defined in the draft law to cover the following summarized categories: (i) holding 50% or more of the voting rights of the subject entity; (ii) holding less than 50% of the voting rights of the subject entity but having the power to secure at least 50% of the seats on the board or other equivalent decision making bodies, or having the voting power to exert material influence on the board, the shareholders’ meeting or other equivalent decision making bodies; or (iii) having the power to exert decisive influence, via contractual or trust arrangements, over the subject entity’s operations, financial matters or other key aspects of business operations. According to the draft, variable interest entities would also be deemed as FIEs, if they are ultimately “controlled” by foreign investors, and be subject to restrictions on foreign investments. However, the draft law has not taken a position on what actions will be taken with respect to the existing companies with the “variable interest entity” structure, whether or not these companies are controlled by Chinese parties.

 

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The draft emphasizes the security review requirements, whereby all foreign investments that jeopardize or may jeopardize national security must be reviewed and approved in accordance with the security review procedure. In addition, the draft imposes stringent ad hoc and periodic information reporting requirements on foreign investors and the applicable FIEs. Aside from the investment implementation report and investment amendment report that are required at each investment and alteration of investment specifics, an annual report is mandatory, and large foreign investors meeting certain criteria are required to report on a quarterly basis. Any company found to be non-compliant with these information reporting obligations may be subject to fines and/or administrative or criminal liability, and the persons directly responsible may be subject to criminal liability.

 

In December 2018, the Standing Committee of the National People’s Congress published a discussion draft of a new proposed Foreign Investment Law, aiming to replace the major existing laws governing foreign direct investment in China. On January 29, 2019, the discussion draft with slight revisions, or the New Draft Foreign Investment Law, was submitted for review. Pursuant to the New Draft Foreign Investment Law, foreign investments shall be subject to the negative list management system. The “negative list”, which is issued or approved by the State Council, specifies the special management measures for the access of foreign investment in specific areas. If a foreign investor is found to invest in any prohibited industry in the “negative list”, such foreign investor may be required to, among other aspects, suspend its investment activities, dispose of its equity interests or assets in the target companies, and forfeit its income. In addition, if a foreign investor is found to invest in any restricted industry in the “negative list”, the relevant competent department shall require the foreign investor to take the measures to correct itself.

 

However, the New Draft Foreign Investment Law does not mention the “actual control” as regulated in the previous draft and the position to be taken with respect to existing or future companies with the “variable interest entity” structure. On March 15, 2019, the Foreign Investment Law of the People’s Republic of China, or the Final Foreign Investment Law, with slight revision, is finally issued and will become effective on January 1, 2020. Although variable interest entity structures are not included in the Final Foreign Investment Law, it is uncertain whether any interpretation and implementation of the Final Foreign Investment Law or new PRC laws, rules or regulations relating to variable interest entity structures will be adopted or, if adopted, what they would provide.

 

When the Final Foreign Investment Law becomes effective, the trio of existing laws regulating foreign investment in China, namely, the Sino-foreign Equity Joint Venture Enterprise Law, the Sino-foreign Cooperative Joint Venture Enterprise Law and the Wholly Foreign-invested Enterprise Law, together with their implementation rules and ancillary regulations, will be abolished. The FIEs established in accordance with the Sino-foreign Equity Joint Venture Enterprise Law, the Sino-foreign Cooperative Joint Venture Enterprise Law and the Wholly Foreign-invested Enterprise Law before the Final Foreign Investment Law becomes effective, may keep their original organizational forms for five years after the effectiveness of the Final Foreign Investment Law. See “Risk Factors—Risks Related to Doing Business in China—Uncertainties in the interpretation and enforcement of Chinese laws and regulations could limit the legal protections available to us.”

 

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Negative List Relating to Foreign Investment

 

Investment activities in the PRC by foreign investors are principally governed by the Guidance Catalog of Industries for Foreign Investment promulgated and as amended from time to time by MOFCOM and National Development and Reform Commission (the “NDRC”) and MOFCOM. In June 2017, MOFCOM and the NDRC promulgated the Catalog (2017 Revision), which became effective in July 2017 and was amended in June 2018. In June 2018, the Guidance Catalog of Industries for Foreign Investment (2017 Revision) was replaced by the Special Administrative Measures (Negative List) for Foreign Investment Access (2018 Version), or the Negative List. Industries listed in the Negative List are divided into two categories: restricted and prohibited. Industries not listed in the Negative List are generally deemed as constituting a third “permitted” category. Establishment of wholly foreign-owned enterprises is generally allowed in permitted industries. Some restricted industries are limited to equity or contractual joint ventures, while in some cases Chinese partners are required to hold the majority interests in such joint ventures. In addition, restricted category projects are subject to higher-level government approvals. Foreign investors are not allowed to invest in industries in the prohibited category. Industries not listed in the Negative List are generally open to foreign investment unless specifically restricted by other PRC regulations.

 

Though the business we conduct or will conduct through each variable interest entity is not within the category in which foreign investment is currently restricted under the Negative List or other PRC Laws, we expect that in the future Jiangsu Yanggu will engage in marketing survey services for online marketplaces. Marketing survey services are within the category in which foreign investment is restricted pursuant to the Negative List. In addition, we intend to centralize our management and operation in the PRC to avoid being restricted from conducting certain business activities which are important for our current or future business but are currently restricted or might be restricted in the future. As such, we believe the agreements between the WFOE and each variable interest entity are necessary and essential for our business operations. These contractual arrangements with each variable interest entity and its shareholders enable us to exercise effective control over the variable interest entities and hence consolidate their financial results as our VIE.

 

PRC Laws and Regulations relating to Wholly Foreign-owned Enterprises

 

The establishment, operation and management of corporate entities in China are governed by the PRC Company Law, which was promulgated by the Standing Committee of the National People’s Congress on December 29, 1993 and became effective on July 1, 1994. It was last amended on December 28, 2013 and the amendments became effective on March 1, 2014. Under the PRC Company Law, companies are generally classified into two categories, namely, limited liability companies and joint stock limited companies. The PRC Company Law also applies to limited liability companies and joint stock limited companies with foreign investors. Where there are otherwise different provisions in any law on foreign investment, such provisions shall prevail. The Law of the PRC on Wholly Foreign-invested Enterprises was promulgated and became effective on April 12, 1986, and was last amended and became effective on October 1, 2016. The Implementing Regulations of the PRC Law on Foreign-invested Enterprises were promulgated by the State Council on October 28, 1990. They were last amended on February 19, 2014 and the amendments became effective on March 1, 2014. The Provisional Measures on Administration of Filing for Establishment and Change of Foreign Investment Enterprises were promulgated by MOFCOM and became effective on October 8, 2016, and were last amended on July 20, 2017 with immediate effect. The above-mentioned laws form the legal framework for the PRC Government to regulate the WFOEs. These laws and regulations govern the establishment, modification, including changes to registered capital, shareholders, corporate form, merger and split, dissolution and termination of the WFOEs.

 

According to the above regulations, a WFOE should get approval by or filed with MOFCOM before its establishment and operation. Nanjing Rongke Business Consulting Service Co., Ltd. is a WFOE since established, and has filed with the local administration of MOFCOM. Its establishment and operation are in compliance with the above-mentioned laws.

 

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PRC Laws and Regulations Related to Art Trading and Related Service Industry

 

PRC Law relating to Property Rights

 

The Property Right Law of the People’s Republic of China was released on March 16, 2007 and became effective on October 1, 2007. According to the Property Right Law, the creation and transfer of property rights in movable property shall be effective upon delivery. But if the parties have agreed that the transferor may continue to take possession of the property, the property right shall be effective when the agreement takes effect. According to our Trading Rules, the owner of collectibles or artworks shall entrust our cooperative warehousing company to hold and transport the collectibles or artworks sold on our platform. In practice, the winning bidder will receive delivery of the order on our platform after bid closing, and can collect the collectibles or artwork at the cooperative warehousing company by showing the delivery order. The delivery order is treated as the agreement between the owner of the collectibles or artwork and the bid winner to transfer the property rights in the collectibles or artwork. Accordingly, upon the winning bidder’s receipt of the delivery order, the winning bidder owns the property rights of the collectibles or artworks purchased on our platform.

 

PRC Laws and Regulations relating to Trading Exchange

 

According to “Decision Of The State Council On Cleaning Up And Rectifying Various Trading Places And Taking Effective Precautions Against Financial Risks” (“Decision No. 38”) promulgated by the State Council of the PRC on November 11, 2011 and effective on the same day, and “Opinions Of The General Office Of The State Council On The Implementation Of The Clean-Up And Rectification Of Various Trading Venues” (“Opinion No. 37”) promulgated by the General Office of the State Council of the PRC on July 12, 2012 and effective on the same day, any trading places and their branches that violate any of the following provisions shall be cleaned up and rectified. Such parties must not

 

(1) Divide any equity into equal shares for public offering. An “equal share public offering” is when a trading place uses its services and facilities to divide its equity into equal shares and sell them to investors. The relevant provisions of the company law and the securities law shall apply to the public issuance of shares by a joint stock company.

 

(2) Adopt centralized trading. The “centralized trading methods” referred to in this opinion include collective bidding, continuous bidding, electronic matching, anonymous trading, market makers and other trading methods, except for agreement transfers and legal auctions.

 

(3) Continuously list and trade the rights and interests in accordance with standardized trading units. The “standardized trading unit” referred to in this opinion refers to the minimum trading unit set for other equities other than equity, and trading at the minimum trading unit or integer multiples thereof. “Continuous listing transaction” refers to listing and selling the same trading variety within 5 trading days after buying or listing, and buying the same trading variety within 5 trading days after selling.

 

(4) Have a cumulative number of equity holders exceeding 200. Except as otherwise provided for by laws and administrative regulations, the cumulative number of actual holders of any equity shall not exceed 200 during the term of the company’s existence, no matter the link by the way of issuance or transfer.

 

(5) Carry out standardized contract trading by centralized trading. The “standardized contract” referred to in this opinion includes two situations: one is a unified contract established by the trading place with fixed terms other than price, which stipulates the delivery of a certain amount of the subject matter at a certain time and place in the future. The other is a contract made by the exchange that gives the buyer the right to buy or sell the agreed subject matter at a specified price at a certain time in the future.

 

(6) Without the approval of the relevant financial administrative department of the state council, establish either trading places for the trading of financial products such as insurance, credit and gold, or use any other existing trading places for the trading of financial products such as insurance, credit and gold.

 

Additionally, according to “Notice Concerning The Issuance Of Minutes Of The Special Session On The Clean-Up And Rectification Of Stamp And Commemorative Coins Trading Places” promulgated by the Office of the Joint Meeting on August 2, 2017, any stamp and commemorative coins using a stock issuance-like model to trading places mainly trading stamps by a concentrated bidding and “T+0” transaction method should cease to operate, unless they obtain approval from the provincial government and complete the required filing with the Joint Meeting.

 

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Measures Of Jiangsu Province On The Supervision And Administration Of Trading Places (Amendment) (“Jiangsu Trading Places Measures”) released by the Financial Office of Jiangsu Provincial People’s Government (“Jiangsu Financial Office”) on July 24, 2015, according to which, the trading places engaging in rights and interests trading and bulk commodity trading, including the branches established in Jiangsu province with a main exchange located in another province, with the exception of trading places only engaged in physical transactions such as vehicles and real estate, should be subject to the Jiangsu Trading Places Measures. The establishment of trading places with RMB 30,000,000 minimum paid-in capital in Jiangsu shall be approved by the Jiangsu Financial office. The approved trading place must have at least five shareholders, two of which should be legal persons. The largest shareholder should be a legal person contributing not less than 20% of the total registered capital of the approved trading place. The net assets at the end of the previous year of the largest shareholder must not be less than RMB 100 million and the net profit from the most recent three fiscal years should be positive, without unrecoverable loss at the end of the most recent period.

 

Additionally, there is a Notice On Further Strengthening The Supervision Of All Kinds Of Trading Places In The Province, released by Jiangsu Financial Office on July 25, 2016, according to which, the “accredited investor” in any trading place should meet the following criteria and provide assets proof when opening an account:

 

(1) The investor’s the available fund balance at the time of opening an escrow account shall not be less than RMB 500,000; and

 

(2) The market value of the investor’s assets shall not be less than RMB 2 million.

 

Also, all the trading places in Jiangsu must use Jiangsu Exchange Depository and Clearing Co., Ltd. (“JS Clearing”) to register investors and investment information and settle investors’ funds.

 

Regulations on Intellectual Property Rights

 

The PRC has adopted comprehensive legislation governing intellectual property rights, including copyrights, patents, trademarks and domain names.

 

Copyright. Copyright in the PRC, including copyrighted software, is principally protected under the Copyright Law of the PRC promulgated in February 2010 which took effect in April 2010 (the “Copyright Law”), and related rules and regulations. Under the Copyright Law, the term of protection for copyrighted software is 50 years.

 

Patent. The Patent Law of the PRC promulgated in December 2008, which became effective in October 2009, provides for patentable inventions, utility models and designs. An invention or utility model for which patents may be granted shall have novelty, creativity and practical applicability. The State Intellectual Property Office under the State Council is responsible for examining and approving patent applications.

 

Trademark. The Trademark Law of the PRC promulgated in August 2013 which took effect in May 2014 (the “Trademark Law”), and its implementation rules protect registered trademarks. The Trademark Office of National Intellectual Property Administration, PRC, formerly the PRC Trademark Office of the State Administration of Market Regulation is responsible for the registration and administration of trademarks throughout the PRC. The Trademark Law has adopted a “first-to-file” principle with respect to trademark registration.

 

Domain Name. Domain names are protected under the Administrative Measures for the Internet Domain Names of the PRC promulgated by the Ministry of Information and Industry of the PRC effective on December 20, 2004 and the Administrative Measures for Internet Domain Names promulgated by MIIT, effective on November 1, 2017 (the “Domain Name Measures”). MIIT is the major regulatory body responsible for the administration of the PRC internet domain names. The Domain Names Measures has adopted a “first-to-file” principle with respect to the registration of domain names.

 

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PRC Laws and Regulations Relating to Merger and Acquisition

 

The Regulations on Mergers and Acquisitions of Domestic Companies by Foreign Investors, or the M&A Rules, adopted by six PRC regulatory agencies in August 2006 and amended in 2009, requires an overseas special purpose vehicle formed for listing purposes through acquisitions of PRC domestic companies and controlled by PRC companies or individuals to obtain the approval of the China Securities Regulatory Commission, or the CSRC, prior to the listing and trading of such special purpose vehicle’s securities on an overseas stock exchange. In September 2006, the CSRC published a notice on its official website specifying documents and materials required to be submitted to it by a special purpose vehicle seeking CSRC approval of its overseas listings. The application of the M&A Rules remains unclear. Our PRC counsel has advised us based on their understanding of the current PRC laws, rules and regulations that the CSRC’s approval should not be required for the listing and trading of our ordinary shares on NASDAQ in the context of this offering, given that: (i) we established our PRC subsidiary, the WFOE, by means of direct investment rather than by merger with or acquisition of PRC domestic companies; and (ii) no explicit provision in the M&A Rules classifies the respective contractual arrangements between the WFOE, Jiangsu Yanggu and its shareholders as a type of acquisition transaction falling under the M&A Rules.

 

PRC Laws and Regulations Relating to Foreign Exchange

 

General administration of foreign exchange

 

The principal regulation governing foreign currency exchange in the PRC is the Administrative Regulations of the PRC on Foreign Exchange (the “Foreign Exchange Regulations”), which were promulgated on January 29, 1996, became effective on April 1, 1996 and were last amended on August 5, 2008. Under these rules, Renminbi is generally freely convertible for payments of current account items, such as trade- and service-related foreign exchange transactions and dividend payments, but not freely convertible for capital account items, such as capital transfer, direct investment, investment in securities, derivative products or loans unless prior approval by competent authorities for the administration of foreign exchange is obtained. Under the Foreign Exchange Regulations, foreign-invested enterprises in the PRC may purchase foreign exchange without the approval of SAFE to pay dividends by providing certain evidentiary documents, including board resolutions, tax certificates, or for trade- and services-related foreign exchange transactions, by providing commercial documents evidencing such transactions.

 

Circular No. 75, Circular No. 37 and Circular No. 13

 

Circular 37 was released by SAFE on July 4, 2014 and abolished Circular 75 which had been in effect since November 1, 2005. Pursuant to Circular 37, a PRC resident should apply to SAFE for foreign exchange registration of overseas investments before it makes any capital contribution to a special purpose vehicle, or SPV, using his or her legitimate domestic or offshore assets or interests. SPVs are offshore enterprises directly established or indirectly controlled by domestic residents for the purpose of investment and financing by utilizing domestic or offshore assets or interests they legally hold. Following any significant change in a registered offshore SPV, such as capital increase, reduction, equity transfer or swap, consolidation or division involving domestic resident individuals, the domestic individuals shall amend the registration with SAFE. Where an SPV intends to repatriate funds raised after completion of offshore financing to the PRC, it shall comply with relevant PRC regulations on foreign investment and foreign debt management. A foreign-invested enterprise established through return investment shall complete relevant foreign exchange registration formalities in accordance with the prevailing foreign exchange administration regulations on foreign direct investment and truthfully disclose information on the actual controller of its shareholders.

 

If any shareholder who is a PRC resident (as determined by the Circular No. 37) holds any interest in an offshore SPV and fails to fulfil the required foreign exchange registration with the local SAFE branches, the PRC subsidiaries of that offshore SPV may be prohibited from distributing their profits and dividends to their offshore parent company or from carrying out other subsequent cross-border foreign exchange activities. The offshore SPV may also be restricted in its ability to contribute additional capital to its PRC subsidiaries. Where a domestic resident fails to complete relevant foreign exchange registration as required, fails to truthfully disclose information on the actual controller of the enterprise involved in the return investment or otherwise makes false statements, the foreign exchange control authority may order them to take remedial actions, issue a warning, and impose a fine of less than RMB300,000 on an institution or less than RMB50,000 on an individual.

 

Circular 13 was issued by SAFE on February 13, 2015, and became effective on June 1, 2015. Pursuant to Circular 13, a domestic resident who makes a capital contribution to an SPV using his or her legitimate domestic or offshore assets or interests is no longer required to apply to SAFE for foreign exchange registration of his or her overseas investments. Instead, he or she shall register with a bank in the place where the assets or interests of the domestic enterprise in which he or she has interests are located if the domestic resident individually seeks to make a capital contribution to the SPV using his or her legitimate domestic assets or interests; or he or she shall register with a local bank at his or her permanent residence if the domestic resident individually seeks to make a capital contribution to the SPV using his or her legitimate offshore assets or interests.

 

As of the date of this registration statement, the individual shareholders of Jiangsu Yanggu known as Chinese citizens, who also owned our shares, have completed registrations in accordance with Circular 37.

 

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Circular 19 and Circular 16

 

Circular 19 was promulgated by SAFE on March 30, 2015, and became effective on June 1, 2015. According to Circular 19, foreign exchange capital of foreign-invested enterprises shall be granted the benefits of Discretional Foreign Exchange Settlement (“Discretional Foreign Exchange Settlement”). With Discretional Foreign Exchange Settlement, foreign exchange capital in the capital account of a foreign-invested enterprise for which the rights and interests of monetary contribution has been confirmed by the local foreign exchange bureau, or for which book entry registration of monetary contribution has been completed by the bank, can be settled at the bank based on the actual operational needs of the foreign-invested enterprise. The allowed Discretional Foreign Exchange Settlement percentage of the foreign exchange capital of a foreign-invested enterprise has been temporarily set to be 100%. The Renminbi converted from the foreign exchange capital will be kept in a designated account and if a foreign-invested enterprise needs to make any further payment from such account, it will still need to provide supporting documents and to complete the review process with its bank. Furthermore, Circular 19 stipulates that foreign-invested enterprises shall make bona fide use of their capital for their own needs within their business scopes. The capital of a foreign-invested enterprise and the Renminbi if obtained from foreign exchange settlement shall not be used for the following purposes:

 

directly or indirectly used for expenses beyond its business scope or prohibited by relevant laws or regulations;
directly or indirectly used for investment in securities unless otherwise provided by relevant laws or regulations;
directly or indirectly used for entrusted loan in Renminbi (unless within its permitted scope of business), repayment of inter-company loans (including advances by a third party) or repayment of bank loans in Renminbi that have been sub-lent to a third party; and
directly or indirectly used for expenses related to the purchase of real estate that is not for self-use (except for foreign-invested real estate enterprises).

 

Circular 16 was issued by SAFE on June 9, 2016. Pursuant to Circular 16, enterprises registered in the PRC may also convert their foreign debts from foreign currency to Renminbi on a self-discretionary basis. Circular 16 provides an integrated standard for conversion of foreign exchange capital items (including but not limited to foreign currency capital and foreign debts) on a self-discretionary basis applicable to all enterprises registered in the PRC. Circular 16 reiterates the principle that an enterprise’s Renminbi converted from foreign currency denominated capital may not be directly or indirectly used for purposes beyond its business scope or purposes prohibited by PRC laws or regulations, and such converted Renminbi shall not be provided as loans to nonaffiliated entities.

 

Circulars 16 and 19 address foreign direct investments into the PRC, and stipulate the procedures applicable to foreign exchange settlement. If and when proceeds in foreign currency raised in this offering are settled to RMB, our WFOE would be subject to Circular 19 or Circular 16.

 

Dividend distribution

 

The Foreign Investment Enterprise Law, promulgated in 1986 and amended in 2000 and 2016, and the Administrative Rules under the Foreign Investment Enterprise Law, promulgated in 1990 and amended in 2001 and 2014, are the key regulations governing distribution of dividends of foreign-invested enterprises.

 

According to these regulations, a wholly foreign-owned enterprise in China, or a WFOE, may pay dividends only out of its accumulated profits, if any, determined in accordance with PRC accounting standards and regulations. In addition, a WFOE is required to allocate at least 10% of its accumulated after-tax profits each year, if any, to statutory reserve funds unless its reserves have reached 50% of the registered capital of the enterprises. These reserves are not distributable as cash dividends. The proportional ratio for withdrawal of rewards and welfare funds for employees shall be determined at the discretion of the WFOE. Profits of a WFOE shall not be distributed before the losses thereof before the previous accounting years have been made up. Any undistributed profit for the previous accounting years may be distributed together with the distributable profit for the current accounting year.

 

Pursuant to the SAFE’s Circular on Relevant Issues Relating to Domestic Resident’s Investment and Financing and Roundtrip Investment through Special Purpose Vehicles, or SAFE Circular 37, issued and effective on July 4, 2014, and its appendices, PRC residents, including PRC institutions and individuals, must register with local branches of the SAFE in connection with their direct establishment or indirect control of an offshore entity, for the purpose of overseas investment and financing, with such PRC residents’ legally owned assets or equity interest in domestic enterprises or offshore assets or interests, referred to in SAFE Circular 37 as a “special purpose vehicle.” SAFE Circular 37 further requires amendment to the registration in the event of any significant changes with respect to the special purpose vehicle, including but not limited to increases or decreases of capital contributed by PRC individuals, share transfer or exchange, merger, division or other material event.

 

In the event that a PRC shareholder holding interests in a special purpose vehicle fails to fulfill the required SAFE registration, the PRC subsidiaries of that special purpose vehicle may be prohibited from making distributions of profit to the offshore parent and from carrying out subsequent cross-border foreign exchange activities and the special purpose vehicle may be restricted in their ability to contribute additional capital into its PRC subsidiary. And, failure to comply with the various SAFE registration requirements described above could result in liability under PRC law for foreign exchange evasion, including (i) up to 30% of the total amount of foreign exchange remitted overseas and deemed to have been evasive and (ii) in circumstances involving serious violations, a fine of no less than 30% of and up to the total amount of remitted foreign exchange deemed evasive. Furthermore, the persons-in-charge and other persons at our PRC subsidiaries who are held directly liable for the violations may be subject to criminal sanctions. These regulations apply to our direct and indirect shareholders who are PRC residents and may apply to any offshore acquisitions and share transfer that we make in the future if our shares are issued to PRC residents. See “Risk Factors—Risks Related to Doing Business in China—PRC regulations relating to offshore investment activities by PRC residents may limit our PRC subsidiaries’ ability to increase their registered capital or distribute profits to us or otherwise expose us or our PRC resident beneficial owners to liability and penalties under PRC law.”

 

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PRC Laws and Regulations relating to Taxation

 

Enterprise Income Tax

 

The Enterprise Income Tax Law of the People’s Republic of China (the “EIT Law”) was promulgated by the Standing Committee of the National People’s Congress on March 16, 2007 and became effective on January 1, 2008, and was later amended on February 24, 2017. The Implementation Rules of the EIT Law (the “Implementation Rules”) were promulgated by the State Council on December 6, 2007 and became effective on January 1, 2008. According to the EIT Law and the Implementation Rules, enterprises are divided into resident enterprises and non-resident enterprises. Resident enterprises shall pay enterprise income tax on their incomes obtained in and outside the PRC at the rate of 25%. Non-resident enterprises setting up institutions in the PRC shall pay enterprise income tax on the incomes obtained by such institutions in and outside the PRC at the rate of 25%. Non-resident enterprises with no institutions in the PRC, and non-resident enterprises whose incomes having no substantial connection with their institutions in the PRC, shall pay enterprise income tax on their incomes obtained in the PRC at a reduced rate of 10%.

 

The Arrangement between the PRC and Hong Kong Special Administrative Region for the Avoidance of Double Taxation the Prevention of Fiscal Evasion with respect to Taxes on Income (the “Arrangement”) was promulgated by the State Administration of Taxation (“SAT”) on August 21, 2006 and came into effect on December 8, 2006. According to the Arrangement, a company incorporated in Hong Kong will be subject to withholding tax at the lower rate of 5% on dividends it receives from a company incorporated in the PRC if it holds a 25% interest or more in the PRC company. The Notice on the Understanding and Identification of the Beneficial Owners in the Tax Treaty (the “Notice”) was promulgated by SAT and became effective on October 27, 2009. According to the Notice, a beneficial ownership analysis will be used based on a substance-over-form principle to determine whether or not to grant tax treaty benefits.

 

The WFOE and Jiangsun Yanggu are resident enterprises and pay EIT tax at the rate of 25% in PRC. It is more likely than not that the Company and its offshore subsidiary would be treated as a non-resident enterprise for PRC tax purposes. Please see Section of “Taxation - Peoples Republic of China Enterprise Taxation.

 

Value-added Tax

 

The Provisional Regulations on Value-Added Tax of the PRC (the “VAT Regulations”) were promulgated by the State Council on December 13, 1993 and took effect on January 1, 1994, which were last amended on November 19, 2017. The Rules for the Implementation of the Provisional Regulations on Value Added Tax of the PRC (the “Rules”) were promulgated by the Ministry of Finance (“MOF”) on December 25, 1993 and were last amended on October 28, 2011. Pursuant to the VAT Regulations and the Rules, entities or individuals in the PRC engaged in the sale of goods, the provision of processing, repairs and replacement services and the importation of goods are required to pay VAT, on the value added during the course of the sale of goods or provision of services. Unless otherwise specified, the applicable VAT rate for the sale or importation of goods and provision of processing, repair and replacing services is 17%.

 

The SAT and the MOF jointly promulgated the Circular on Comprehensively Promoting the Pilot Program of the Collection of Valued-added Tax in lieu of Business Tax on March 23, 2016, which became effective on 1 May 2016. Pursuant to this new circular, entities and individuals shall pay VAT at a rate of 6% for any taxable activities unless otherwise stipulated.

 

According to the above-regulations, our PRC subsidiaries and consolidated affiliated entities are generally subject to a 6% VAT rate.

 

Dividend Withholding Tax

 

The Enterprise Income Tax Law provides that since January 1, 2008, an income tax rate of 10% will normally be applicable to dividends declared to non-PRC resident investors which do not have an establishment or place of business in the PRC, or which have such establishment or place of business but the relevant income is not effectively connected with the establishment or place of business, to the extent such dividends are derived from sources within the PRC.

 

Pursuant to an Arrangement Between the Mainland of China and the Hong Kong Special Administrative Region for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Incomes (“Double Tax Avoidance Arrangement”) and other applicable PRC laws, if a Hong Kong resident enterprise is determined by the competent PRC tax authority to have satisfied the relevant conditions and requirements under such Double Tax Avoidance Arrangement and other applicable laws, the 10% withholding tax on the dividends the Hong Kong resident enterprise receives from a PRC resident enterprise may be reduced to 5%. However, based on the Circular on Certain Issues with Respect to the Enforcement of Dividend Provisions in Tax Treaties (the “SAT Circular 81”) issued on February 20, 2009 by SAT, if the relevant PRC tax authorities determine, in their discretion, that a company benefits from such reduced income tax rate due to a structure or arrangement that is primarily tax-driven, such PRC tax authorities may adjust the preferential tax treatment.

 

According to the Circular on Several Questions regarding the “Beneficial Owner” in Tax Treaties, which was issued on February 3, 2018 by the SAT and took effect on April 1, 2018, when determining the applicant’s status of the “beneficial owner” regarding tax treatments in connection with dividends, interests or royalties in the tax treaties, several factors, including without limitation, whether the applicant is obligated to pay more than 50% of his or her income in twelve months to residents in third country or region, whether the business operated by the applicant constitutes the actual business activities, and whether the counterparty country or region to the tax treaties does not levy any tax or grant tax exemption on relevant incomes or levy tax at an extremely low rate, will be taken into account, and it will be analyzed according to the actual circumstances of the specific cases. This circular further provides that applicants who intend to prove his or her status of the “beneficial owner” shall submit the relevant documents to the relevant tax bureau according to the Announcement on Issuing the Measures for the Administration of Non-Resident Taxpayers’ Enjoyment of the Treatment under Tax Agreements.

 

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PRC Laws and Regulations relating to Employment and Social Welfare

 

Labor Law of the PRC

 

Pursuant to the Labor Law of the PRC, which was promulgated by the Standing Committee of the NPC on July 5, 1994 with an effective date of January 1, 1995 and was last amended on August 27, 2009 and the Labor Contract Law of the PRC, which was promulgated on June 29, 2007, became effective on January 1, 2008 and was last amended on December 28, 2012, with the amendments coming into effect on July 1, 2013, enterprises and institutions shall ensure the safety and hygiene of a workplace, strictly comply with applicable rules and standards on workplace safety and hygiene in China, and educate employees on such rules and standards.

 

Furthermore, employers and employees shall enter into written employment contracts to establish their employment relationships. Employers are required to inform their employees about their job responsibilities, working conditions, occupational hazards, remuneration and other matters with which the employees may be concerned. Employers shall pay remuneration to employees on time and in full accordance with the commitments set forth in their employment contracts and with the relevant PRC laws and regulations. Jiangsu Yanggu has entered into written employment contracts with all the employees and performed its obligations required under the relevant PRC laws and regulations.

 

Social Insurance and Housing Fund

 

Pursuant to the Social Insurance Law of the PRC, which was promulgated by the Standing Committee of the NPC on October 28, 2010 and became effective on July 1, 2011, employers in the PRC shall provide their employees with welfare schemes covering basic pension insurance, basic medical insurance, unemployment insurance, maternity insurance, and occupational injury insurance.

 

In accordance with the Regulations on Management of Housing Provident Fund, which were promulgated by the State Council on April 3, 1999 and last amended on March 24, 2002, employers must register at the designated administrative centers and open bank accounts for depositing employees’ housing funds. Employer and employee are also required to pay and deposit housing funds, with an amount no less than 5% of the monthly average salary of the employee in the preceding year in full and on time.

 

PRC Laws and Regulations Related to internet information security and privacy protection

 

Cybersecurity Law of the PRC

 

On November 7, 2016, the Standing Committee of the National People’s Congress of the PRC (the “NPC”) promulgated the Cybersecurity Law of the PRC (“Cybersecurity Law”) which became effective on June 1, 2017. Under this law, network operators must provide cybersecurity protection and protect the integrity, confidentiality and availability of network data. The Cybersecurity Law also standardizes the collection and usage of personal information and requires network operators to protect users’ privacy security. If a network operator violates the Cybersecurity Law, it can face various penalties, including but not limited to the suspension of related business, winding up, shutting down its websites, and revocation of its business license, all of which may be imposed by the relevant authority, along with fines up to RMB 1 million (approximately $145,985) if severe damage occurred.

 

Measures for Personal Information Cross-Border Transfer Safety Assessment (Public Draft)

 

On June 13, 2019, the State Internet Information Office of the PRC issued a public comment draft of Private Information Cross-Border Transfer Safety Assessment Measures (“Personal Information Safety Measures (Public Draft)”) which will be enforced by the relevant provincial network information office once it becomes effective. The Personal Information Safety Measures (Public Draft) is formulated in accordance with the Cybersecurity Law and it requires that before the personal information can be transferred out of China, the network operator shall report its request for safety assessment to the provincial network information office, and such office shall complete the safety assessment, typically within 15 working days. A new security assessment shall be carried out every two years, or in the event of a change in purpose of the cross-border transfer of personal information or a change in the type or overseas storage period of such information. Any relevant network information office has the authority to suspend or termination the personal information transfer activities from any network operators, if any of the following situations occur: (i) the network operators or receivers experience a severe data leakage, data abuse and other similar events; (ii) the individuals who provide personal information are unable to protect his/her legitimate rights and interests; or (iii) the network operators or receivers are not capable of protecting personal information safety.

 

Hong Kong Regulations

 

As we provide trading service business in Hong Kong, our business operations are subject to various regulations and rules promulgated by the Hong Kong government. The following is a brief summary of the Hong Kong laws and regulations that currently and materially affect our business. This section does not purport to be a comprehensive summary of all present and proposed regulations and legislation relating to the industries in which we operate.

 

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Hong Kong Laws and Regulations relating to Protection of Personal Data

 

Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong) (“PDPO”), which came into full effect in Hong Kong in 1996 aims to protect the privacy of individuals of their personal data. The PDPO imposes a statutory duty on data users to comply with the requirements of the six data protection principles (the “Data Protection Principles”) contained in Schedule 1 to the PDPO. The PDPO provides that a data user shall not do an act, or engage in a practice, that contravenes a Data Protection Principle unless the act or practice, as the case may be, is required or permitted under the PDPO. The six Data Protection Principles are:

 

Principle 1 — purpose and manner of collection of personal data;
Principle 2 — accuracy and duration of retention of personal data;
Principle 3 — use of personal data;
Principle 4 — security of personal data;
Principle 5 — information to be generally available; and
Principle 6 — access to personal data.

 

Non-compliance with a Data Protection Principle may lead to a complaint to the Privacy Commissioner for Personal Data (the “Privacy Commissioner”). The Privacy Commissioner may serve an enforcement notice to direct the data user to remedy the contravention. A data user who contravenes an enforcement notice commits an offence which may lead to a fine and imprisonment.

 

The PDPO also gives data subjects certain rights, inter alia:

 

the right to be informed by a data user whether the data user holds personal data of which the individual is the data subject;
if the data user holds such data, to be supplied with a copy of such data; and
the right to request correction of any data they consider to be inaccurate.

 

The PDPO criminalizes, including but not limited to, the misuse or inappropriate use of personal data in direct marketing activities, non-compliance with a data access request and the unauthorized disclosure of personal data obtained without the relevant data user’s consent.

 

Hong Kong Laws and Regulations relating to Trade Description

 

Trade Descriptions Ordinance (Chapter 362 of the Laws of Hong Kong) (“TDO”), which came into full effect in Hong Kong on April 1, 1981 aims to prohibit false or misleading trade description and statements to goods and services provided to the customers during or after a commercial transaction. Pursuant to the TDO, any person in the course of any trade or business applies a false trade description to any goods or supply or offers to supply them commits an offence and a person also commits the same offence if he/she is in possession for sale or for any purpose of trade or manufacture of any goods with a false description. The TDO also provides that traders may commit an offence if they engage in a commercial practice that has a misleading omission of material information of the goods, an aggressive commercial practice, involves bait advertising, bait and switch or wrong acceptance of payment.

 

Hong Kong Laws and Regulations relating to Sales of Goods

 

Pursuant to Sale of Goods Ordinance (Chapter 26 of the Laws of Hong Kong) (“SOGO”), which came into full effect in Hong Kong on August 1, 1896, in every contract of sale, there is an implied warranty that the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance not disclosed or known to the buyer before the contract is made and that the buyer will enjoy quiet possession of the goods except so far as it may be disturbed by the owner or other person entitled to the benefit of any charge or encumbrance so disclosed or known. The SOGO provides that there is an implied condition that the goods shall correspond with the description where there is a contract for the sale of goods by description, and there is any implied condition or warranty as to the quality or fitness for any particular purpose of goods supplied under a contract of sale. Where the seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of merchantable quality.

 

Hong Kong Laws and Regulations relating to Supply of Services

 

Pursuant to Supply of Services (Implied Terms) Ordinance (Chapter 457 of the Laws of Hong Kong) (“SSITO”), which came into full effect in Hong Kong on October 21, 1994, in a contact for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill. The SSITO provides that where, under a contract for the supply of a service by a supplier acting in the course of a business, the time for the service to be carried out is not fixed by the contract, is not left to be fixed in a manner agreed by the contract or is not determined by the course of dealing between the parties, there is an implied term that the supplier will carry out the service within a reasonable time.

 

Hong Kong Laws and Regulations relating to Exemption Clauses in a Contract

 

Control of Exemption Clauses Ordinance (Chapter 71 of the Laws of Hong Kong) (“CECO”), which came into full effect in Hong Kong on December 1, 1990 aims to limit the scope where the seller may limit its liability via the terms of the contracts. The CECO provides that unless the concerned terms satisfy the test of reasonableness, a person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract.

 

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Hong Kong Laws and Regulations relating to Import or Export of Endangered Species of Animals and Plants

 

Pursuant to Protection of Endangered Species of Animals and Plants Ordinance (Chapter 586 of the Laws of Hong Kong), which came into full effect in Hong Kong on December 1, 2006, any person who imports, exports or in possession or control of Appendix I species may commit an offence and may be subject to a fine and imprisonment.

 

Hong Kong Laws and Regulations relating to Obscene and Indecent Article

 

Pursuant to Control of Obscene and Indecent Articles Ordinance (Chapter 390 of the Laws of Hong Kong) (“COIAO”), which came into full effect in Hong Kong on September 1, 1987, any person who publishes, possesses for the purpose of publication or imports for the purpose of the publication, any obscene article, whether or not he knows that it is an obscene article, may commit an offence and may be liable for a fine and imprisonment. The COIAO provide that it may be an offence to publish any indecent article without sealing such articles in wrappers and displaying a notice as prescribed by the COIAO. It may also be an offence to publish any indecent article to a person under 18, whether or not it is known that it is an indecent article or that such person is under 18.

 

Hong Kong Laws and Regulations relating to Copyright

 

Copyright Ordinance (Chapter 528 of the Laws of Hong Kong) (“Copyright Ordinance”), which came into full effect in Hong Kong on July 13, 2001 provides comprehensive protection for recognized categories of work including artistic work. The Copyright Ordinance restricts certain acts such as copying and/or issuing or making available copies to the public of a copyright work without the authorization from the copyright owner as it may constitute primary infringement. The Copyright Ordinance provides that a person may also incur liability for secondary infringement if that person possesses, sells, distributes or deals with a copy of a work which is, and which he knows or has reason to believe to be, an infringing copy of work for the purposes of or in the course of any trade or business without the consent of the copyright owner.

 

Hong Kong Laws and Regulations relating to Competition

 

Competition Ordinance (Chapter 619 of the Laws of Hong Kong) (“Competition Ordinance”), which came into full effect in Hong Kong on December 14, 2015 prohibits and deters undertakings in all sectors from adopting anti-competitive conduct which has the object or effect of preventing, restricting or distorting competition in Hong Kong. The key prohibitions include (i) prohibition of agreements between businesses which have the object or effect of preventing, restricting or distorting competition in Hong Kong; and (ii) prohibiting companies with a substantial degree of market power from abusing their power by engaging in conduct that has the object or effect of preventing, restricting or distorting competition in Hong Kong. The penalties for breaches of the Competition Ordinance include, but are not limited to, financial penalties of up to 10% of the total gross revenues obtained in Hong Kong for each year of infringement, up to a maximum of three years in which the contravention occurs.

 

Hong Kong Laws and Regulations relating to Employment

 

Pursuant to Employment Ordinance (Chapter 57 of the Laws of Hong Kong) (“EO”), which came into full effect in Hong Kong on September 27, 1968, all employees covered by the EO are entitled to basic protection under the EO including but not limited to payment of wages, restrictions on wages deductions and the granting of statutory holidays.

 

Pursuant to Mandatory Provident Fund Schemes Ordinance (Chapter 485 of the Laws of Hong Kong) (“MPFSO”), which came into full effect in Hong Kong on December 1, 2000, every employer must take all practicable steps to ensure that the employee becomes a member of a Mandatory Provident Fund (MPF) scheme. An employer who fails to comply with such a requirement may face a fine and imprisonment. The MPFSO provides that an employer who is employing a relevant employee must, for each contribution period, from the employer’s own funds, contribute to the relevant MPF scheme the amount determined in accordance with the MPFSO.

 

Pursuant to Employees’ Compensation Ordinance (Chapter 282 of the Laws of Hong Kong) (“ECO”), which came into full effect in Hong Kong on December 1, 1953, all employers are required to take out insurance policies to cover their liabilities under the ECO and at common law for injuries at work in respect of all their employees. An employer failing to do so may be liable to a fine and imprisonment.

 

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MANAGEMENT

 

Directors and Executive Officers

 

The following table sets forth information regarding our executive officers and directors as of the date of this prospectus.

 

Directors and Executive Officers   Age   Position/Title
Mun Wah Wan   47   Director, Chairman of the board of directors
Lijia Ni   36   Chief Financial Officer
Yi Shao   30   Director, Chief Executive Officer
Y. Tristan Kuo   65   Independent Director 
Xiaobing Liu   57   Independent Director
Longxiang Wang   56   Independent Director

 

Biography

 

Wun Wah (Lewis) Wan

Mr. Wan was appointed a member of our board of directors on April 18, 2019 and Chairman of our board of directors on May 10, 2019. Since February 2007, Mr. Wan has served as Chairman of the board of directors of HKFAEx Group Limited, one of our principal shareholders, which is licensed by the Hong Kong Securities and Futures Commission to carry on the regulated activities of dealing in securities, advising on securities and asset management. Since December 2012, Mr. Wan has served as a Visiting Professor of Beijing University of International Business & Economics. Since February 2013, Mr. Wan has served as Committee Member of Hong Kong Securities and Investment Institute. Since 2008, Mr. Wan has serviced as the Vice President and Chairman of China Investment Committee of the China Hong Kong International Economic Trading Association. From August 2004 to February 2007, Mr. Wan was the Director and Chief Investment Officer of Marco Polo Investments Group Limited. From September 1997 to August 2004, Mr. Wan worked at the Financial Services Division of PricewaterhouseCoopers.

 

Mr. Wan received his Bachelor Degree of Business Administration, majoring in Finance, from the Hong Kong University of Science and Technology in November 1997. Mr. Wan is a senior fellow of the Hong Kong Securities and Investment Institute, a fellow of the Hong Kong Institute of Certified Public Accountants and a fellow of the Association of Chartered Certified Accountants. The Board believes that Mr. Wan’s extensive experience and leadership in the investment, business and corporate management will benefit the Company’s operations and qualifies him to serve as the Chairman of our board of directors.

 

Yi Shao

Mr. Shao was appointed a member of our board of directors on April 18, 2019 and as our Chief Executive Officer on May 10, 2019. Since October 2018 to March, 2019, Mr. Shao served as the General Manager of Jiangsu Yanggu Culture Development Co., Ltd. From October 2017 to September 2018, Mr. Shao served as the deputy general manager of Jiangsu Dahe Live Network Technology Co., Ltd. From October 2015 to October 2017, Mr. Shao worked as a project manager at Nanjing Cultural and Art Property Exchange Limited. From June 2013 to October 2015, Mr. Shao worked as a software developer at Marvell Electronic Technology Co., Ltd. Mr. Shao received his Bachelor Degree of electronic information science and technology from Nanjing University in 2010 and his Master Degree of biomedical engineering from Nanjing University in 2013. The Board believes that Mr. Shao’s extensive experience in art industry, market development and corporate management will benefit the company’s operations and management and make him an important member of the board of directors and its committees.

 

Lijia Ni

Ms. Ni was appointed as our Chief Financial Officer on May 10, 2019. From March 2019 to May 2019, Ms. Ni served as the Financial Controller of Jiangsu Yanggu Culture Development Co., Ltd. From July 2017 to February 2019, Ms. Ni served as General Manager of Jinling Cultural Property Rights Exchange Co., Ltd. and she was the Financial Controller and Assistant to the General Manager of Jinling Cultural Property Rights Exchange Co., Ltd. from July 2015 to June, 2017. From July 2014 to July 2015, Ms. Ni served as the Financial Controller of the Art Business Unit of Dahe Investment Holding Group Co., Ltd., a well-known advertising company in China. From June 2008 to May 2014, Ms. Ni worked as an Audit Manager at Nanjing Branch of KPMG (China) Enterprise Consulting Co., Ltd. and participated in the initial public offerings of A shares and H shares listings in China. Ms. Ni received her Bachelor Degree in accounting from Nanjing University in China in 2005 and her Master’s Degree in accounting from the University of Birmingham, UK in 2007.

 

Longxiang Wang

Mr. Wang was appointed a member of the board of directors on May 10, 2019.  Since December 2016, Mr. Wang has served as Chairman of the board of directors of Jiangsu Oriental Crane Culture Industry Group and Jiangsu Oriental Crane Stamp and Coin Trading Co., Ltd., a consulting and market survey firm for stamp and coin collectibles.   From April, 2015 to December, 2016, Mr. Wang served as Chairman of the board of directors of Jiangsu Oriental Crane Collectibles Co, Ltd. From January, 2015 to March, 2015, Mr. Wang served as General Manager for Beijing Jinma Stamp and Coin Trading Center. Mr. Wang received a certificate from the post-graduation study class of State Taxation Administration Party School in 2009. The Board believes that Mr. Wang’s extensive experience in collectibles industry will benefit the Company’s business and operations and make him a valuable member of the board of directors and its committees.

 

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Y. Tristan Kuo

Mr. Kuo was appointed a member of the board of directors on November 1, 2019.  Since April, 2017, Mr. Kuo has served as Chief Financial Officer of Aerkomm Inc.(EuroNext-Paris: AKOM, OTCQX:AKOM) Since April, 2016, Mr. Kuo has served as Vice President of Investor Relation and Board Secretary of Nutrastar International, Inc. From August, 2015 to April, 2017, Mr. Kuo served as Chief Financial Officer of Success Holding Group International, Inc. From December, 2014 to August, 2015, Mr. Kuo served as Chief Financial Officer and Chief Information Officer of Tatum. From August, 2014 to May, 2015, Mr. Kuo served as a member of board of directors and chairman of the audit committee of KBS Fashion Group Limited (NASDAQ:KBSF). From June, 2012 to November, 2013, Mr. Kuo served as Chief Financial Officer of Crown Bioscience, Inc. Mr. Kuo was the Chief Financial Officer of China Biologic Products (NASDAQ:CBPO) from June, 2008 to May, 2012 and was the Vice President-Finance of China Biologic Products September 2007 to May, 2008. Mr. Kuo received Master of Arts in Accounting from Ohio State University in February,1982 and his Bachelor of Arts in Economics from Soochow University in Taiwan in May, 1977. The Board believes that Mr. Kuo’s expertise and knowledge of accounting and management will benefit the Company’s operations and make him a valuable member of the board of directors and its committees.

 

Xiaobing Liu

Mr. Liu was appointed a member of the board of directors on May 10, 2019.  Since April, 2006, Mr. Liu has been a professor at Nanjing Tech University School of Law. Since September, 2012, Mr. Liu has served as an independent director of the board of Nanjing Baotai Special Materials Co., Ltd. Since May, 2016, Mr. Liu has served as an independent director of the board of GPRO Titanium Industry Co., Ltd. Mr. Liu received his Bachelor of Law degree from East China University of Political Science and Law (“ECUPL”) in 1983 and his Master’s Degree of Legal History from ECUPL in 1986. Mr. Liu received his Doctor’s Degree of Constitution and Administrative Laws from Wuhan University in 2007. Mr. Liu holds a public company independent director qualification certificate from Shanghai Stock Exchange since November 2011. The Board believes that Mr. Liu’s legal expertise and knowledge will benefit the Company’s business and operations and make him a valuable member of the board of directors and its committees.

 

Employment Agreements, Director Agreements and Indemnification Agreements

 

We have entered into employment agreements with each of our executive officers. Under these agreements, each of our executive officers is employed for an initial term of one year and is renewable upon mutual agreement of the Company and the executive officer.

 

The executive officers are entitled to a fixed salary and to participate in our equity incentive plans, if any and other company benefits, each as determined by the board of directors from time to time.

 

We may terminate the executive officer’s employment for cause, at any time, without notice or remuneration, for certain acts, such as conviction or plea of guilty to a felony or grossly negligent or dishonest acts to our detriment, or material breach of any term of any employment or other services, confidentiality, intellectual property or non-competition agreements with the Company. In such case, the executive officer will solely be entitled to accrued and unpaid salary through the effective date of such termination, and his/her right to all other benefits will terminate, except as required by any applicable law. The executive officer is not entitled to severance payments upon any termination.

 

The executive officer may voluntarily terminate his/her employment for any reason and such termination shall take effect 30 days after the receipt by Company of the notice of termination. Upon the effective date of such termination, the executive officer shall be entitled to (a) accrued and unpaid salary and vacation through such termination date; and (b) all other compensation and benefits that were vested through such termination date.  In the event the executive officer is terminated without notice, it shall be deemed a termination by the Company for cause.

 

Each of our executive officers has agreed not to use for his/her personal purposes nor divulge, furnish, or make accessible to anyone or use in any way (other than in the ordinary course of the business of the Company) any confidential or secret information or knowledge of the Company, whether developed by him/herself or by others.

 

In addition, each executive officer has agreed to be bound by non-competition restrictions during the term of his or her employment and for six months following the last date of employment.

 

Each executive officer also has agreed not to (i) solicit or induce, on his/her own behalf or on behalf of any other person or entity, any employee of the Company or any of its affiliates to leave the employ of the Company or any of its affiliates; or (ii) solicit or induce, on his/her own behalf or on behalf of any other person or entity, any customer or prospective customer of the Company or any of their respective affiliates to reduce its business with the Company or any of its affiliates.

 

During the fiscal year ended December 31, 2018, we paid an aggregate of approximately RMB420,000 ($64,615) in cash to our executive officers. We have not set aside or accrued any amount to provide pension, retirement or other similar benefits to our executive officers and directors. Our Hong Kong subsidiaries are required by law to make contributions equal to certain percentages of each employee’s salary for his or her mandatory provident fund. Our PRC subsidiary and our variable interest entity are required by law to make contributions equal to certain percentages of each employee’s salary for his or her pension insurance, medical insurance, unemployment insurance and other statutory benefits and a housing provident fund.

 

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We have also entered into director agreements with each of our directors which agreements set forth the terms and provisions of their engagement.

 

In addition, we have entered into indemnification agreements with each of our directors and executive officers that provide such persons with additional indemnification beyond that provided in our current memorandum and articles of association.

 

Compensation of Directors and Executive Officers

 

Name     Cash Compensation Per Month     Position/Title
Mun Wah Wan     RMB60,000     Chairman of the board of directors
Lijia Ni     RMB24,000     Chief Financial Officer
Yi Shao     RMB11,000     Director, Chief Executive Officer
Y. Tristan Kuo     $2,085      Independent Director
Xiaobing Liu     RMB10,000     Independent Director
Longxiang Wang     RMB10,000     Independent Director

 

Board of Directors and Committees

 

Our board of directors currently only consists of 5 directors. We have established an audit committee, a compensation committee and a corporate governance and nominating committee. Each of the committees of the board of directors has the composition and responsibilities described below.

 

Audit Committee

 

Y. Tristan Kuo, Xiaobing Liu and Longxiang Wang are the members of our Audit Committee, for which Y. Tristan Kuo serves as the chairman. All members of our Audit Committee satisfy the independence standards promulgated by the SEC and by NASDAQ as such standards apply specifically to members of audit committees.

 

We have adopted and approved a charter for the Audit Committee. In accordance with our Audit Committee Charter, our Audit Committee shall perform several functions, including:

 

evaluates the independence and performance of, and assesses the qualifications of, our independent auditor, and engages such independent auditor;
approves the plan and fees for the annual audit, quarterly reviews, tax and other audit-related services, and approves in advance any non-audit service to be provided by the independent auditor;
monitors the independence of the independent auditor and the rotation of partners of the independent auditor on our engagement team as required by law;
reviews the financial statements to be included in our Annual Report on Form 20-F and Current Reports on Form 6-K and reviews with management and the independent auditors the results of the annual audit and reviews of our quarterly financial statements;
oversees all aspects our systems of internal accounting control and corporate governance functions on behalf of the board;
reviews and approves in advance any proposed related-party transactions and report to the full Board on any approved transactions; and
provides oversight assistance in connection with legal, ethical and risk management compliance programs established by management and the board of directors, including Sarbanes-Oxley Act implementation, and makes recommendations to the board of directors regarding corporate governance issues and policy decisions.

 

Our board of directors has determined that Y. Tristan Kuo possesses accounting or related financial management experience that qualifies him as an “audit committee financial expert” as defined by the rules and regulations of the SEC. 

  

Compensation Committee

 

Y. Tristan Kuo, Xiaobing Liu and Longxiang Wang are the members of our Compensation Committee and Longxiang Wang serves as the chairman.  All members of our Compensation Committee are qualified as independent under the current definition promulgated by NASDAQ. We have adopted a charter for the Compensation Committee. In accordance with the Compensation Committee’s Charter, the Compensation Committee is responsible for overseeing and making recommendations to the board of directors regarding the salaries and other compensation of our executive officers and general employees and providing assistance and recommendations with respect to our compensation policies and practices. The compensation committee is responsible for, among other things:

 

  To approve compensation principles that apply generally to Company employees;
  To make recommendations to the board of directors with respect to incentive compensation plans and equity based plans taking into account the results of the most recent rules to provide the shareholders with an advisory vote on executive compensation, generally known as “Say on Pay Votes” (Section 951 in The Dodd-Frank Wall Street Reform and Consumer Protection Act), if any;
  To administer and otherwise exercise the various authorities prescribed for the Committee by the Company’s incentive compensation plans and equity-based plans;
  To select a peer group of companies against which to benchmark/compare the Company’s compensation systems for principal officers elected by the board of directors;
  To annually review the Company’s compensation policies and practices and assess whether such policies and practices are reasonably likely to have a material adverse effect on the Company;
  To determine and oversee stock ownership guidelines and stock option holding requirements, including periodic review of compliance by principal officers and members of the board of directors;

  

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Nominating and Corporate Governance Committee

 

Y. Tristan Kuo, Xiaobing Liu and Longxiang Wang are the members of our Nominating and Corporate Governance Committee and Xiaobing Liu serves as the chairman.  All members of our Nominating and Corporate Governance Committee are qualified as independent under the current definition promulgated by NASDAQ. We have adopted a charter for the Nominating and Corporate Governance Committee. In accordance with its charter, the Nominating and Corporate Governance Committee is responsible for identifying and proposing new potential director nominees to the board of directors for consideration and reviewing our corporate governance policies. The Corporate Governance and Nominating is responsible for, among other things:

 

  Identify and screen individuals qualified to become Board members consistent with the criteria approved by the board of directors, and recommend to the board of directors director nominees for election at the next annual or special meeting of shareholders at which directors are to be elected or to fill any vacancies or newly created directorships that may occur between such meetings;
  Recommend directors for appointment to Board committees;
  Make recommendations to the board of directors as to determinations of director independence;
  Oversee the evaluation of the board of directors;
  Make recommendations to the board of directors as to compensation for the Company’s directors; and
  Review and recommend to the board of directors the Corporate Governance Guidelines and Code of Business Conduct and Ethics for the Company

 

Director Independence

 

Our board of directors reviewed the materiality of any relationship that each of our proposed directors has with us, either directly or indirectly. Based on this review, it is determined that Y. Tristan Kuo, Xiaobing Liu and Longxiang Wang are the “independent directors” as defined by NASDAQ. 

 

Code of Ethics

 

We have adopted a code of ethics that applies to all of our executive officers, directors and employees. The code of ethics codifies the business and ethical principles that govern all aspects of our business.

 

Family Relationships

 

There is no family relationship among any of our directors or executive officers.

 

Duties of Directors

 

Under Cayman Islands law, our directors have a duty of loyalty to act honestly in good faith with a view to our best interests. Our directors also have a duty to exercise the skill they actually possess and such care and diligence that a reasonably prudent person would exercise in comparable circumstances. In fulfilling their duty of care to us, our directors must ensure compliance with our current memorandum and articles of association as amended and restated from time to time, and the class rights vested thereunder in the holders of the shares. A shareholder may in certain circumstances have rights to damages if a duty owed by the directors is breached. Our board of directors has all the powers necessary for managing, and for directing and supervising, our business affairs. The functions and powers of our board of directors include, among others:

 

convening shareholders’ annual and extraordinary general meetings;
declaring dividends and distributions;
appointing officers and determining the term of office of the officers;
exercising the borrowing powers of our company and mortgaging the property of our company; and
approving the transfer of shares in our company, including the registration of such shares in our share register.

 

Our company has the right to seek damages if a duty owed by our directors is breached. A shareholder may in certain limited exceptional circumstances have the right to seek damages in our name if a duty owed by our directors is breached. You should refer to “Description of Share Capital—Differences in Corporate Law” for additional information on our standard of corporate governance under Cayman Islands law.

 

Terms of Directors and Officers  

 

Our officers are elected by and serve at the discretion of the board of directors and the shareholders voting by ordinary resolution. Our directors are not subject to a set term of office and hold office until the next general meeting called for the election of directors and until their successor is duly elected or such time as they die, resign or are removed from office by a shareholders’ ordinary resolution or the unanimous written resolution of all shareholders.  A director will be removed from office automatically if, among other things, the director becomes bankrupt or makes any arrangement or composition with his creditors generally or is found to be or becomes of unsound mind.

 

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PRINCIPAL SHAREHOLDERS

 

The following table sets forth information regarding the beneficial ownership of our ordinary shares as of the date of this prospectus by our officers, directors, and 5% or greater beneficial owners of ordinary shares. There is no other person or group of affiliated persons known by us to beneficially own more than 5% of our ordinary shares.

 

We have determined beneficial ownership in accordance with the rules of the SEC. These rules generally attribute beneficial ownership of securities to persons who possess sole or shared voting power or investment power with respect to those securities. The person is also deemed to be a beneficial owner of any security of which that person has a right to acquire beneficial ownership within 60 days. Unless otherwise indicated, the person identified in this table has sole voting and investment power with respect to all shares shown as beneficially owned by him, subject to applicable community property laws.

 

Except as otherwise indicated in the table below, addresses of our directors, executive officers and named beneficial owners are in care of Oriental Culture Holding LTD, No. 2, Youzishan Road, Dongba Street, Gaochun District, Nanjing, Jiangsu Province, People’s Republic of China. Our telephone number at this address is (86) 25 85766891.

 

    Ordinary
Shares Beneficially
Owned Prior to This
Offering
    Ordinary
Shares Beneficially
Owned After This
Offering
 
Name of Beneficial Owners   Number     %     Number     %  
Directors and Executive Officers:                        
Mun Wah Wan (1)     5,425,000       25.00       5,425,000       22.42  
Lijia Ni (2)     525,000       2.42       525,000       2.17  
Yi Shao (3)     1,225,000       5.65       1.225,000       5.06  
Y. Tristan Kuo     -       -       -       -  
Xiaobing Liu     -       -       -       -  
Longxiang Wang     -       -       -       -  
5% or Greater Shareholders:                                
HKFAEx Group Limited(1)     5,425,000       25.00       5,425,000       22.42  
Oriental Culture Investment Development LTD (4)     3,500,000       16.13       3,500,000       14.46  
Oriental Culture Investment Communication LTD(5)     3,500,000       16.13       3,500,000       14.46  
Oriental Culture Investment Diffusion LTD (3)     1,225,000       5.65       1,225,000       5.06  
All directors and executive officers as a group (six individuals)     7,175,000       33.07       7,175,000       29.65  

 

(1) Mun Wah Wan, Chairman of our board of directors, is the sole shareholder and director of HKFAEx Group Limited, a Hong Kong corporation, and holds the voting and dispositive power over the ordinary shares held by it. The registered address of HKFAEx Group Limited is Unit 909, Level 9, Cyberport 2, Hong Kong.
(2) Lijia Ni is the sole shareholder and director of Oriental Culture Investment Arts LTD, a British Virgin Islands company, and holds the voting and dispositive power over the ordinary shares held by it. The registered address of Oriental Culture Investment Arts LTD is situated at offices of Sertus Incorporations (BVI) Limited, Sertus Chambers, P.O. Box 905, Quastisky Building, Road Town, Tortola, British Virgin Islands.
(3) Yi Shao is the shareholder and director of Oriental Culture Investment Diffusion LTD, a British Virgin Islands company, and holds the voting and dispositive power over the ordinary shares held by it. The registered address of Oriental Culture Investment Diffusion LTD is situated at offices of Sertus Incorporations (BVI) Limited, Sertus Chambers, P.O. Box 905, Quastisky Building, Road Town, Tortola, British Virgin Islands.
(4) Aimin Kong is the sole shareholder and director of Oriental Culture Investment Development LTD, a British Virgin Islands company, and holds the voting and dispositive power over the ordinary shares held by it. The registered address of Oriental Culture Investment Development LTD is situated at offices of Sertus Incorporations (BVI) Limited, Sertus Chambers, P.O. Box 905, Quastisky Building, Road Town, Tortola, British Virgin Islands.
(5) Huajun Gao is the sole shareholder and director of Oriental Culture Investment Communication LTD, a British Virgin Islands company, and holds the voting and dispositive power over the ordinary shares held by it. The registered address of Oriental Culture Investment Communication LTD is situated at offices of Sertus Incorporations (BVI) Limited, Sertus Chambers, P.O. Box 905, Quastisky Building, Road Town, Tortola, British Virgin Islands.

 

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RELATED PARTY TRANSACTIONS

 

Variable Interest Entity Arrangements

 

See “Corporate History and Structure—Variable Interest Entity Arrangements.”

 

Employment Agreements, Director Agreements and Indemnification Agreements

 

See “Management—Employment Agreements, Director Agreements and Indemnification Agreements.”

 

a. Revenues – related parties consist of the following:

 

    Relationship   Nature   For the Six Months Ended
June 30,
2019
    For the Six Months Ended
June 30,
2018
    For the Year Ended December 31,
2018
 
            (Unaudited)     (Unaudited)        
Nanjing Culture and Artwork Property Exchange Co., Ltd.   Our 16.13% beneficial owner, Huajun Gao, is the legal representative   Technological service fee revenue   $ 10,435     $           -     $ 10,689  
Jinling Cultural Property Rights Exchange Co., Ltd.   Owned by our 16.13% beneficial owner, Huajun Gao, and 4.03% beneficial owner, Yin Lu   Technological service fee revenue     10,435       -       10,688  
Hunan Huaqiang Art Trade Center Co., Ltd.   49% owned by Jinling Cultural Property Exchange Co., Ltd.   Technological service fee revenue     10,434       -       10,688  
Nanjing Jinwang Art Purchase E-commerce Co., Ltd.   Our 2.42% beneficial owner, Hongxia Wang, is the legal representative and executive director   Technological service fee revenue     50,086       -       51,304  
Total           $ 81,390     $ -     $ 83,369  

 

b. Accounts receivable – related parties receivables resulted from technological service fee revenue in (a), which consist of the following:

 

    Relationship   June 30,
2019
    December 31,
2018
 
        (Unaudited)        
Hunan Huaqiang Artwork Trading Center Co., Ltd.   49% owned by Jinling Cultural Property Exchange Co., Ltd.   $ 12,728     $ 1,817  
Nanjing Culture and Artwork Property Exchange Co., Ltd.   Our 16.3% beneficial owner, Huajun Gao, is the legal representative     21,819       10,904  
Jinling Cultural Property Exchange Co., Ltd.   Owned by our 16.3% beneficial owner, Huajun Gao, and 4.03% beneficial owner, Yin Lu     10,910       -  
Nanjing Jinwang Art Purchase E-commerce Co., Ltd.   Our 2.42% beneficial owner, Hongxia Wang, is the legal representative and executive director     17,455       -  
Total       $ 62,912     $ 12,721  

 

c. Cost of revenues – related party consists of the following:

 

    Relationship   Nature   For the Six Months Ended June 30,
2019
    For the Six Months Ended
June 30,
2018
    For the Year Ended December 31,
2018
 
            (Unaudited)     (Unaudited)        
Zhongcang Warehouse Co., Ltd.   Our equity investee   Storage fees   $ 320,791     $               -     $ 253,302  

 

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d. Selling and marketing expenses – related party consists of the following:

 

    Relationship   Nature   For the Six Months Ended
June 30,
2019
    For the Six Months Ended
June 30,
2018
    For the Year Ended December 31,
2018
 
            (Unaudited)     (Unaudited)        
Kashi Jinwang Art Purchase E-commerce Co., Ltd.   100% owned by Nanjing Jinwang Art Purchase E-commerce Co., Ltd.   Online advertising expenses   $ 23,718     $ -     $ -  
Nanjing Jinwang Art Purchase E-commerce Co., Ltd.   Our 2.42% beneficial owner, Hongxia Wang, is the legal representative and executive director   Online advertising expenses     -       -       13,690  
Total           $ 23,718     $ -     $ 13,690  

 

e. Accounts payable – related parties represented unpaid balance of storage fees and advertising expenses, which consist of the following:

 

    Relationship   June 30,
2019
    December 31,
2018
 
        (Unaudited)        
Zhongcang Warehouse Co., Ltd.   Our  minority owned subsidiary   $ 275,632     $ 258,406  
Kashi Jinwang Art Purchase E-commerce Co., Ltd.   100% owned by Nanjing Jinwang Art Purchase E-commerce Co., Ltd.     3,192       -  
Total       $ 278,824     $ 258,406  

 

f. Other payables – related parties consist of the following:

 

Other payables – related parties are those nontrade payables arising from transactions between us and our related parties, such as payments paid on behalf of us to be reimbursed.

 

    Relationship   June 30,
2019
    December 31,
2018
 
        (Unaudited)        
Aimin Kong   Our 16.13 % beneficial owner   $ -     $ 67,882  
Lijia Ni   Our chief financial officer     2,449       -  
HKFAEx Group Limited   Former shareholder of HKDAEx     1,344       -  
Mun Wah Wan   The chairman of our board of directors     3,154       -  
Nanjing Culture and Artwork Property Exchange Co., Ltd.*   Our 16.13 % beneficial owner, Huajun Gao, is the legal representative     26,184       130,842  
Yi Shao   CEO of Oriental Culture     234       -  
Total       $ 33,365     $ 198,724  

 

* We have entered into a non-cancellable operating lease agreement for an office with the lease term expiring in December 2019 with a monthly rental of approximately $13,000. Total rental expense for the six months ended June 30, 2019 and 2018 amounted to $26,184 and nil. In addition, we also purchased approximately $300,000 of fixed assets in November, 2018.

 

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DESCRIPTION OF SHARE CAPITAL

 

We are a Cayman Islands exempted company limited by shares and our affairs are governed by our current memorandum and articles of association and the Companies Law (2018 Revision) (as consolidated and revised) of the Cayman Islands, which we refer to as the “Companies Law” below, and the common law of the Cayman Islands.

 

Our authorized share capital is $50,000.00 divided into 1,000,000,000 shares comprising of (i) 900,000,000 ordinary shares of a nominal or par value of $0.00005 each; and (ii) 100,000,000 preferred shares of a nominal or par value of $0.00005 each.  As of the date of this prospectus, 21,700,000 ordinary shares are outstanding.

 

Ordinary Shares

 

Dividends.  Subject to any rights and restrictions of any other class or series of shares, our board of directors may, from time to time, declare dividends on the shares issued and authorize payment of the dividends out of our lawfully available funds. No dividends shall be declared by the board out of our company except the following: 

 

profits; or
“share premium account,” which represents the excess of the price paid to our company on issue of its shares over the par or “nominal” value of those shares, which is similar to the U.S. concept of additional paid in capital.

 

However, no dividend shall bear interest against the Company.

 

Voting Rights.  The holders of our ordinary shares are entitled to one vote per share, including the election of directors. Voting at any meeting of shareholders is by show of hands unless a poll is demanded. On a show of hands every shareholder present in person or by proxy shall have one vote.  On a poll every shareholder entitled to vote (in person or by proxy) shall have one vote for each share for which he/she is the holder. A poll may be demanded by the chairman or one or more shareholders present in person or by proxy holding not less than one-third of the paid up share capital of the Company entitled to vote. A quorum required for a meeting of shareholders consists of shareholders who hold at least one-third of our issued and outstanding shares entitled to vote at the meeting present in person or by proxy and that any holder of shares of the class present in person or by proxy may demand a poll. While not required by our articles of association, a proxy form will accompany any notice of general meeting convened by the directors to facilitate the ability of shareholders to vote by proxy

 

Any ordinary resolution to be made by the shareholders requires the affirmative vote of a simple majority of the votes of the issued and outstanding ordinary shares cast in a general meeting, while a special resolution requires the affirmative vote of no fewer than two-thirds of the votes of the issued and outstanding ordinary shares cast. Under Cayman Islands law, some matters, such as amending the memorandum and articles, changing the name or resolving to be registered by way of continuation in a jurisdiction outside the Cayman Islands, require approval of shareholders by a special resolution.

 

There are no limitations on non-residents or foreign shareholders in the current memorandum and articles to hold or exercise voting rights on the ordinary shares imposed by foreign law or by the charter or other constituent document of our company. However, no person will be entitled to vote at any general meeting or at any separate meeting of the holders of the ordinary shares unless the person is registered as of the record date for such meeting and unless all calls or other sums presently payable by the person in respect of ordinary shares in the Company have been paid.

 

Winding Up; Liquidation.  Upon the winding up of our company, after the full amount that holders of any issued shares ranking senior to the ordinary shares as to distribution on liquidation or winding up are entitled to receive has been paid or set aside for payment, the holders of our ordinary shares are entitled to receive any remaining assets of the Company available for distribution as determined by the liquidator. The assets received by the holders of our ordinary shares in a liquidation may consist in whole or in part of property, which is not required to be of the same kind for all shareholders.

 

Calls on Ordinary Shares and Forfeiture of Ordinary Shares.  Our board of directors may from time to time make calls upon shareholders for any amounts unpaid on their ordinary shares in a notice served to such shareholders at least 14 days prior to the specified time and place of payment. Any ordinary shares that have been called upon and remain unpaid are subject to forfeiture.

 

Redemption of Ordinary Shares.  We may issue shares that are, or at its option or at the option of the holders are, subject to redemption on such terms and in such manner as it may, before the issue of the shares, determine. Under the Companies Law, shares of a Cayman Islands exempted company may be redeemed or repurchased out of profits or share premium of the company, provided the current memorandum and articles authorize this and it has the ability to pay its debts as they come due in the ordinary course of business.

 

No Preemptive Rights.  Holders of ordinary shares will have no preemptive or preferential right to purchase any securities of our company.

 

Variation of Rights Attaching to Shares.  If at any time the share capital is divided into different classes of shares, the rights attaching to any class (unless otherwise provided by the terms of issue of the shares of that class) may, subject to the current memorandum and articles, be varied or abrogated with the consent in writing of the holders of all the issued shares of that class or with the sanction of an ordinary resolution passed at a general meeting of the holders of the shares of that class.

 

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Anti-Takeover Provisions. Some provisions of our current memorandum and articles of association may discourage, delay or prevent a change of control of our company or management that shareholders may consider favorable, including provisions that authorize our board of directors to issue preferred shares in one or more series and to designate the price, rights, preferences, privileges and restrictions of such preferred shares without any further vote or action by our shareholders.

 

However, under Cayman Islands law, our directors may only exercise the rights and powers granted to them under our current memorandum and articles of association for a proper purpose and for what they believe in good faith to be in the best interests of our company.

 

Exempted Company. We are an exempted company with limited liability under the Companies Law. The Companies Law distinguishes between ordinary resident companies and exempted companies. Any company that is registered in the Cayman Islands but conducts business mainly outside of the Cayman Islands may apply to be registered as an exempted company. The requirements for an exempted company are essentially the same as for an ordinary company except that an exempted company:

 

does not have to file an annual return of its shareholders with the Registrar of Companies;
is not required to open its register of members for inspection;
does not have to hold an annual general meeting;
may issue shares with no par value;
may obtain an undertaking against the imposition of any future taxation (such undertakings are usually given for 20 years in the first instance);
may register by way of continuation in another jurisdiction and be deregistered in the Cayman Islands;
may register as a limited duration company; and
may register as a segregated portfolio company.

 

“Limited liability” means that the liability of each shareholder is limited to the amount unpaid by the shareholder on the shares of the company (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil).

 

Warrants

 

There are no outstanding warrants to purchase any of our securities. We have agreed to issue, on the closing date of this offering, the underwriters’ warrants to the representative of the underwriters, ViewTrade Securities, Inc., to purchase an aggregate amount equal to 8% of the aggregate number of ordinary shares sold by us in this offering. For a description of other terms of the underwriters’ warrants, see “Underwriting.”

 

Options

 

There are no outstanding options to purchase any of our securities.

 

Differences in Corporate Law

 

The Companies Law is modeled after that of English law but does not follow many recent English law statutory enactments. In addition, the Companies Law differs from laws applicable to United States corporations and their shareholders. Set forth below is a summary of the significant differences between the provisions of the Companies Law applicable to us and the laws applicable to companies incorporated in the State of Delaware.

 

Mergers and Similar Arrangements. A merger of two or more constituent companies under Cayman Islands law requires a plan of merger or consolidation to be approved by the directors of each constituent company and authorization by (a) a special resolution of the shareholders and (b) such other authorization, if any, as may be specified in such constituent company’s articles of association.

 

A merger between a Cayman Islands parent company and its Cayman Islands subsidiary or subsidiaries does not require authorization by a resolution of shareholders of that Cayman Islands subsidiary if a copy of the plan of merger is given to every member of that Cayman Islands subsidiary to be merged unless that member agrees otherwise. For this purpose a subsidiary is a company of which at least ninety percent (90%) of the issued shares entitled to vote are owned by the parent company.

 

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The consent of each holder of a fixed or floating security interest over a constituent company is required unless this requirement is waived by a court in the Cayman Islands.

 

Save in certain circumstances, a dissentient shareholder of a Cayman constituent company is entitled to payment of the fair value of his shares upon dissenting to a merger or consolidation. The exercise of appraisal rights will preclude the exercise of any other rights save for the right to seek relief on the grounds that the merger or consolidation is void or unlawful.

 

In addition, there are statutory provisions that facilitate the reconstruction and amalgamation of companies, provided that the arrangement is approved by a majority in number of each class of shareholders and creditors with whom the arrangement is to be made, and who must in addition represent three-fourths in value of each such class of shareholders or creditors, as the case may be, that are present and voting either in person or by proxy at a meeting, or meetings, convened for that purpose. The convening of the meetings and subsequently the arrangement must be sanctioned by the Grand Court of the Cayman Islands. While a dissenting shareholder has the right to express to the court the view that the transaction ought not to be approved, the court can be expected to approve the arrangement if it determines that:

 

the statutory provisions as to the required majority vote have been met;
the shareholders have been fairly represented at the meeting in question and the statutory majority are acting bona fide without coercion of the minority to promote interests adverse to those of the class;
the arrangement is such that may be reasonably approved by an intelligent and honest man of that class acting in respect of his interest; and
the arrangement is not one that would more properly be sanctioned under some other provision of the Companies Law.

 

When a takeover offer is made and accepted by holders of 90.0% of the shares within four months, the offeror may, within a two-month period commencing on the expiration of such four month period, require the holders of the remaining shares to transfer such shares on the terms of the offer. An objection can be made to the Grand Court of the Cayman Islands but this is unlikely to succeed in the case of an offer which has been so approved unless there is evidence of fraud, bad faith or collusion.

 

If an arrangement and reconstruction is thus approved, the dissenting shareholder would have no rights comparable to appraisal rights, which would otherwise ordinarily be available to dissenting shareholders of Delaware corporations, providing rights to receive payment in cash for the judicially determined value of the shares.

 

Shareholders’ Suits. In principle, we will normally be the proper plaintiff and as a general rule a derivative action may not be brought by a minority shareholder. However, based on English authorities, which would in all likelihood be of persuasive authority in the Cayman Islands, there are exceptions to the foregoing principle, including when:

 

a company acts or proposes to act illegally or ultra vires;
the act complained of, although not ultra vires, could only be effected duly if authorized by more than a simple majority vote that has not been obtained; and
those who control the company are perpetrating a “fraud on the minority.”

 

Indemnification of Directors and Executive Officers and Limitation of Liability. Cayman 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 Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime. Our current memorandum and articles of association permit indemnification of officers and directors for losses, damages, costs and expenses incurred in their capacities as such unless such losses or damages arise from dishonesty or fraud of such directors or officers. This standard of conduct is generally the same as permitted under the Delaware General Corporation Law for a Delaware corporation. In addition, we have entered into indemnification agreements with our directors and executive officers that provide such persons with additional indemnification beyond that provided in our current memorandum and articles of association.

 

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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 informed that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

Directors’ Fiduciary Duties. Under Delaware corporate law, a director of a Delaware corporation has a fiduciary duty to the corporation and its shareholders. This duty has two components: the duty of care and the duty of loyalty. The duty of care requires that a director act in good faith, with the care that an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of, and disclose to shareholders, all material information reasonably available regarding a significant transaction. The duty of loyalty requires that a director acts in a manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate position for personal gain or advantage. This duty prohibits self-dealing by a director and mandates that the best interest of the corporation and its shareholders take precedence over any interest possessed by a director, officer or controlling shareholder and not shared by the shareholders generally. In general, actions of a director are presumed to have been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation. However, this presumption may be rebutted by evidence of a breach of one of the fiduciary duties. Should such evidence be presented concerning a transaction by a director, the director must prove the procedural fairness of the transaction, and that the transaction was of fair value to the corporation.

 

As a matter of Cayman Islands law, a director of a Cayman Islands company is in the position of a fiduciary with respect to the company and therefore it is considered that he or she owes the following duties to the company—a duty to act bona fide in the best interests of the company, a duty not to make a profit based on his or her position as director (unless the company permits him or her to do so) and a duty not to put himself or herself in a position where the interests of the company conflict with his or her personal interest or his or her duty to a third party. A director of a Cayman Islands company owes to the company a duty to act with skill and care. It was previously considered that a director need not exhibit in the performance of his or her duties a greater degree of skill than may reasonably be expected from a person of his or her knowledge and experience. However, English and Commonwealth courts have moved towards an objective standard with regard to the required skill and care and these authorities are likely to be followed in the Cayman Islands.

 

Shareholder Action by Written Consent. Under the Delaware General Corporation Law, a corporation may eliminate the right of shareholders to act by written consent by amendment to its certificate of incorporation. Cayman Islands law and our current articles of association provide that shareholders may approve corporate matters by way of a unanimous written resolution signed by or on behalf of each shareholder who would have been entitled to vote on such matter at a general meeting without a meeting being held.

 

Shareholder Proposals. Under the Delaware General Corporation Law, a shareholder has the right to put any proposal before the annual meeting of shareholders, provided it complies with the notice provisions in the governing documents. A special meeting may be called by the board of directors or any other person authorized to do so in the governing documents, but shareholders may be precluded from calling special meetings.

 

Cayman Islands law does not provide shareholders any right to put proposals before a meeting or requisition a general meeting. However, these rights may be provided in articles of association. Our current articles of association allow our shareholders holding not less than one-third (1/3) of paid up voting share capital of the Company to requisition a shareholder’s meeting. Other than this right to requisition a shareholders’ meeting, our current articles of association do not provide our shareholders other right to put proposal before a meeting. As a Cayman Islands exempted company, we are not obliged by law to call shareholders’ annual general meetings.

 

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Cumulative Voting. Under the Delaware General Corporation Law, cumulative voting for elections of directors is not permitted unless the corporation’s certificate of incorporation specifically provides for it. Cumulative voting potentially facilitates the representation of minority shareholders on a board of directors since it permits the minority shareholder to cast all the votes to which the shareholder is entitled on a single director, which increases the shareholder’s voting power with respect to electing such director. There are no prohibitions in relation to cumulative voting under the laws of the Cayman Islands but our current articles of association do not provide for cumulative voting. As a result, our shareholders are not afforded any less protections or rights on this issue than shareholders of a Delaware corporation.

 

Removal of Directors. Under the Delaware General Corporation Law, a director of a corporation with a classified board may be removed only for cause with the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise. Under our current articles of association, directors may be removed with or without cause, by an ordinary resolution of our shareholders.

 

Transactions with Interested Shareholders. The Delaware General Corporation Law contains a business combination statute applicable to Delaware corporations whereby, unless the corporation has specifically elected not to be governed by such statute by amendment to its certificate of incorporation, it is prohibited from engaging in certain business combinations with an “interested shareholder” for three years following the date that such person becomes an interested shareholder. An interested shareholder generally is a person or a group who or which owns or owned 15% or more of the target’s outstanding voting share within the past three years. This has the effect of limiting the ability of a potential acquirer to make a two-tiered bid for the target in which all shareholders would not be treated equally. The statute does not apply if, among other things, prior to the date on which such shareholder becomes an interested shareholder, the board of directors approves either the business combination or the transaction which resulted in the person becoming an interested shareholder. This encourages any potential acquirer of a Delaware corporation to negotiate the terms of any acquisition transaction with the target’s board of directors.

 

Cayman Islands law has no comparable statute. As a result, we cannot avail ourselves of the types of protections afforded by the Delaware business combination statute. However, although Cayman Islands law does not regulate transactions between a company and its significant shareholders, it does provide that such transactions must be entered into bona fide in the best interests of the company and not with the effect of constituting a fraud on the minority shareholders.

 

Dissolution; Winding up. Under the Delaware General Corporation Law, unless the board of directors approves the proposal to dissolve, dissolution must be approved by shareholders holding 100% of the total voting power of the corporation. Only if the dissolution is initiated by the board of directors may it be approved by a simple majority of the corporation’s outstanding shares. Delaware law allows a Delaware corporation to include in its certificate of incorporation a supermajority voting requirement in connection with dissolutions initiated by the board. Under Cayman Islands law, a company may be wound up by either an order of the courts of the Cayman Islands or by a special resolution of its members or, if the company is unable to pay its debts as they fall due, by an ordinary resolution of its members. The court has authority to order winding up in a number of specified circumstances including where it is, in the opinion of the court, just and equitable to do so. Under the Companies Law and our current articles of association, our company may be dissolved, liquidated or wound up by a special resolution of our shareholders.

 

Variation of Rights of Shares. Under the Delaware General Corporation Law, a corporation may vary the rights of a class of shares with the approval of a majority of the outstanding shares of such class, unless the certificate of incorporation provides otherwise. Under Cayman Islands law and our current articles of association, if our share capital is divided into more than one class of shares, we may vary the rights attached to any class with the written consent of the holders of all the issued shares of that class or with the sanction of an ordinary resolution passed at a general meeting of the holders of the shares of that class. The necessary quorum shall be at least one or more persons holding or representing by proxy at least one-third of the issued shares of the class and that any holder of shares of the class present in person or by proxy may demand a poll.

 

Amendment of Governing Documents. Under the Delaware General Corporation Law, a corporation’s governing documents may be amended with the approval of a majority of the outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise. As permitted by Cayman Islands law, our current memorandum and articles of association may only be amended with a special resolution of our shareholders.

 

Rights of Non-resident or Foreign Shareholders. There are no limitations imposed by our current memorandum and articles of association on the rights of non-resident or foreign shareholders to hold or exercise voting rights on our shares. In addition, there are no provisions in our current memorandum and articles of association governing the ownership threshold above which shareholder ownership must be disclosed.

 

Listing

 

We have applied to have our ordinary shares listed on NASDAQ under the symbol “DFWH”. We cannot guarantee that we will be successful in listing our ordinary shares on NASDAQ. However, we will not complete this offering unless we are so listed.

 

Transfer Agent and Registrar of Shares

 

The transfer agent and registrar for our ordinary shares is VStock Transfer, LLC. The transfer agent and registrar’s address is 18 Lafayette Place, Woodmere, New York 11598.

 

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SHARES ELIGIBLE FOR FUTURE SALE

 

Prior to this offering, there was no established public trading market for our ordinary shares.  We cannot assure you that a liquid trading market for our ordinary shares will develop on NASDAQ or be sustained after this offering.  Future sales of substantial amounts of ordinary shares in the public market, or the perception that such sales may occur, could adversely affect the market price of our ordinary shares.  Further, since a large number of our ordinary shares will not be available for sale shortly after this offering because of the contractual and legal restrictions on resale described below, sales of substantial amounts of our ordinary shares in the public market after these restrictions lapse, or the perception that such sales may occur, could adversely affect the prevailing market price and our ability to raise equity capital in the future.

 

Upon completion of this offering, we will have an aggregate of 24,200,000 ordinary shares outstanding, assuming no exercise of the underwriters’ over-allotment option.   The ordinary shares sold in this offering will be freely tradable without restriction or further registration under the Securities Act.

 

As of the date of this prospectus, 21,700,000 ordinary shares held by existing shareholders are deemed “restricted securities” as that term is defined in Rule 144 and may not be resold except pursuant to an effective registration statement or an applicable exemption from registration, including Rule 144. A total of ____, or ____%, of our currently outstanding ordinary shares will be subject to “lock-up” agreements described below on the effective date of this offering. Upon expiration of the lock-up period of twelve (12) months after the date of this prospectus, outstanding shares will become eligible for sale, subject in most cases to the limitations of Rule 144. The remaining ____ shares may be sold in accordance with Rule 144.

 

The following table summarizes the total shares potentially available for future sale.

 

Days After Date of this Prospectus   Shares Eligible
for Sale
  Comment
Upon Effectiveness   __   Freely tradable shares sold in the offering.
         
90 days   __   shares saleable under Rule 144.
         
Twelve months   __   shares saleable after expiration of the lock-up.

 

Rule 144

 

In general, under Rule 144, beginning ninety days after the date of this prospectus, a person who is not our affiliate and has not been our affiliate at any time during the preceding three months will be entitled to sell any shares of our share capital that such person has held for at least six months, including the holding period of any prior owner other than one of our affiliates, without regard to volume limitations.  Sales of our share capital by any such person would be subject to the availability of current public information about us if the shares to be sold were held by such person for less than one year.

 

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In addition, under Rule 144, a person may sell shares of our share capital acquired from us immediately upon the completion of this offering, without regard to volume limitations or the availability of public information about us, if:

 

the person is not our affiliate and has not been our affiliate at any time during the preceding three months;
and the person has beneficially owned the shares to be sold for at least six months, including the holding period of any prior owner other than one of our affiliates.

 

Beginning ninety days after the date of this prospectus, our affiliates who have beneficially owned shares of our share capital for at least six months, including the holding period of any prior owner other than another of our affiliates, would be entitled to sell within any three-month period those shares and any other shares they have acquired that are not restricted securities, provided that the aggregate number of shares sold does not exceed the greater of:

 

  1% of the number of shares of our authorized share capital then outstanding, which will equal approximately 242,000 ordinary shares immediately after this offering assuming no exercise of the underwriters’ over-allotment option; or

the average weekly trading volume in our ordinary shares on the listing exchange during the four calendar weeks preceding the filing of a notice on Form 144 with respect to such sale.

 

Sales under Rule 144 by our affiliates are generally subject to the availability of current public information about us, as well as certain “manner of sale” and notice requirements.

 

Lock-up Agreements

 

We and each of our officers, directors and certain shareholders have agreed, subject to certain exceptions, not to, directly or indirectly, offer, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, lend or otherwise dispose of, or enter into any swap or other transaction that is designed to, or could be expected to, result in the disposition of any of our ordinary shares or other securities convertible into or exchangeable or exercisable for our ordinary shares or derivatives of our ordinary shares (whether any such swap or transaction is to be settled by delivery of securities, in cash, or otherwise), owned by these persons prior to this offering or acquired in this offering or ordinary shares issuable upon exercise of options or warrants held by these persons until after 12 months following the date of this prospectus.

 

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TAXATION

 

The following summary of the material Cayman Islands, PRC and U.S. federal income tax consequences of an investment in our ordinary shares is based upon laws and relevant interpretations thereof in effect as of the date of this prospectus, all of which are subject to change. This summary does not deal with all possible tax consequences relating to an investment in our ordinary shares, such as the tax consequences under state, local and other tax laws. To the extent the discussion relates to matters of U.S. tax law, it represents the opinion of Foster Garvey P.C.

 

Cayman Islands Taxation

 

The Cayman Islands currently levies no taxes on individuals or corporations based upon profits, income, gains or appreciation and there is no taxation in the nature of inheritance tax or estate duty. There are no other taxes likely to be material to us levied by the government of the Cayman Islands except for stamp duties which may be applicable on instruments executed in, or brought within the jurisdiction of the Cayman Islands. The Cayman Islands is not party to any double tax treaties that are applicable to any payments made to or by our company. There are no exchange control regulations or currency restrictions in the Cayman Islands. 

  

Payments of dividends and capital in respect of the shares will not be subject to taxation in the Cayman Islands and no withholding will be required on the payment of a dividend or capital to any holder of the shares, nor will gains derived from the disposal of the shares be subject to Cayman Islands income or corporation tax.

 

No stamp duty is payable in respect of the issue of the shares or on an instrument of transfer in respect of a share.

 

People’s Republic of China Taxation

 

Under the EIT Law, an enterprise established outside the PRC with a “de facto management body” within the PRC is considered a PRC resident enterprise for PRC enterprise income tax purposes and is generally subject to a uniform 25% enterprise income tax rate on its worldwide income as well as tax reporting obligations. Under the Implementation Rules, a “de facto management body” is defined as a body that has material and overall management and control over the manufacturing and business operations, personnel and human resources, finances and properties of an enterprise. In addition, SAT Circular 82 issued in April 2009 specifies that certain offshore-incorporated enterprises controlled by PRC enterprises or PRC enterprise groups will be classified as PRC resident enterprises if all of the following conditions are met: (a) senior management personnel and core management departments in charge of the daily operations of the enterprises have their presence mainly in the PRC; (b) their financial and human resources decisions are subject to determination or approval by persons or bodies in the PRC; (c) major assets, accounting books and company seals of the enterprises, and minutes and files of their board’s and shareholders’ meetings are located or kept in the PRC; and (d) half or more of the enterprises’ directors or senior management personnel with voting rights habitually reside in the PRC. Further to SAT Circular 82, the SAT issued SAT Bulletin 45, which took effect in September 2011, to provide more guidance on the implementation of SAT Circular 82. SAT Bulletin 45 provides for procedures and administration details of determination on PRC resident enterprise status and administration on post-determination matters. If the PRC tax authorities determine that the Company is a PRC resident enterprise for PRC enterprise income tax purposes, a number of unfavorable PRC tax consequences could follow. For example, Jiangsu Yanggu may be subject to enterprise income tax at a rate of 25% with respect to its worldwide taxable income. Also, a 10% withholding tax would be imposed on dividends we pay to our non-PRC enterprise shareholders and with respect to gains derived by our non-PRC enterprise shareholders from transferring our shares or ordinary shares and potentially a 20% of withholding tax would be imposed on dividends we pay to our non-PRC individual shareholders and with respect to gains derived by our non-PRC individual shareholders from transferring our shares or ordinary shares.

 

It is unclear whether, if we are considered a PRC resident enterprise, holders of our shares or ordinary shares would be able to claim the benefit of income tax treaties or agreements entered into between China and other countries or areas. See “Risk Factors—Risk Factors Relating to Doing Business in China—Under the PRC Enterprise Income Tax Law, we may be classified as a PRC resident enterprise for PRC enterprise income tax purposes. Such classification would likely result in unfavorable tax consequences to us and our non-PRC Shareholders and have a material adverse effect on our results of operations and the value of your investment.”

 

The SAT issued SAT Circular 59 together with the Ministry of Finance in April 2009 and SAT Circular 698 in December 2009. Both SAT Circular 59 and SAT Circular 698 became effective retroactively as of January 1, 2008, and Circular 7 replaced of some of the existing rules in Circular 698, effective in February 2015.  On October 17, 2017, the SAT promulgated Bulletin 37, and Circular 698 was replaced with effect from December 1, 2017. Under Circular 7, where a non-resident enterprise conducts an “indirect transfer” by transferring taxable assets, including, in particular, equity interests in a PRC resident enterprise, indirectly by disposing of the equity interests of an overseas holding company, the non-resident enterprise, being the transferor, or the transferee or the PRC entity which directly owned such taxable assets may report to the relevant tax authority such indirect transfer. Using a “substance over form” principle, the PRC tax authority may disregard the existence of the overseas holding company if it lacks a reasonable commercial purpose and was established for the purpose of reducing, avoiding or deferring PRC tax. We and non-resident enterprises in such transactions may become at risk of being subject to filing obligations or being taxed, under Circular 59 or Circular 7 and Bulletin 37, and may be required to expend valuable resources to comply with Circular 59, Circular 7 and Bulletin 37 or to establish that we and our non-resident enterprises should not be taxed under these circulars. In addition, in accordance with the Individual Income Tax Law promulgated by the Standing Committee of NPC late amended on August 31, 2018 and become effective on January 1, 2019, where an individual carries out other arrangements without reasonable business purpose and obtains improper tax gains, the tax authorities shall have the right to make tax adjustment based on a reasonable method, and levy additional tax and collect interest if there is a need to levy additional tax after making tax adjustments. As a result, our beneficial owners, who are PRC residents, may be deemed to have carried out other arrangements without reasonable business purpose and obtains improper tax gains for such indirect transfer, and thus be levied tax. See “Risk Factors—Risk Factors Relating to Doing Business in China—We face uncertainty regarding the PRC tax reporting obligations and consequences for certain indirect transfers of our operating company’s equity interests. Enhanced scrutiny over acquisition transactions by the PRC tax authorities may have a negative impact on potential acquisitions we may pursue in the future.”

 

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Pursuant to the Arrangement between the Mainland China and the Hong Kong Special Administrative Region for the Avoidance of Double Taxation and Tax Evasion on Income, or the Tax Arrangement, where a Hong Kong resident enterprise which is considered a non-PRC tax resident enterprise directly holds at least 25% of a PRC enterprise, the withholding tax rate in respect of the payment of dividends by such PRC enterprise to such Hong Kong resident enterprise is reduced to 5% from a standard rate of 10%, subject to approval of the PRC local tax authority. Pursuant to the Notice of the State Administration of Taxation on the Issues concerning the Application of the Dividend Clauses of Tax Agreements, or Circular 81, a resident enterprise of the counter-party to such Tax Arrangement should meet the following conditions, among others, in order to enjoy the reduced withholding tax under the Tax Arrangement: (i) it must directly own the required percentage of equity interests and voting rights in such PRC resident enterprise; and (ii) it should directly own such percentage in the PRC resident enterprise anytime in the 12 months prior to receiving the dividends. Furthermore, the Administrative Measures for Non-Resident Enterprises to Enjoy Treatments under Tax Treaties (For Trial Implementation), or the Administrative Measures, which became effective in October 2009, requires that the non-resident enterprises must obtain the approval from the relevant tax authority in order to enjoy the reduced withholding tax rate under the tax treaties. There are also other conditions for enjoying such reduced withholding tax rate according to other relevant tax rules and regulations. Accordingly, Jiangsu Yanggu may be able to enjoy the 5% withholding tax rate for the dividends it receives from the WFOE, if it satisfies the conditions prescribed under Circular 81 and other relevant tax rules and regulations, and obtains the approvals as required under the Administrative Measures. However, according to Circular 81, if the relevant tax authorities consider the transactions or arrangements we have are for the primary purpose of enjoying a favorable tax treatment, the relevant tax authorities may adjust the favorable withholding tax in the future.

 

Hong Kong Taxation

 

The taxation of income and capital gains of holders of ordinary shares is subject to the laws and practices of Hong Kong and of jurisdictions in which holders of ordinary shares are resident or otherwise subject to tax. The following summary of certain relevant taxation provisions under Hong Kong law is based on current law and practice, is subject to changes therein and does not constitute legal or tax advice. The discussion does not deal with all possible tax consequences relating to an investment in the ordinary shares. Accordingly, each prospective investor (particularly those subject to special tax rules, such as banks, dealers, insurance companies, tax-exempt entities and holders of 10% or more of our voting capital stock) should consult its own tax advisor regarding the tax consequences of an investment in the ordinary shares. The discussion is based upon laws and relevant interpretations thereof in effect as of the date of this prospectus, all of which are subject to change. There is no reciprocal tax treaty in effect between Hong Kong and the United States.

 

Tax on Dividends

 

Under the current practices of the Hong Kong Inland Revenue Department, no tax is payable in Hong Kong in respect of dividends paid by us.

 

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Profits Tax

 

No tax is imposed in Hong Kong in respect of capital gains from the sale of property (such as the ordinary shares). Trading gains from the sale of property by persons carrying on a trade, profession or business in Hong Kong where such gains are derived from or arise in Hong Kong from such trade, profession or business will be chargeable to Hong Kong profits tax, which is currently imposed at the rate of 16.5% and 15% on corporations and unincorporated businesses, respectively, and at a maximum rate of 15% on individuals. Liability for Hong Kong profits tax may thus arise in respect of trading gains from sales of ordinary shares realized by persons carrying on a business or trading or dealing in securities in Hong Kong.

 

Stamp Duty

 

Hong Kong stamp duty, currently charged at the rate of HK$1 per HK$1,000 or part thereof on the higher of the consideration for or the value of the ordinary shares, will be payable by the purchaser on every purchase and by the seller on every sale of ordinary shares (i.e., a total of HK$2 per HK$1,000 or part thereof is currently payable on a typical sale and purchase transaction involving ordinary shares). In addition, a fixed duty of HK$5 is currently payable on any instrument of transfer of ordinary shares. If one of the parties to the sale is a non-Hong Kong resident and does not pay the required stamp duty, the duty not paid will be assessed on the instrument of transfer (if any) and the transferee will be liable for payment of such duty. No Hong Kong stamp duty is payable upon the transfer of ordinary shares outside Hong Kong.

 

Estate Duty

 

The Revenue (Abolition of Estate Duty) Ordinance 2005 came into effect on February 11, 2006 in Hong Kong. No Hong Kong estate duty is payable and no estate duty clearance papers are needed for an application for a grant of representation in respect of holders of ordinary shares whose death occurs on or after February 11, 2006.

 

United States Federal Income Tax Considerations

 

The following is a discussion of United States federal income tax considerations relating to the acquisition, ownership, and disposition of our ordinary shares by a U.S. Holder, as defined below, that acquires our ordinary shares in this offering and holds our ordinary shares as “capital assets” (generally, property held for investment) under the United States Internal Revenue Code of 1986, as amended (the “Code”). This discussion is based upon existing United States federal income tax law, which is subject to differing interpretations or change, possibly with retroactive effect. No ruling has been sought from the Internal Revenue Service (the “IRS”) with respect to any United States federal income tax consequences described below, and there can be no assurance that the IRS or a court will not take a contrary position. This discussion does not address all aspects of United States federal income taxation that may be important to particular investors in light of their individual circumstances, including investors subject to special tax rules (such as, for example, certain financial institutions, insurance companies, regulated investment companies, real estate investment trusts, broker-dealers, traders in securities that elect mark-to-market treatment, partnerships and their partners, tax-exempt organizations (including private foundations)), investors who are not U.S. Holders, investors that own (directly, indirectly, or constructively) 10% or more of our voting stock, investors that hold their ordinary shares as part of a straddle, hedge, conversion, constructive sale or other integrated transaction, or investors that have a functional currency other than the U.S. dollar, all of whom may be subject to tax rules that differ significantly from those summarized below. In addition, this discussion does not address any tax laws other than the United States federal income tax laws, including any state, local, alternative minimum tax or non-United States tax considerations, or the Medicare tax. Each potential investor is urged to consult its tax advisor regarding the United States federal, state, local and non-United States income and other tax considerations of an investment in our ordinary shares.

 

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General

 

For purposes of this discussion, a “U.S. Holder” is a beneficial owner of our ordinary shares that is, for United States federal income tax purposes, (i) an individual who is a citizen or treated as a tax resident of the United States, (ii) a corporation (or other entity treated as a corporation for United States federal income tax purposes) created in, or organized under the laws of, the United States or any state thereof or the District of Columbia, (iii) an estate the income of which is includible in gross income for United States federal income tax purposes regardless of its source, or (iv) a trust (A) the administration of which is subject to the primary supervision of a United States court and which has one or more United States persons who have the authority to control all substantial decisions of the trust or (B) that has otherwise elected to be treated as a United States person under the Code.

 

If a partnership (or other entity treated as a partnership for United States federal income tax purposes) is a beneficial owner of our ordinary shares, the tax treatment of a partner in the partnership will depend upon the status of the partner and the activities of the partnership. Partnerships and partners of a partnership holding our ordinary shares are urged to consult their tax advisors regarding an investment in our ordinary shares.

 

The discussion set forth below is addressed only to U.S. Holders that purchase ordinary shares in this offering. Prospective purchasers are urged to consult their own tax advisors about the application of the U.S. federal income tax rules to their particular circumstances as well as the state, local, foreign and other tax consequences to them of the purchase, ownership and disposition of our ordinary shares.

 

Taxation of Dividends and Other Distributions on our Ordinary Shares

 

Subject to the passive foreign investment company rules discussed below, the gross amount of distributions made by us to you with respect to the ordinary shares (including the amount of any taxes withheld therefrom) will generally be includable in your gross income as dividend income on the date of receipt by you, but only to the extent that the distribution is paid out of our current or accumulated earnings and profits (as determined under U.S. federal income tax principles). With respect to corporate U.S. Holders, the dividends will not be eligible for the dividends-received deduction allowed to corporations in respect of dividends received from other U.S. corporations.

 

With respect to non-corporate U.S. Holders, including individual U.S. Holders, dividends will be taxed at the lower capital gains rate applicable to qualified dividend income, provided that (1) the ordinary shares are readily tradable on an established securities market in the United States, or we are eligible for the benefits of an approved qualifying income tax treaty with the United States that includes an exchange of information program, (2) we are not a passive foreign investment company (as discussed below) for either our taxable year in which the dividend is paid or the preceding taxable year, and (3) certain holding period requirements are met. Because there is no income tax treaty between the United States and the Cayman Islands, clause (1) above can be satisfied only if the ordinary shares are readily tradable on an established securities market in the United States. Under U.S. Internal Revenue Service authority, ordinary shares are considered for purpose of clause (1) above to be readily tradable on an established securities market in the United States if they are listed on NASDAQ. You are urged to consult your tax advisors regarding the availability of the lower rate for dividends paid with respect to our ordinary shares, including the effects of any change in law after the date of this prospectus.

 

To the extent that the amount of the distribution exceeds our current and accumulated earnings and profits (as determined under U.S. federal income tax principles), it will be treated first as a tax-free return of your tax basis in your ordinary shares, and to the extent the amount of the distribution exceeds your tax basis, the excess will be taxed as capital gain. We do not intend to calculate our earnings and profits under U.S. federal income tax principles. Therefore, a U.S. Holder should expect that a distribution will be treated as a dividend even if that distribution would otherwise be treated as a non-taxable return of capital or as capital gain under the rules described above.

 

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Taxation of Dispositions of Ordinary Shares

 

Subject to the passive foreign investment company rules discussed below, you will recognize taxable gain or loss on any sale, exchange or other taxable disposition of a share equal to the difference between the amount realized (in U.S. dollars) for the share and your tax basis (in U.S. dollars) in the ordinary shares. The gain or loss will be capital gain or loss. If you are a non-corporate U.S. Holder, including an individual U.S. Holder, who has held the ordinary shares for more than one year, you may be eligible for reduced tax rates on any such capital gains. The deductibility of capital losses is subject to limitations.

 

Passive Foreign Investment Company (“PFIC”)

 

A non-U.S. corporation is considered a PFIC for any taxable year if either:

 

at least 75% of its gross income for such taxable year is passive income; or
at least 50% of the value of its assets (based on an average of the quarterly values of the assets during a taxable year) is attributable to assets that produce or are held for the production of passive income (the “asset test”).

 

Passive income generally includes dividends, interest, rents and royalties (other than rents or royalties derived from the active conduct of a trade or business) and gains from the disposition of passive assets. We will be treated as owning our proportionate share of the assets and earning our proportionate share of the income of any other corporation in which we own, directly or indirectly, at least 25% (by value) of the stock. In determining the value and composition of our assets for purposes of the PFIC asset test, (1) the cash we raise in this offering will generally be considered to be held for the production of passive income and (2) the value of our assets must be determined based on the market value of our ordinary shares from time to time, which could cause the value of our non-passive assets to be less than 50% of the value of all of our assets (including the cash raised in this offering) on any particular quarterly testing date for purposes of the asset test.

 

We must make a separate determination each year as to whether we are a PFIC. Depending on the amount of cash we raise in this offering, together with any other assets held for the production of passive income, it is possible that, for our 2019 taxable year or for any subsequent taxable year, at least 50% of our assets may be assets held for the production of passive income. We will make this determination following the end of any particular tax year. Although the law in this regard is unclear, we treat our consolidated affiliated entities, as being owned by us for United States federal income tax purposes, not only because we exercise effective control over the operation of such entities but also because we are entitled to substantially all of their economic benefits, and, as a result, we consolidate their operating results in our consolidated financial statements. In particular, because the value of our assets for purposes of the asset test will generally be determined based on the market price of our ordinary shares and because cash is generally considered to be an asset held for the production of passive income, our PFIC status will depend in large part on the market price of our ordinary shares and the amount of cash we raise in this offering. Accordingly, fluctuations in the market price of the ordinary shares may cause us to become a PFIC. In addition, the application of the PFIC rules is subject to uncertainty in several respects and the composition of our income and assets will be affected by how, and how quickly, we spend the cash we raise in this offering. We are under no obligation to take steps to reduce the risk of our being classified as a PFIC, and as stated above, the determination of the value of our assets will depend upon material facts (including the market price of our ordinary shares from time to time and the amount of cash we raise in this offering) that may not be within our control. If we are a PFIC for any year during which you hold ordinary shares, the shares will continue to be treated as stock in a PFIC for all succeeding years during which you hold ordinary shares. However, if we cease to be a PFIC and you did not previously make a timely “mark-to-market” election as described below, you may avoid some of the adverse effects of the PFIC regime by making a “purging election” (as described below) with respect to the ordinary shares.

 

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If we are a PFIC for your taxable year(s) during which you hold ordinary shares, you will be subject to special tax rules with respect to any “excess distribution” that you receive and any gain you realize from a sale or other disposition (including a pledge) of the ordinary shares, unless you make a “mark-to-market” election as discussed below. Distributions you receive in a taxable year that are greater than 125% of the average annual distributions you received during the shorter of the three preceding taxable years or your holding period for the ordinary shares will be treated as an excess distribution. Under these special tax rules:

 

the excess distribution or gain will be allocated ratably over your holding period for the ordinary shares;
the amount allocated to your current taxable year, and any amount allocated to any of your taxable year(s) prior to the first taxable year in which we were a PFIC, will be treated as ordinary income, and
the amount allocated to each of your other taxable year(s) will be subject to the highest tax rate in effect for that year and the interest charge generally applicable to underpayments of tax will be imposed on the resulting tax attributable to each such year.

 

The tax liability for amounts allocated to years prior to the year of disposition or “excess distribution” cannot be offset by any net operating losses for such years, and gains (but not losses) realized on the sale of the ordinary shares cannot be treated as capital, even if you hold the ordinary shares as capital assets.

 

A U.S. Holder of “marketable stock” (as defined below) in a PFIC may make a mark-to-market election for such stock to elect out of the tax treatment discussed above. If you make a mark-to-market election for first taxable year which you hold (or are deemed to hold) ordinary shares and for which we are determined to be a PFIC, you will include in your income each year an amount equal to the excess, if any, of the fair market value of the ordinary shares as of the close of such taxable year over your adjusted basis in such ordinary shares, which excess will be treated as ordinary income and not capital gain. You are allowed an ordinary loss for the excess, if any, of the adjusted basis of the ordinary shares over their fair market value as of the close of the taxable year. However, such ordinary loss is allowable only to the extent of any net mark-to-market gains on the ordinary shares included in your income for prior taxable years. Amounts included in your income under a mark-to-market election, as well as gain on the actual sale or other disposition of the ordinary shares, are treated as ordinary income. Ordinary loss treatment also applies to any loss realized on the actual sale or disposition of the ordinary shares, to the extent that the amount of such loss does not exceed the net mark-to-market gains previously included for such ordinary shares. Your basis in the ordinary shares will be adjusted to reflect any such income or loss amounts. If you make a valid mark-to-market election, the tax rules that apply to distributions by corporations which are not PFICs would apply to distributions by us, except that the lower applicable capital gains rate for qualified dividend income discussed above under “— Taxation of Dividends and Other Distributions on our ordinary shares” generally would not apply.

 

The mark-to-market election is available only for “marketable stock”, which is stock that is traded in other than de minimis quantities on at least 15 days during each calendar quarter (“regularly traded”) on a qualified exchange or other market (as defined in applicable U.S. Treasury regulations), including NASDAQ. If the ordinary shares are regularly traded on NASDAQ and if you are a holder of ordinary shares, the mark-to-market election would be available to you were we to be or become a PFIC.

 

Alternatively, a U.S. Holder of stock in a PFIC may make a “qualified electing fund” election with respect to such PFIC to elect out of the tax treatment discussed above. A U.S. Holder who makes a valid qualified electing fund election with respect to a PFIC will generally include in gross income for a taxable year such holder’s pro rata share of the corporation’s earnings and profits for the taxable year. However, the qualified electing fund election is available only if such PFIC provides such U.S. Holder with certain information regarding its earnings and profits as required under applicable U.S. Treasury regulations. We do not currently intend to prepare or provide the information that would enable you to make a qualified electing fund election. If you hold ordinary shares in any taxable year in which we are a PFIC, you will be required to file U.S. Internal Revenue Service Form 8621 in each such year and provide certain annual information regarding such ordinary shares, including regarding distributions received on the ordinary shares and any gain realized on the disposition of the ordinary shares.

 

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If you do not make a timely “mark-to-market” election (as described above), and if we were a PFIC at any time during the period you hold our ordinary shares, then such ordinary shares will continue to be treated as stock of a PFIC with respect to you even if we cease to be a PFIC in a future year, unless you make a “purging election” for the year we cease to be a PFIC. A “purging election” creates a deemed sale of such ordinary shares at their fair market value on the last day of the last year in which we are treated as a PFIC. The gain recognized by the purging election will be subject to the special tax and interest charge rules treating the gain as an excess distribution, as described above. As a result of the purging election, you will have a new basis (equal to the fair market value of the ordinary shares on the last day of the last year in which we are treated as a PFIC) and holding period (which new holding period will begin the day after such last day) in your ordinary shares for tax purposes.

 

You are urged to consult your tax advisors regarding the application of the PFIC rules to your investment in our ordinary shares and the elections discussed above.

 

Information Reporting and Backup Withholding

 

Dividend payments with respect to our ordinary shares and proceeds from the sale, exchange or redemption of our ordinary shares may be subject to information reporting to the U.S. Internal Revenue Service and possible U.S. backup withholding. Backup withholding will not apply, however, to a U.S. Holder who furnishes a correct taxpayer identification number and makes any other required certification on U.S. Internal Revenue Service Form W-9 or who is otherwise exempt from backup withholding. U.S. Holders who are required to establish their exempt status generally must provide such certification on U.S. Internal Revenue Service Form W-9. U.S. Holders are urged to consult their tax advisors regarding the application of the U.S. information reporting and backup withholding rules.

 

Backup withholding is not an additional tax. Amounts withheld as backup withholding may be credited against your U.S. federal income tax liability, and you may obtain a refund of any excess amounts withheld under the backup withholding rules by filing the appropriate claim for refund with the U.S. Internal Revenue Service and furnishing any required information. We do not intend to withhold taxes for individual shareholders. However, transactions effected through certain brokers or other intermediaries may be subject to withholding taxes (including backup withholding), and such brokers or intermediaries may be required by law to withhold such taxes.

 

Under the Hiring Incentives to Restore Employment Act of 2010, certain U.S. Holders are required to report information relating to our ordinary shares, subject to certain exceptions (including an exception for ordinary shares held in accounts maintained by certain financial institutions), by attaching a complete Internal Revenue Service Form 8938, Statement of Specified Foreign Financial Assets, with their tax return for each year in which they hold ordinary shares. Failure to report the information could result in substantial penalties. You should consult your own tax advisor regarding your obligation to file Form 8938.

 

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UNDERWRITING

 

We have entered into an underwriting agreement with ViewTrade Securities, Inc. to act as the representative of the underwriters named below (the “Representative”). Subject to the terms and conditions of the underwriting agreement, the underwriters named below have agreed to purchase, and we have agreed to sell to them, the number of our ordinary shares at the initial public offering price, less the underwriting discounts and commissions, as set forth on the cover page of this prospectus and as indicated below:

 

Name   Number of Shares  
ViewTrade Securities, Inc.             
Total        

 

The underwriters are offering the shares subject to their acceptance of the shares from us and subject to prior sale. The underwriting agreement provides that the obligations of the underwriters to pay for and accept delivery of the shares offered by this prospectus are subject to the approval of certain legal matters by their counsel and to certain other conditions. The underwriters are obligated to take and pay for all of the shares offered by this prospectus if any such shares are taken. However, the underwriters are not required to take or pay for the shares covered by the underwriters’ over-allotment option described below.

 

We have granted to the underwriters an option, exercisable for 45 days from the date of this prospectus, to purchase up to an additional 375,000 ordinary shares at the initial public offering price listed on the cover page of this prospectus, less underwriting discounts and commissions. The option may be exercised in whole or in part, and may be exercised more than once, during the 45-day option period. The underwriters may exercise this option solely for the purpose of covering over-allotments, if any, made in connection with the offering contemplated by this prospectus. To the extent the option is exercised, each underwriter will become obligated, subject to certain conditions, to purchase the same percentage of the additional shares as the number listed next to the underwriter’s name in the preceding table bears to the total number of shares listed next to the names of all underwriters in the preceding table.

 

The underwriters will offer the shares to the public at the initial public offering price set forth on the cover page of this prospectus and to certain dealers at that price less a concession not in excess of $● per share. The underwriters may allow, and certain dealers may re-allow, a discount from the concession not in excess of $● per share to certain brokers and dealers. After this offering, the initial public offering price, concession and reallowance to dealers may be reduced by the Representative. No such reduction shall change the amount of proceeds to be received by us as set forth on the cover page of this prospectus. The securities are offered by the underwriters as stated herein, subject to receipt and acceptance by them and subject to their right to reject any order in whole or in part. The underwriters have informed us that they do not intend to confirm sales to any accounts over which they exercise discretionary authority.

 

Commissions and Expenses

 

The underwriting discounts and commissions are equal to 7% of the initial public offering price.

 

The following table shows the price per share and total initial public offering price, underwriting discounts and commissions, and proceeds before expenses to us. The total amounts are shown assuming both no exercise and full exercise of the underwriters’ over-allotment option.

 

          Total  
    Per Share     No Exercise of Over-allotment Option     Full Exercise of Over-allotment Option  
Initial public offering price   $       $       $    
                         
Underwriting discounts and commissions to be paid by us   $       $       $    
                         
Proceeds, before expenses, to us   $       $       $    

 

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We will also pay to the Representative by deduction from the net proceeds of the offering contemplated herein, a non-accountable expense allowance equal to 1% of the gross proceeds received by us from the sale of the shares.

 

We have agreed to reimburse the Representative up to a maximum of $150,000 for out-of-pocket accountable expenses (including the legal fees and other disbursements as disclosed below). We will pay expense deposits of $70,000 to the Representative for its anticipated out-of-pocket expenses. Any expense deposits will be returned to us to the extent the Representative’s out-of-pocket accountable expenses are not actually incurred in accordance with FINRA Rule 5110(f)(2)(C).

 

We have agreed to pay all expenses relating to the offering, including, but not limited to, (i) all filing fees and communication expenses relating to the registration of the shares to be sold in this offering with the SEC and the filing of the offering materials with FINRA; (ii) up to $150,000 towards accountable expenses of the Representative, including, but not limited to, (a) legal fees incurred by the Representative, (b) all reasonable travel and lodging expenses incurred by the Representative or its counsel in connection with visits to, and examinations of, our company, (c) translation costs for due diligence purposes, and (d) reasonable costs for road show meetings, including the costs of informational meetings at the offices of the Representative (iv) all fees, expenses and disbursements relating to the registration or qualification of the shares under the “blue sky” securities laws of such states and other jurisdictions as the Representative may reasonably designate (including, without limitation, all filing and registration fees, and the reasonable fees and disbursements of Representative’s counsel); (v) the costs of all mailing and printing of the placement documents, registration statements, prospectuses and all amendments, supplements and exhibits thereto and as many preliminary and final prospectuses as the Representative may reasonably deem necessary; (vi) the costs of preparing, printing and delivering certificates representing the shares and the fees and expenses of the transfer agent for such shares; and (vii) the costs associated with “tombstone” advertisements, not to exceed $8,000.

 

We estimate that the total expenses of the offering payable by us, excluding the underwriting discounts and commissions and non-accountable expense allowance, will be approximately $1.5 million, including a maximum aggregate reimbursement of $150,000 of the Representative’s accountable expenses.

 

We have agreed that for a period of 18 months from the closing of this offering, the Representative will have a right of first refusal to act as manager with respect to any public or private sale of any of our securities or any of our subsidiaries’ securities or other financings; provided, however, that such right shall be subject to FINRA Rule 5110(f)(2). In connection with such right, we have agreed to furnish the Representative with the terms and conditions of any financing and/or bona fide proposed private or public sale of securities to be made by us and/or any of our subsidiaries, and the name and address of such person, entity, or Representative.

 

In addition, we have agreed, until the effectiveness of the registration statement in connection with this offering, not to negotiate with any other broker-dealer relating to a possible private and/or public offering of our securities without the written consent of the Representative. If we do not complete the offering and listing of the securities on a national securities exchange and enter into discussions regarding a letter of intent or similar agreement with a third party broker-dealer and enter into a new engagement letter, and/or effect a private and/or public offering of the securities with another broker-dealer or any other person without the written consent of the Representative, prior to the 12 month period following the effective date of our letter of intent with the Representative, we will be liable to the Representative for the accountable expenses of the Representative and $150,000; provided, however, that such fees shall be subject to FINRA Rule 5110(f)(2) and shall not apply if and to the extent the Representative has advised us of the Representative’s inability or unwillingness to proceed with this offering.

 

For a period of one year from the effective date of the registration statement of which this prospectus forms a part, the Representative shall have the right to send a representative to observe each meeting of our board of directors; provided, that (i) such representative shall sign a Regulation FD compliant confidentiality agreement which is reasonably acceptable to the Company and its counsel; and (ii) upon written notice to the Representative, we may exclude such representative from meetings where, upon the written opinion of our counsel, such representative’s presence would compromise an attorney-client privilege.

 

The address of the Representative 7280 W. Palmetto Park Road, Suite 310, Boca Raton, Florida 33433.

 

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Underwriters’ Warrants

 

In addition, we have agreed to issue the underwriters’ warrants to the Representative to purchase up to an aggregate number of ordinary shares equal to 8% of the total number of ordinary shares sold in this offering. Such warrants shall have an exercise price equal to 110% of the public offering price of the ordinary shares sold in this offering. The underwriters’ warrants may be purchased in cash or via cashless exercise, will be exercisable for five years from the effective date of the registration statement of which this prospectus forms a part and will terminate on the fifth anniversary of the effective date of the registration statement of which this prospectus forms a part. The underwriters’ warrants and the underlying shares will be deemed compensation by FINRA, and therefore will be subject to FINRA Rule 5110(g)(1). In accordance with FINRA Rule 5110(g)(1), and except as otherwise permitted by FINRA rules, neither the underwriters’ warrants nor any of our shares issued upon exercise of the underwriters’ warrants may be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such securities by any person, for a period of 180 days immediately following the effective date of the registration statement of which this prospectus forms a part. In addition, although the underwriters’ warrants and the underlying ordinary shares will be registered in the registration statement of which this prospectus forms a part, we have also agreed that the underwriters’ warrants will provide for registration rights in certain cases. These registration rights apply to all of the securities directly and indirectly issuable upon exercise of the underwriters’ warrants. The piggyback registration right provided will not be greater than seven years from the effective date of the offering in compliance with FINRA Rule 5110(f)(2)(G)(v).

 

We will bear all fees and expenses attendant to registering the ordinary shares underlying the underwriters’ warrants, other than any underwriting commissions incurred and payable by the warrant holders. The exercise price and number of ordinary shares issuable upon exercise of the underwriters’ warrants may be adjusted in certain circumstances, including in the event of a stock dividend, extraordinary cash dividend or our recapitalization, reorganization, merger or consolidation. The warrant exercise price and/or underlying shares may also be adjusted for issuances of ordinary shares at a price below the warrant exercise price.

 

Indemnification; Indemnification Escrow

 

We have agreed to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act and liabilities arising from breaches of representations and warranties contained in the underwriting agreement, or to contribute to payments that the underwriters may be required to make in respect of those liabilities.

 

We have agreed with the underwriters to establish an escrow account with a third-party escrow agent in the United States and to fund such account with $600,000 from the net proceeds of this offering. Such account may be utilized by the underwriters to fund any bona fide indemnification claims of the underwriters arising during the 24 month period following the closing of this offering. All funds that are not subject to an indemnification claim will be returned to us after the applicable period expires. We will pay the reasonable fees and expenses of the escrow agent.

 

Lock-Up Agreements

 

Our officers, directors and certain shareholders have agreed, subject to certain exceptions, to a twelve (12) month “lock-up” period from the date of this prospectus with respect to the ordinary shares that they beneficially own, including the issuance of shares upon the exercise of convertible securities and options that are currently outstanding or which may be issued. This means that, for a period of twelve (12) months following the date of this prospectus, such persons may not offer, sell, pledge or otherwise dispose of these securities without the prior written consent of the Representative.

 

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The Representative has no present intention to waive or shorten the lock-up period; however, the terms of the lock-up agreements may be waived at its discretion. In determining whether to waive the terms of the lock-up agreements, the Representative may base its decision on its assessment of the relative strengths of the securities markets and companies similar to ours in general, and the trading pattern of, and demand for, our securities in general.

 

Listing

 

We have applied to have our ordinary shares listed on NASDAQ under the symbol “DFWH”. We make no representation that such application will be approved or that our ordinary shares will trade on such market either now or at any time in the future. However, we will not complete this offering unless we are so listed.

 

Electronic Offer, Sale and Distribution

 

A prospectus in electronic format may be made available on websites or through other online services maintained by the underwriters or selling group members, if any, or by their affiliates, and the underwriters may distribute prospectus electronically. The underwriters may agree to allocate a number of ordinary shares to selling group members for sale to their online brokerage account holders. The ordinary shares to be sold pursuant to internet distributions will be allocated on the same basis as other allocations. Other than the prospectus in electronic format, the information on, or that can be accessed through, these websites and any information contained in any other website maintained by these entities is not part of, and is not incorporated by reference into, this prospectus or the registration statement of which this prospectus forms a part, has not been approved and/or endorsed by us or the underwriters, and should not be relied upon by investors.

 

In connection with this offering, certain of the underwriters or securities dealers may distribute prospectuses by electronic means, such as e-mail.

 

Passive Market Making

 

Any underwriter who is a qualified market maker on NASDAQ may engage in passive market making transactions on NASDAQ, in accordance with Rule 103 of Regulation M under the Exchange Act, during a period before the commencement of offers or sales of the shares and extending through the completion of the distribution. Passive market makers must comply with applicable volume and price limitations and must be identified as a passive market maker. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security. If all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.

 

Pricing of this Offering

 

Prior to this offering, there has been no public market for our ordinary shares. The initial public offering price for our ordinary shares will be determined through negotiations between us and the Representative. Among the factors to be considered in these negotiations will be prevailing market conditions, our financial information, market valuations of other companies that we and the representative believe to be comparable to us, estimate of our business potential and earning prospects, the present state of our development and other factors deemed relevant. The initial public offering price of our ordinary shares in this offering does not necessarily bear any direct relationship to the assets, operations, book or other established criteria of value of our company.

 

Potential Conflicts of Interest

 

The underwriters and their affiliates may, from time to time, engage in transactions with and perform services for us in the ordinary course of their business for which they may receive customary fees and reimbursement of expenses. In the ordinary course of their various business activities, the underwriters and their affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own accounts and for the accounts of their customers and such investment and securities activities may involve securities and/or instruments of our Company. The underwriters and their affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or instruments and may at any time hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments. 

 

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No Sales of Similar Securities

 

We have agreed not to offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any ordinary shares or any securities convertible into or exercisable or exchangeable for ordinary shares or enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of our ordinary shares, whether any such transaction is to be settled by delivery of ordinary shares or such other securities, in cash or otherwise, without the prior written consent of the representative, for a period of 180 days from the date of this prospectus.

 

Selling Restrictions

 

Other than in the United States, no action may be taken, and no action has been taken, by us or the underwriters that would permit a public offering of the ordinary shares offered by, or the possession, circulation or distribution of, this prospectus in any jurisdiction where action for that purpose is required. The ordinary shares offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such shares be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any ordinary shares offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.

 

In addition to the offering of the ordinary shares in the United States, the underwriters may, subject to applicable foreign laws, also offer the ordinary shares in certain countries.

 

Stamp Taxes

 

If you purchase ordinary shares offered by this prospectus, you may be required to pay stamp taxes and other charges under the laws and practices of the country of purchase, in addition to the initial public offering price listed on the cover page of this prospectus.

 

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Price Stabilization, Short Positions and Penalty Bids

 

Until the distribution of the ordinary shares offered by this prospectus is completed, rules of the SEC may limit the ability of the underwriters to bid for and to purchase our ordinary shares. As an exception to these rules, the underwriters may engage in transactions effected in accordance with Regulation M under the Exchange Act that are intended to stabilize, maintain or otherwise affect the price of our ordinary shares. The underwriters may engage in over-allotment sales, syndicate covering transactions, stabilizing transactions and penalty bids in accordance with Regulation M.

 

Stabilizing transactions consist of bids or purchases made by the managing underwriter for the purpose of preventing or slowing a decline in the market price of our securities while this offering is in progress.
Short sales and over-allotments occur when the managing underwriter, on behalf of the underwriting syndicate, sells more of our shares than they purchase from us in this offering. In order to cover the resulting short position, the managing underwriter may exercise the overallotment option described above and/or may engage in syndicate covering transactions. There is no contractual limit on the size of any syndicate covering transaction. The underwriters will deliver a prospectus in connection with any such short sales. Purchasers of shares sold short by the underwriters are entitled to the same remedies under the federal securities laws as any other purchaser of units covered by the registration statement.
Syndicate covering transactions are bids for or purchases of our securities on the open market by the managing underwriter on behalf of the underwriters in order to reduce a short position incurred by the managing underwriter on behalf of the underwriters.
A penalty bid is an arrangement permitting the managing underwriter to reclaim the selling concession that would otherwise accrue to an underwriter if the ordinary shares originally sold by the underwriter were later repurchased by the managing underwriter and therefore were not effectively sold to the public by such underwriter.

 

Stabilization, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market price of our ordinary shares or preventing or delaying a decline in the market price of our ordinary shares. As a result, the price of our ordinary shares may be higher than the price that might otherwise exist in the open market.

 

Neither we nor the underwriters make any representation or prediction as to the effect that the transactions described above may have on the prices of our ordinary shares. These transactions may occur on NASDAQ or on any trading market. If any of these transactions are commenced, they may be discontinued without notice at any time.

 

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Notice to Prospective Investors in Hong Kong

 

The contents of this prospectus have not been reviewed by any regulatory authority in Hong Kong. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this prospectus, you should obtain independent professional advice. Please note that (i) our shares may not be offered or sold in Hong Kong, by means of this prospectus or any document other than to “professional investors” within the meaning of Part I of Schedule 1 of the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) (SFO) and any rules made thereunder, or in other circumstances which do not result in the document being a “prospectus” within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap.32, Laws of Hong Kong) (CO) or which do not constitute an offer or invitation to the public for the purpose of the CO or the SFO, and (ii) no advertisement, invitation or document relating to our shares may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to the shares which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the SFO and any rules made thereunder.

 

Notice to Prospective Investors in the People’s Republic of China

 

This prospectus may not be circulated or distributed in the PRC and the shares may not be offered or sold, and will not offer or sell to any person for re-offering or resale directly or indirectly to any resident of the PRC except pursuant to applicable laws, rules and regulations of the PRC. For the purpose of this paragraph only, the PRC does not include Taiwan and the special administrative regions of Hong Kong and Macau.

 

116

 

 

EXPENSES RELATING TO THIS OFFERING

 

Set forth below is an itemization of the total expenses, excluding underwriting discounts and commissions and non-accountable expense allowance, that we expect to incur in connection with this offering. With the exception of the SEC registration fee, the Financial Industry Regulatory Authority, or FINRA, filing fee and the NASDAQ listing fee, all amounts are estimates.

 

SEC registration fee   $ 1,624  
NASDAQ listing fee     55,000  
FINRA filing fee     2,000  
Printing and engraving expenses     8,851  
Legal fees and expenses     730,111  
Accounting fees and expenses     420,797  
Transfer agent and registrar fee and expenses     1,200  
Miscellaneous     261,973  
         
Total   $ 1,481,556  

  

These expenses will be borne by us. Underwriting discounts and commissions will be borne by us in proportion to the numbers of ordinary shares sold in the offering.

 

LEGAL MATTERS

 

The Company is being represented by Foster Garvey P.C. with respect to legal matters of United States federal securities law. The validity of the ordinary shares offered by this prospectus and legal matters as to Cayman Islands law will be passed upon for us by Maples and Calder (Hong Kong) LLP.   The Company is being represented by Allbright Law Offices with regard to PRC law. Foster Garvey P.C. may rely upon Maples and Calder (Hong Kong) LLP with respect to all matters governed by Cayman Islands law, and may rely upon Allbright Law Offices with respect to matters governed by PRC law. Certain legal matters will be passed upon for the underwriters by K&L Gates LLP.

 

EXPERTS

 

The consolidated financial statements as of December 31, 2018 and for the year ended December 31, 2018 included in this prospectus have been so included in reliance on the report of Wei, Wei & Co., LLP , an independent registered public accounting firm, given on the authority of said firm as an expert in accounting and auditing.

 

The office of Wei, Wei & Co., LLP is located at 133-10 39th Avenue Flushing, New York 11354.

 

WHERE YOU CAN FIND ADDITIONAL INFORMATION

 

We have filed with the SEC a registration statement on Form F-1 under the Securities Act with respect to the ordinary shares described herein. This prospectus, which constitutes part of the registration statement, does not include all of the information contained in the registration statement. You should refer to the registration statement and its exhibits for additional information. Whenever we make reference in this prospectus to any of our contracts, agreements or other documents, the references are not necessarily complete and you should refer to the exhibits attached to the registration statement for copies of the actual contract, agreement or other document. We anticipate making these documents publicly available, free of charge, on our website at www.dfwhgroup.com as soon as reasonably practicable after filing such documents with the SEC. The information on, or that can be accessed through, our website is not incorporated by reference into this prospectus and should not be considered to be a part of this prospectus. We have included our website address as an inactive textual reference only.

 

You can read the registration statement and our future filings with the SEC, over the Internet at the SEC’s web site at http://www.sec.gov. You may also read and copy any document that we file with the SEC at its public reference room at 100 F Street, N.E., Washington, DC 20549.

 

You may also obtain copies of the documents at prescribed rates by writing to the Public Reference Section of the SEC at 100 F Street, N.E., Washington, DC 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference room.

 

117

 

 

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS

 

Year Ended December 31, 2018  
Report of Independent Registered Public Accounting Firm F-2
Consolidated Financial Statements  
Consolidated Balance Sheet F-3
Consolidated Statement of Income and Other Comprehensive Income F-4
Consolidated Statement of Shareholders’ Equity F-5
Consolidated Statement of Cash Flows F-6
Notes to Consolidated Financial Statements F-7
   

Six Months Ended June 30, 2019 and June 30, 2018 

 
Unaudited interim condensed consolidated balance sheets as of June 30, 2019 and December 31, 2018 F-33
Unaudited interim condensed consolidated statements of operations and comprehensive income (loss) for the six months ended June 30, 2019 and 2018 F-34
Unaudited interim condensed consolidated statements of changes in shareholders’ equity for the six months ended June 30, 2019 and 2018 F-35
Unaudited interim condensed consolidated statements of cash flows for the six months ended June 30, 2019 and 2018 F-36
Notes to unaudited interim condensed consolidated financial statements for the six months ended June 30, 2019 and 2018 F-37

 

F-1

 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors and Shareholders

Oriental Culture Holding LTD

 

Opinion on the Financial Statements

 

We have audited the accompanying consolidated balance sheet of Oriental Culture Holding LTD and subsidiaries (the “Company”) as of December 31, 2018, and the related consolidated statements of income and other comprehensive income, shareholders’ equity, and cash flows for the year then ended, and the related notes (collectively referred to as the financial statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018, and the results of its operations and its cash flows for the year then ended, in conformity with accounting principles generally accepted in the United States of America.

 

Basis for Opinion

 

These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

 

Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provide a reasonable basis for our opinion.

 

/s/ Wei, Wei & Co., LLP

We have served as the Company’s auditor since 2019.

 

Flushing, New York

May 13, 2019

 

F-2

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

CONSOLIDATED BALANCE SHEET

 

    December 31,  
    2018  
ASSETS      
CURRENT ASSETS      
Cash and cash equivalents   $ 2,016,858  
Accounts receivable     921,713  
Accounts receivable - related parties     12,721  
Other receivables     431,568  
Prepaid expenses     19,311  
Total current assets     3,402,171  
         
PROPERTY AND EQUIPMENT, NET     282,306  
         
OTHER ASSETS        
Security deposits     15,375  
Equity method investment     569,142  
Intangible assets, net     128,360  
Deferred offering costs     99,838  
Total other assets     812,715  
         
Total assets   $ 4,497,192  
         
LIABILITIES AND SHAREHOLDERS’ EQUITY        
         
CURRENT LIABILITIES        
Accounts payable   $ 13,750  
Accounts payable - related party     258,406  
Deferred revenue     823,290  
Other payables and accrued liabilities     388,266  
Rent payable - related party     130,842  
Other payables - related party     67,882  
Taxes payable     166,581  
Total current liabilities     1,849,017  
         
Total liabilities     1,849,017  
         
COMMITMENTS AND CONTINGENCIES        
         
SHAREHOLDERS’ EQUITY        
Preferred shares, $0.00005 par value, 100,000,000 shares authorized, 0 shares issued and outstanding as of December 31, 2018*     -  
Ordinary shares, $0.00005 par value, 900,000,000 shares authorized, 20,000,000 shares issued and outstanding as of December 31, 2018**     1,000  
Treasury shares, at cost, 2,500,000 shares as of December 31, 2018***     (125 )
Additional paid-in capital     112,424  
Statutory reserves     73,348  
Retained earnings     2,550,790  
Accumulated other comprehensive loss     (89,262 )
Total shareholders’ equity     2,648,175  
         
Total liabilities and shareholders’ equity   $ 4,497,192  

 

* given retroactive effect to re-designation of preferred shares on September 12, 2019.

 

** given retroactive effect to 2-for-1 forward stock split to authorized and issued and outstanding shares.

 

*** given retroactive effect to the surrender of an aggregate of 12.5% of our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

 

The accompanying notes are an integral part of these consolidated financial statements.

 

F-3

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

CONSOLIDATED STATEMENT OF INCOME AND OTHER COMPREHENSIVE INCOME

 

    For the Year Ended  
    December 31,
2018
 
       
OPERATING REVENUES:      
Revenues   $ 5,308,896  
Revenues - related parties     83,369  
Sales taxes     (39,565 )
Total operating revenues, net     5,352,700  
         
COST OF REVENUES        
Cost of revenues     (247,073 )
Cost of revenues - related party     (253,302 )
Total cost of revenues     (500,375 )
         
GROSS PROFIT     4,852,325  
         
OPERATING EXPENSES:        
Selling and marketing expenses     (1,613,798 )
Selling and marketing expenses – related party     (13,690 )
General and administrative expenses     (557,689 )
Total operating expenses     (2,185,177 )
         
INCOME FROM OPERATIONS     2,667,148  
         
OTHER INCOME (EXPENSE)        
Loss from equity investment     (43,075 )
Other income, net     65  
Total other expenses, net     (43,010 )
         
INCOME BEFORE INCOME TAXES     2,624,138  
         
PROVISION FOR INCOME TAX     -  
         
NET INCOME   $ 2,624,138  
         
OTHER COMPREHENSIVE INCOME(LOSS)        
Foreign currency translation adjustment     (89,262 )
         
COMPREHENSIVE INCOME   $ 2,534,876  
         
WEIGHTED AVERAGE NUMBER OF ORDINARY SHARES        
Basic and diluted*     17,500,000  
         
EARNINGS PER SHARE        
Basic and diluted*   $ 0.15  

 

* given retroactive effect to 2-for-1 forward stock split to authorized and issued and outstanding shares as well as the surrender of 12.5% of our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

 

The accompanying notes are an integral part of these consolidated financial statements.

 

F-4

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

CONSOLIDATED STATEMENT OF SHAREHOLDERS’ EQUITY

 

                                        Additional           Accumulated
other
       
    Preferred Stock     Ordinary shares     Treasury Stock     paid-in     Statutory     Retained     comprehensive        
    Shares*     Par Value     Shares***     Par Value     Shares***     Par Value     capital     reserves     earnings     loss     Total  
BALANCE, JANUARY 1, 2018     -     $ -       -     $ -       -     $ -     $ -     $ -     $ -     $ -     $ -  
Issuance of ordinary shares     -       -       20,000,000       1,000       (2,500,000 )     (125 )     112,424       -       -       -       113,299  
Net income     -       -       -       -       -       -       -       73,348       2,550,790       -       2,624,138  
Foreign currency translation     -       -       -       -       -       -       -       -       -       (89,262 )     (89,262 )
BALANCE, DECEMBER 31, 2018     -     $ -       20,000,000     $ 1,000       (2,500,000 )   $ (125 )   $ 112,424     $ 73,348     $ 2,550,790     $ (89,262 )   $ 2,648,175  

 

* given retroactive effect to re-designation of preferred shares on September 12, 2019.

 

** given retroactive effect to 2-for-1 forward stock split to authorized and issued and outstanding shares.

 

*** given retroactive effect to the surrender of an aggregate of 12.5% of  our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

 

The accompanying notes are an integral part of these consolidated financial statements.

 

F-5

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

CONSOLIDATED STATEMENT OF CASH FLOWS

 

    For the Year Ended  
    December 31,
2018
 
CASH FLOWS FROM OPERATING ACTIVITIES:      
Net income   $ 2,624,138  
Adjustments to reconcile net income to net cash provided by operating activities:        
Depreciation and amortization     40,857  
Loss from equity investment     43,075  
Change in operating assets and liabilities:        
(Increase) in accounts receivables     (957,718 )
(Increase) in accounts receivables - related parties     (13,218 )
(Increase) in other receivables     (21,008 )
(Increase) in prepaid expenses     (19,769 )
(Increase) in security deposits     (15,362 )
Increase in accounts payable     14,287  
Increase in accounts payable - related party     268,500  
Increase in deferred revenue     855,451  
Increase in other payables and accrued liabilities     403,433  
Increase in rent payable - related party     135,954  
Increase in taxes payable     173,089  
Net cash provided by operating activities     3,531,709  
         
CASH FLOWS FROM INVESTING ACTIVITIES:        
Equity investment in ZHONGCANG     (1,038,017 )
Purchase of property, plant and equipment     (308,751 )
Purchase of intangible assets     (153,765 )
Net cash used in investing activities     (1,500,533 )
         
CASH FLOWS FROM FINANCING ACTIVITIES:        
Capital contribution     113,299  
Proceeds from other payables - related party     67,822  
Deferred offering costs     (103,739 )
Net cash provided by financing activities     77,382  
         
EFFECT OF EXCHANGE RATE ON CASH     (91,700 )
         
INCREASE IN CASH     2,016,858  
         
CASH AND CASH EQUIVALENTS, beginning of year     -  
         
CASH AND CASH EQUIVALENTS, end of year   $ 2,016,858  
         
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:        
Cash paid for income tax   $ -  
Cash paid for interest expense   $ -  
         
SUPPLEMENTAL NON CASH INVESTING ACTIVITY        
Receivable from sale of equity investment   $ 427,419  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

F-6

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Note 1 – Nature of business and organization

 

Oriental Culture Holding LTD (“Oriental Culture”) is a holding company incorporated on November 29, 2018, under the laws of the Cayman Islands.

 

Oriental Culture has no substantial operations other than holding all of the outstanding share capital of Oriental Culture Development (“Oriental Culture BVI”) and China International Assets and Equity of Artworks Exchange Limited (“International Culture”). Oriental Culture BVI is also a holding company holding all of the outstanding share capital of HK Oriental Culture Investment Development Limited (“Oriental Culture HK”). Oriental Culture HK is also a holding company holding all of the outstanding equity of Nanjing Rongke Business Consulting Service Co., Ltd. (“Oriental Culture WFOE” or “WFOE”).

 

The Company, through its direct subsidiary Oriental Culture HK and variable interest entity (“VIE”), Jiangsu Yanggu Culture Development Co., Ltd. (“Jiangsu Yanggu”), and Jiangsu Yanggu’s subsidiaries and International Culture are engaged in providing online platform in facilitating e-commerce of artwork trading. The Company’s headquarters are located in the city of Nanjing, in the People’s Republic of China (the “PRC” or “China”). All of the Company’s business activities are carried out by Oriental Culture HK, Jiangsu Yanggu and Jiangsu Yanggu’s subsidiaries.

 

On May 8, 2019, Oriental Culture completed its reorganization of entities under the common control of various shareholders, who collectively owned 100% of the equity interests of Oriental Culture prior to the reorganization. Oriental Culture, Oriental Culture BVI, and Oriental Culture HK were established as the holding companies of Oriental Culture WFOE. Oriental Culture WFOE is the primary beneficiary of Jiangsu Yanggu and its subsidiaries. Prior to the reorganization, Jiangsu Yanggu and International Exchange were under common control, as the same group of shareholders held more than 50% of the voting ownership interest of each entity, and contemporaneous written evidence of agreements to vote a majority of the entities’ shares in concert exists. Oriental Culture, International Culture and Jiangsu Yanggu were under common control, which resulted in the consolidation of International Culture and Jiangsu Yanggu, and which has been accounted for as a reorganization of entities under common control at carrying value. The financial statements are prepared on the basis as if the reorganization became effective as of the beginning of the first period presented in the accompanying consolidated financial statements of Oriental Culture. Oriental Culture, its subsidiaries and VIEs are collectively defined to as the “Company” in the accompanying consolidated financial statements of Oriental Culture.

 

On May 9, 2019, the Company acquired all outstanding equity interest of HKDAEx Limited (“HKDAEx”), which provides our customers with an online platform in Hong Kong.

 

Although our financial statements including income statement and statement of cash flows cover the entire year ended December 31, 2018, we did not have any meaningful operation until March 2018.

 

F-7

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Contractual Arrangements

 

In the PRC, investment activities by foreign investors are principally governed by the Guidance Catalog of Industries for Foreign Investment, which was promulgated and is amended from time to time by the PRC Ministry of Commerce, or MOFCOM, and the PRC National Development and Reform Commission, or NDRC. In June 2018, the Guidance Catalog of Industries for Foreign Investment was replaced by the Special Administrative Measures (Negative List) for Foreign Investment Access (2018 Version), or the Negative List. The Negative List divides industries into two categories: restricted and prohibited. Industries not listed in the Negative List are generally open to foreign investment unless specifically restricted by other PRC regulations. Our Company and the WFOE are considered as foreign investors or foreign invested enterprises under PRC law.

 

The Company is a Cayman Islands company and Oriental Culture WFOE is considered a foreign invested enterprise. Although the business we conduct or will conduct through Jiangsu Yanggu is not within the category in which foreign investment is currently restricted under the Negative List or other PRC Laws, we expect that in the future Jiangsu Yanggu will engage in marketing survey services for online marketplaces. Marketing survey services are within the category in which foreign investment is restricted pursuant to the Negative List. In addition, we intend to centralize our management and operations in the PRC to avoid being restricted to conduct certain business activities which are important for our current or future business but are currently restricted or might be restricted in the future. As such, Jiangsu Yanggu is controlled through contractual arrangements in lieu of direct equity ownership by the Company or any of its subsidiaries. Such contractual arrangements are comprised of a series of four agreements (collectively the “Contractual Arrangements”), of which the significant terms are as follows:

 

Contractual Agreements with Jiangsu Yanggu

 

Technical Consultation and Services Agreement

 

Pursuant to the technical consultation and services agreement between Oriental Culture WFOE and Jiangsu Yanggu, Oriental Culture WFOE has the exclusive right to provide consultation and services to Jiangsu Yanggu in the areas of funding, human resources, technology and intellectual property rights. For such services, Jiangsu Yanggu agrees to pay service fees in the amount of 100% of its net income and also has the obligation to absorb 100% of Jiangsu Yanggu’s losses.

 

The WFOE exclusively owns any intellectual property rights arising from the performance of this Technical Consultation and Services Agreement. The term of the Technical Consultation and Service Agreement is 20 years until May 7, 2039. Oriental Culture WFOE may terminate this agreement at any time by giving 30 day’s’ written notice to Jiangsu Yanggu.

 

F-8

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Equity Pledge Agreement

 

Pursuant to the Equity Pledge Agreements among Oriental Culture WFOE, Jiangsu Yanggu and Jiangsu Yanggu’s shareholders dated May 8 2019, each of Jiangsu Yanggu’s shareholders pledged all of its equity interests in Jiangsu Yanggu to Oriental Culture WFOE to guarantee Jiangsu Yanggu’s performance of relevant obligations and indebtedness under the Technical Consultation and Services Agreement and other control agreements. If Jiangsu Yanggu breaches its obligations under the Control Agreement, Oriental Culture WFOE, as pledgee, will be entitled to certain rights, including the right to dispose of the pledged equity interests in order to recover the damages associated with such breach. The pledge shall be continuously valid until all of Jiangsu Yanggu’s shareholders are no longer shareholders of Jiangsu Yanggu, or until the satisfaction of all Jiangsu Yanggu’s obligations under the Control Agreements.

 

Equity Option Agreement

 

Pursuant to the Equity Option Agreement among Oriental Culture WFOE, Jiangsu Yanggu and Jiangsu Yanggu’s shareholders dated May 8, 2019, Oriental Culture WFOE has the exclusive right to require Jiangsu Yanggu’s shareholders to fulfill and complete all approval and registration procedures required under PRC laws for Oriental Culture WFOE to purchase, or designate one or more persons to purchase, each shareholders’ equity interests in Jiangsu Yanggu, in one or multiple transactions, at any time or from time to time, at Oriental Culture WFOE’s sole and absolute discretion. The purchase price shall be the lowest price allowed by PRC laws. The Equity Option Agreement shall remain effective until all the equity interests owned by Jiangsu Yanggu’s shareholders have been legally transferred to Oriental Culture WFOE or its designee(s).

 

Voting Rights Proxy and Financial Supporting Agreements

 

Pursuant to the voting rights proxy and financial supporting agreements, as amended, among the Participating Shareholders of Jiangsu Yanggu and Oriental Culture WFOE, Jiangsu Yanggu’s Participating Shareholders have given Oriental Culture WFOE an irrevocable proxy to act on their behalf on all matters pertaining to Jiangsu Yanggu and to exercise all of their rights as shareholders of Jiangsu Yanggu, including the right to attend shareholders meeting, to exercise voting rights and to transfer all or a part of their equity interests in Jiangsu Yanggu. In consideration of such granted rights, Oriental Culture WFOE agrees to provide the necessary financial support to Jiangsu Yanggu whether or not Jiangsu Yanggu incurs losses, and agrees not to request repayment if Jiangsu Yanggu is unable to do so. The agreements shall remain in effect for 20 years until May 7, 2039.

 

Based on the foregoing contractual arrangements, which grant Oriental Culture WFOE effective control of Jiangsu Yanggu and obligate Oriental Culture WFOE to absorb 100% of the risk of loss from its activities, as well as enable Oriental Culture WFOE to receive 100% of the expected residual returns, the Company accounts for Jiangsu Yanggu and its subsidiaries as VIEs. Accordingly, the Company consolidates the accounts of Jiangsu Yanggu and its subsidiaries for the period since inception herein and from May 8, 2019, the date of which becomes under common control, in accordance with Regulation S-X-3A-02 promulgated by the Securities Exchange Commission (“SEC”), and Accounting Standards Codification (“ASC”) 810-10, Consolidation.

 

F-9

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

The accompanying consolidated financial statements reflect the activities of the Company and each of the following entities:

 

Name   Background   Ownership
China International Assets and Equity of Artworks Exchange Limited (“International Culture”)  

● A Hong Kong company

● Incorporated on November 22, 2013, commenced operations in March 2018.

● Engages in providing online platform in facilitating e-commerce of artwork trading.

 

  100%
Oriental Culture BVI  

● A British Virgin Islands company

● Incorporated on December 6, 2018

  100%
Oriental Culture HK  

● A Hong Kong company

● Incorporated on January 3, 2019

  100% owned by Oriental Culture BVI
Oriental Culture WFOE  

● A PRC limited liability company and deemed a wholly foreign owned enterprise (“WFOE”)

● Incorporated on May 7, 2019

  100% owned by Oriental Culture HK
Jiangsu Yanggu  

● A PRC limited liability company

● Incorporated on August 23, 2017, commenced operations in March 2018.

● Holding company of Nanjing Yanyu and Nanjing Yanqing

  VIE of Oriental Culture WFOE
Nanjing Yanyu Information Technology Co., Ltd. (“Nanjing Yanyu”)  

● A PRC limited liability company

● Incorporated on June 7, 2018

● Provides support services to Jiangsu Yanggu

  100% owned by Jiangsu Yanggu
Nanjing Yanqing Information Technology Co., Ltd. (“Nanjing Yanqing”)  

● A PRC limited liability company

● Incorporated on May 17, 2018

● Holding company of Kashi Longrui and Kashi Dongfang

  100% owned by Jiangsu Yanggu
Kashi Longrui Business Management Service Co., Ltd. (“Kashi Longrui”)  

● A PRC limited liability company

● Incorporated on July 19, 2018

● Provides marketing services to Jiangsu Yanggu

  100% owned by Yanqing
Kashi Dongfang Cangpin Culture Development Co., Ltd. (“Kashi Dongfang”)  

● A PRC limited liability company

● Incorporated on August 29, 2018

● Provides storage services to Jiangsu Yanggu

  100% owned by Yanqing

 

F-10

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Note 2 – Summary of significant accounting policies

 

Basis of presentation

 

The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) and pursuant to the rules and regulations of the Securities Exchange Commission (“SEC”).

 

Principles of consolidation

 

The consolidated financial statements include the accounts of the Company, its subsidiaries, and their VIEs. All intercompany transactions and balances are eliminated upon consolidation.

 

Use of estimates and assumptions

 

The preparation of consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities as of the date of the consolidated financial statements and the reported amounts of revenues and expenses during the periods presented. Significant accounting estimates reflected in the Company’s consolidated financial statements include revenue recognition, cost of revenues, allowance for doubtful accounts, the useful lives of property and equipment and intangible assets and impairment of long-lived assets. Actual results could differ from these estimates.

 

F-11

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Foreign currency translation and transaction

 

The reporting currency of the Company is the U.S. dollar. In China, the Company conducts its businesses in the local currency, Renminbi (RMB), as its functional currency. Assets and liabilities are translated at the unified exchange rate as quoted by the People’s Bank of China at the end of the period. The statements of income and cash flows are translated at the average translation rates and the equity accounts are translated at historical rates. Translation adjustments resulting from this process are included in accumulated other comprehensive income (loss). Transaction gains and losses that arise from exchange rate fluctuations on transactions denominated in a currency other than the functional currency are included in the results of operations as incurred.

 

Translation adjustments were included in accumulated other comprehensive income (loss). The balance sheet amounts, with the exception of shareholder’s equity at December 31, 2018 were translated at 6.88 RMB and 7.83 HKD to $1.00. The shareholder’s equity accounts were translated at their historical rates. The average translation rates applied to the consolidated statements of income and cash flows for the year ended December 31, 2018 were 6.62 RMB and 7.84 HKD. Amounts reported on the statement of cash flows will not necessarily agree with changes in the corresponding balances on the consolidated balance sheet.

 

Fair value measurement

 

The accounting standards regarding fair value of financial instruments and related fair value measurements defines financial instruments and requires disclosure of the fair value of financial instruments held by the Company.

 

The accounting standards define fair value, establish a three-level valuation hierarchy for disclosures of fair value measurements and enhance disclosure requirements for fair value measures. The three levels are defined as follow:

 

  Level 1 inputs to the valuation methodology are quoted prices (unadjusted) for identical assets or liabilities in active markets.
  Level 2 inputs to the valuation methodology include quoted prices, other than those included in Level 1 for similar assets and liabilities in active markets, and inputs that are observable for the assets or liability, either directly or indirectly, for substantially the full term of the financial instruments.
 

Level 3 inputs to the valuation methodology are unobservable and significant to the fair value.

 

The carrying amounts included in current assets and current liabilities are reported in the consolidated balance sheet approximate their fair values because of the short term nature of such instrument.

 

F-12

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Cash and cash equivalents

 

Cash and cash equivalents consist of cash on hand and demand deposits placed with banks which are unrestricted as to immediate withdrawal and use. Cash and cash equivalents also consist of funds which were held at a third party platform fund accounts which are unrestricted as to immediate withdrawal and use.

 

Accounts receivable (including related parties)

 

Accounts receivable represented amounts due from the Company’s customers. An allowance for doubtful accounts may be established and recorded based on management’s assessment of potential losses based on the credit history and relationships with the customers. Management reviews its receivables on a regular basis to determine if the allowance for doubtful accounts is adequate, and adjusts the allowance when necessary. Delinquent account balances are written-off against the allowance for doubtful accounts after management has determined that the likelihood of collection is not probable. No allowance was required as of December 31, 2018.

 

Other receivables

 

Other receivables represented employee advances to pay certain of the Company’s expenses in the normal course of business, receivable from disposal of equity investment and rental security deposits. An allowance for doubtful accounts may be established and recorded based on management’s assessment on the likelihood of collection. Management reviews its receivables on a regular basis to determine if the allowance for doubtful accounts is adequate, and adjusts the allowance when necessary. Delinquent account balances are written-off against the allowance for doubtful accounts after management has determined that the likelihood of collection is not probable. No allowance was required as of December 31, 2018.

 

Prepaid expenses

 

Prepaid expenses represented advance payments made to its vendors for certain prepaid services such as agency fees and prepaid rent for our office.

 

F-13

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Property and equipment

 

Property and equipment are stated at cost less accumulated depreciation and amortization. Depreciation and amortization is computed using the straight-line method after consideration of the estimated useful lives and estimated residual value. The estimated useful lives are as follows:

 

    Useful Life   Estimated Residual Value  
Office equipment and furnishings   5 years              -  
Electronic equipment  

5 years

             -  
Server room equipment   5 years              -  

 

The cost and related accumulated depreciation and amortization of assets sold or otherwise retired are eliminated from the accounts and any gain or loss is included in the consolidated statements of income and other comprehensive income (loss). Expenditures for maintenance and repairs are charged to expense as incurred, while additions, renewals and betterments, which are expected to extend the useful life of assets, are capitalized. The Company also re-evaluates the periods of depreciation and amortization to determine whether subsequent events and circumstances warrant revised estimates of useful lives.

 

Intangible Assets, net

 

Intangible assets, net, are stated at cost, less accumulated amortization. Amortization expense is recognized on the straight-line basis over the estimated useful lives of the assets as follows:

 

Classification   Estimated Useful Life  
Artwork trading platform   5 years  
Software   5 years  

 

Impairment for long-lived assets

 

Long-lived assets, including property and equipment with finite lives are reviewed for impairment whenever events or changes in circumstances (such as a significant adverse change to market conditions that will impact the future use of the assets) indicate that the carrying value of an asset may not be recoverable. The Company assesses the recoverability of the asset based on the undiscounted future cash flows the asset is expected to generate and recognize an impairment loss when estimated discounted future cash flows expected to result from the use of the asset plus net proceeds expected from disposition of the asset, if any, are less than the carrying value of the asset. If an impairment is identified, the Company reduces the carrying amount of the asset to its estimated fair value based on a discounted cash flow approach or, when available and appropriate, to comparable market values. As of December 31, 2018, no impairment of long-lived assets was recognized.

 

F-14

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Equity method investment

 

Entities in which the Company has the ability to exercise significant influence, but does not have a controlling interest, are accounted for using the equity method. Significant influence is generally considered to exist when the Company has voting shares representing 20% to 50%, and other factors, such as representation on the Board of Directors, voting rights and the impact of commercial arrangements, are considered in determining whether the equity method of accounting is appropriate. Under this method of accounting, the Company records its proportionate share of the net earnings or losses of equity method investees and a corresponding increase or decrease to the investment balances. Dividends received from the equity method investments are recorded as reductions in the cost of such investments.

 

Long-term investments are evaluated for impairment when facts or circumstances indicate that the fair value of the long-term investment is less than its carrying value. An impairment loss is recognized when a decline in fair value is determined to be other-than-temporary. The Company reviews several factors to determine whether a loss is other-than-temporary. These factors include, but are not limited to, the: (i) nature of the investment; (ii) cause and duration of the impairment; (iii) extent to which fair value is less than cost; (iv) financial condition and near term prospects of the investment; and (v) ability to hold the security for a period of time sufficient to allow for any anticipated recovery in fair value. No events have occurred that indicated an other-than-temporary impairment existed and therefore the Company did not record any impairment charges for its investments for the year ended December 31, 2018.

 

Deferred revenue

 

Payments received from customers before all of the relevant criteria for revenue recognition are recorded as deferred revenue.

 

Revenue recognition

 

The Company is an online provider of artwork e-commerce services, which allows artists and art dealers and owners to access the art trading market with a wider range of artwork investors through our platforms. We currently facilitate trading by individual customers of stamps, coins, and all kinds of artwork and commodities on our online platforms owned by our subsidiaries in Hong Kong,

 

The Company generates revenue from its services in connection with the trading of artwork on its platform, primarily consisting of listing service fees, transaction fees and other revenues collected from traders (the Company’s customers).

 

Revenue is recognized when all of the following have occurred: (i) persuasive evidence of an arrangement exists, (ii) delivery has occurred or services have been rendered, (iii) the price or fees are fixed or determinable, and (iv) the ability to collect is reasonably assured. Revenue is presented in the consolidated statements of income and comprehensive income net of sales taxes.

 

F-15

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Listing service fees

 

One-time nonrefundable listing service fees are collected from traders for listing their products on the platform. The Company recognizes listing services fee ratably over the estimated period of the listing. The fees are determined by contracts with the customers as a fixed percentage of the listing price.

 

Transaction fee revenue

 

Transaction fee revenue is generally calculated based on the transaction value of artwork per transaction. Transaction value is the dollar amount of the purchase and sale of the artwork after they are listed on the Company’s platform. Transaction fee revenue is recognized when the transaction is completed.

 

Transaction fee revenue also includes predetermined monthly transaction fees for select traders with large transactions and are negotiated on a case by case basis. Predetermined transaction fees are recognized and earned over the specified service period.

 

Predetermined transaction fees received in advance of the specified service period are recorded as deferred revenue.

 

Marketing service fees

 

Marketing service fee are service fees for promoting and marketing our customers’ artwork. Marketing service fee are determined by contract and are amortized over the service period.

 

Other revenues

 

Other revenues (including $32,065 to related parties) primarily includes other service fees for information technology consulting services. Other revenue is negotiated on a case by case basis and is recognized when the related services have been performed based on the specific terms of the contract.

 

F-16

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Cost of revenues

 

Cost of revenues consist of compensation including social welfare and benefits for our IT team, online cloud service fees, storage fees, depreciation and amortization of hardware and software for our trading platform.

 

Income taxes

 

The Company accounts for income taxes in accordance with U.S. GAAP for income taxes. Under the asset and liability method as required by this accounting standard, the recognition of deferred income tax assets and liabilities for the expected future tax consequences of temporary differences between the income tax basis and financial reporting basis of assets and liabilities. Provision for income taxes consists of taxes currently due plus deferred taxes.

 

The charge for taxation is based on the results for the fiscal year as adjusted for items, which are non-assessable or disallowed. It is calculated using tax rates that have been enacted or substantively enacted by the balance sheet date.

 

Deferred taxes are accounted for using the asset and liability method in respect of temporary differences arising from differences between the carrying amount of assets and liabilities in the consolidated financial statements and the corresponding tax basis used in the computation of assessable tax profit. Deferred tax liabilities are recognized for all future taxable temporary differences. Deferred tax assets are recognized to the extent that it is probable that taxable income will be available against which deductible temporary differences can be utilized. Deferred tax is calculated using tax rates that are expected to apply to the period when the asset is realized or the liability is settled.

 

Deferred tax is charged or credited in the operations of statement, except when it is related to items credited or charged directly to equity. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized. Current income taxes are provided for in accordance with the laws of the relevant taxing authorities.

 

An uncertain tax position is recognized as a benefit only if it is “more likely than not” that the tax position would be sustained in a tax examination, with a tax examination being presumed to occur. The amount recognized is the largest amount of tax benefit that is greater than 50% likely of being realized on examination. For tax positions not meeting the “more likely than not” test, no tax benefit is recorded. Penalties and interest incurred related to underpayment of income tax are classified as income tax expense in the period incurred. PRC tax returns filed in 2018 are subject to examination by any applicable tax authorities.

 

F-17

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Commitments and Contingencies

 

In the normal course of business, the Company is subject to contingencies, including legal proceedings and claims arising out of the business that relate to a wide range of matters, such as government investigations and tax matters. The Company recognizes a liability for such contingency if it determines it is probable that a loss has occurred and a reasonable estimate of the loss can be made. The Company may consider many factors in making these assessments including historical and the specific facts and circumstances of each matter.

 

Earnings (loss) per share

 

Basic earnings (loss) per share are computed by dividing income (loss) available to shareholders of the Company by the weighted average ordinary shares outstanding during the period. Diluted earnings per share takes into account the potential dilution that could occur if securities or other contracts to issue ordinary shares were exercised and converted into ordinary shares. As of December 31, 2018, there were no dilutive shares.

 

Statutory Reserves

 

Pursuant to the laws applicable to the PRC, PRC entities must make appropriations from after-tax profit to the non-distributable statutory surplus reserve fund. Subject to certain cumulative limits, the statutory surplus reserve fund requires annual appropriations of 10% of after-tax profit until the aggregated appropriations reach 50% of the registered capital (as determined under accounting principles generally accepted in the PRC (“PRC GAAP”) at each year-end). If the Company has accumulated losses from prior periods, the Company is able to use the current period net income after tax to offset against the accumulated loss. For the year ended December 31, 2018, the Company appropriated $73,348 to the statutory reserve fund.

 

Employee benefits

 

Full-time employees of the Company are entitled to staff welfare benefits including medical care, housing funds, pension benefits, unemployment insurance and other welfare, which are government mandated defined contribution plans. The Company is required to accrue for these benefits based on certain percentages of the employees’ respective salaries, subject to certain ceilings, in accordance with the relevant PRC regulations, and make cash contributions to the state-sponsored plans. The expense for the plans was $35,448 for the year ended December 31, 2018.

 

F-18

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Recently issued accounting pronouncements

 

In May 2014, the Financial Accounting Standards Board (“FASB”) issued ASU No. 2014-09, “Revenue from Contracts with Customers (Topic 606)” (“ASU 2014-09”). ASU 2014-09 requires an entity to recognize the amount of revenue to which it expects to be entitled for the transfer of promised goods or services to customers. ASU 2014-09 will replace most existing revenue recognition guidance in U.S. GAAP when it becomes effective and permits the use of either the retrospective or cumulative effect transition method. The guidance also requires additional disclosure about the nature, amount, timing and uncertainty of revenue and cash flows arising from customer contracts. In August 2015, the FASB issued ASU No. 2015-14, “Deferral of the Effective Date” (“ASU 2015-14”), which defers the effective date for ASU 2014-09 by one year. For public entities, the guidance in ASU 2014-09 was effective for annual reporting periods beginning after December 15, 2017 (including interim reporting periods within those periods). In March 2016, the FASB issued ASU No. 2016-08, “Principal versus Agent Considerations (Reporting Revenue versus Net)” (“ASU 2016-08”), which clarifies the implementation guidance on principal versus agent considerations in the new revenue recognition standard. In April 2016, the FASB issued ASU No. 2016-10, “Identifying Performance Obligations and Licensing” (“ASU 2016-10”), which reduces the complexity when applying the guidance for identifying performance obligations and improves the operability and understandability of the license implementation guidance. In May 2016, the FASB issued ASU No. 2016-12 “Narrow-Scope Improvements and Practical Expedients” (“ASU 2016-12”), which amends the guidance on transition, collectability, noncash consideration and the presentation of sales and other similar taxes. In December 2016, the FASB further issued ASU 2016-20, “Technical Corrections and Improvements to Topic 606, Revenue from Contracts with Customers” (“ASU 2016-20”), which makes minor corrections or minor improvements to the Codification that are not expected to have a significant effect on current accounting practice or create a significant administrative cost to most entities. The amendments are intended to address implementation and provide additional practical expedients to reduce the cost and complexity of applying the new revenue standard. These amendments have the same effective date as the new revenue standard. In September 2017, the FASB issued ASU No. 2017-13, which to clarify effective dates that public business entities and other entities were required to adopt ASC Topic 606 for annual reporting. As an “emerging growth company,” or EGC, the Company has elected to take advantage of the extended transition period provided in the Securities Act Section 7(a)(2)(B) for complying with new or revised accounting standards applicable to private companies. The amendments in this ASU are effective for annual reporting periods beginning after December 15, 2018, including interim periods within annual reporting periods beginning after December 15, 2019. The Company is planning to adopt Topic 606 for annual reporting for the fiscal year ending 2019 using the modified retrospective transition method, and is continuing to evaluate the impact our pending adoption of Topic 606 will have on the consolidated financial statements. The Company is in the process of evaluating the new standard against its existing accounting policies, including the timing of revenue recognition and its contracts with customers to determine the effect the guidance will have on its consolidated financial statements and what changes to systems and controls may be warranted.

 

F-19

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842), to increase the transparency and comparability about leases among entities. The new guidance requires lessees to recognize a lease liability and a corresponding lease asset for virtually all lease contracts. It also requires additional disclosures about leasing arrangements. ASU 2016-02 is effective for interim and annual periods beginning after December 15, 2018, and requires a modified retrospective approach to adoption assuming the Company will remain an emerging growth company at that date. Early adoption is permitted. In September 2017, the FASB issued ASU No. 2017-13, which to clarify effective dates that public business entities and other entities were required to adopt ASC Topic 842 for annual reporting. ASU No. 2017-13 also amended that all components of a leveraged lease be recalculated from inception of the lease based on the revised after tax cash flows arising from the change in the tax law, including revised tax rates. The difference between the amounts originally recorded and the recalculated amounts must be included in income of the year in which the tax law is enacted. The Company has not early adopted this update and it will become effective on January 1, 2020. The Company is currently evaluating the impact of this new standard on its consolidated financial statements and related disclosures.

 

In August 2016, the FASB issued Accounting Standards Update (ASU) No. 2016-15, Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments, to address diversity in how certain cash receipts and cash payments are presented and classified in the statement of cash flows. The amendments provide guidance on the following eight specific cash flow issues: (1) Debt Prepayment or Debt Extinguishment Costs; (2) Settlement of Zero-Coupon Debt Instruments or Other Debt Instruments with Coupon Interest Rates That Are Insignificant in Relation to the Effective Interest Rate of the Borrowing; (3) Contingent Consideration Payments Made after a Business Combination; (4) Proceeds from the Settlement of Insurance Claims; (5) Proceeds from the Settlement of Corporate-Owned Life Insurance Policies, including Bank-Owned; (6) Life Insurance Policies; (7) Distributions Received from Equity Method Investees; (8) Beneficial Interests in Securitization Transactions; and Separately Identifiable Cash Flows and Application of the Predominance Principle. The amendments are effective for public business entities for fiscal years beginning after December 15, 2017, and interim periods within those fiscal years. Early adoption is permitted, including adoption in an interim period. The amendments should be applied using a retrospective transition method to each period presented. If it is impracticable to apply the amendments retrospectively for some of the issues, the amendments for those issues would be applied prospectively as of the earliest date practicable. The adoption of this ASU on January 1, 2018 did not have a material effect on the Company’s consolidated financial statements.

 

F-20

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

In July 2017, the FASB Issued ASU 2017-11, Earnings Per Share (Topic 260), Distinguishing Liabilities from Equity (Topic 480) and Derivatives and Hedging (Topic 815). The amendments in Part I of the Update change the reclassification analysis of certain equity-lined financial instruments (or embedded features) with down round features. The amendments in Part II of this Update re-characterize the indefinite deferral of certain provisions of Topic 480 that now are presented as pending content in the Codification, to a scope exception. For public business entities, the amendments in Part I of this Update are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. For all other entities, the amendments in Part I of this Update are effective for fiscal years beginning after December 15, 2019, and interim periods within fiscal years beginning after December 15, 2020. Early adoption is permitted for all entities, including adoption in an interim period. If an entity early adopts the amendments in an interim period, any adjustments should be reflected as of the beginning of the fiscal year that includes that interim period. The amendments in Part II of this Update do not require any transition guidance because those amendments do not have an accounting effect. The Company does not believe the adoption of this ASU will have a material effect on the Company’s consolidated financial statements.

 

In February 2018, the FASB issued ASU 2018-02, Income Statement—Reporting Comprehensive Income (Topic 220): Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income. The amendments in this Update affect any entity that is required to apply the provisions of Topic 220, Income Statement—Reporting Comprehensive Income, and has items of other comprehensive income for which the related tax effects are presented in other comprehensive income as required by GAAP. The amendments in this Update are effective for all entities for fiscal years beginning after December 15, 2018, and interim periods within those fiscal years. Early adoption of the amendments in this Update is permitted, including adoption in any interim period, (1) for public business entities for reporting periods for which financial statements have not yet been issued and (2) for all other entities for reporting periods for which financial statements have not yet been made available for issuance. The amendments in this Update should be applied either in the period of adoption or retrospectively to each period (or periods) in which the effect of the change in the U.S. federal corporate income tax rate in the Tax Cuts and Jobs Act is recognized. The Company does not believe the adoption of this ASU will have a material effect on the Company’s consolidated financial statements.

 

Except as mentioned above, the Company does not believe other recently issued but not yet effective accounting standards, if currently adopted, would have a material effect on the Company’s consolidated balance sheets, statements of income and comprehensive income and statements of cash flows.

 

Note 3 – Variable interest entity

 

On May 8, 2019, Oriental Culture WFOE entered into Contractual Arrangements with Jiangsu Yanggu and its Participating Shareholders. The significant terms of these Contractual Arrangements are summarized in “Note 1 - Nature of business and organization” above. As a result, the Company classifies Jiangsu Yanggu and its subsidiaries and as VIEs.

 

F-21

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

A VIE is an entity that has either a total equity investment that is insufficient to permit the entity to finance its activities without additional subordinated financial support, or whose equity investors lack the characteristics of a controlling financial interest, such as through voting rights, right to receive the expected residual returns of the entity or obligation to absorb the expected losses of the entity. The variable interest holder, if any, that has a controlling financial interest in a VIE is deemed to be the primary beneficiary and must consolidate the VIE. Oriental Culture, the WFOE, is deemed to have a controlling financial interest and is the primary beneficiary of Jiangsu Yanggu because it has both of the following characteristics:

 

  (1) The power to direct activities at Jiangsu Yanggu that most significantly impact such entity’s economic performance, and
     
  (2) The obligation to absorb losses of, and the right to receive benefits from Jiangsu Yanggu that could potentially be significant to such entity.

 

Accordingly, the accounts of Jiangsu Yanggu and its subsidiaries are consolidated in the accompanying financial statements pursuant to ASC 810-10, Consolidation.

 

The carrying amounts of the VIEs’ consolidated assets and liabilities are as follows:

 

    December 31,
2018
 
       
Current assets   $ 3,532,851  
Property and equipment, net     282,306  
Other noncurrent assets     670,967  
Total assets     4,486,124  
Total liabilities     (1,781,135 )
Net assets   $ 2,704,989  

 

    December 31,
2018
 
Current liabilities:      
Accounts payable   $ 13,750  
Accounts payable – related party     258,406  
Customer deposits     823,290  
Other payables and accrued liabilities     388,266  
Other payables – related parties     130,842  
Taxes payable     166,581  
Total liabilities   $ 1,781,135  

 

F-22

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

The summarized operating results of the VIEs are as follows:

 

    For the year ended
December 31,
2018
 
       
Operating revenues   $ 5,352,700  
Income from operations   $ 2,737,425  
Net income   $ 2,694,425  

 

Note 4 – Other receivables

 

Other receivables consist of the following:

 

    December 31,
2018
 
Receivable from disposal of equity investment*   $ 427,419  
Rent and utilities deposits     1,026  
Employee advances and others     3,123  
Total other receivables   $ 431,568  

*Received in May 5, 2019.

 

Note 5 – Property and equipment, net

 

Property and equipment consist of the following:

 

    December 31,
2018
 
Electronic equipment   $ 57,916  
Office equipment     36,243  
Server room equipment     202,984  
Less: accumulated depreciation     (14,837 )
Total   $ 282,306  

 

Depreciation expense for the year ended December 31, 2018, amounted to $15,417.

 

Note 6 – Intangible assets, net

 

Intangible assets consist of the following:

 

    December 31,
2018
 
       
Artwork trading platform   $ 151,647  
Software     2,168  
Less: accumulated amortization     (25,455 )
Total   $ 128,360  

 

Amortization expenses for the year ended December 31, 2018 amounted to $25,440.

 

F-23

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Note 7 – Equity method investment

 

In 2018, Kashi Dongfang invested RMB 7,140,000 (USD 1,038,017) in Zhongcang Warehouse Co., Ltd. (“Zhongcang”), a PRC company that engages in providing storage services, in exchange for a 34% equity interest. As the Company has significant influence over the investee through its representation on the board, the investment in Zhongcang was accounted for using the equity method.

 

On December 20, 2018, Kashi Dongfang sold 41% of its equity interest in Zhongcang to Nanjing Zhonghao Culture Media Co., Ltd. for RMB 2,940,000 (USD 427,419), no gain or loss was recognized in the sale. The Company’s holding in Zhongcang was reduced to 20%. For the year ended December 31, 2018, the Company recognized $43,075 of loss from this equity investment.

 

In May 2019, Kashi Longrui sold 2% of its equity interest in Zhongcang to Nanjing Zhonghao Culture Media Co., Ltd. for RMB 417, 647 (USD 61,418).

 

Note 8 – Other payables and accrued liabilities

 

Other payables and accrued liabilities consist of the following:

 

    December 31,
2018
 
Security deposit*   $ 290,761  
Salary payable     88,452  
Others     9,053  
Total   $ 388,266  

 

* On December 18, 2018, the Company signed a cooperation agreement with Kashi Xuanzhi Culture media CO., Ltd. (“Kashi Xuanzhi”) to co-develop an application to the online platform. Revenue generated from this application will be shared between Kashi Xuanzhi and the Company. The Company will receive total security deposit of approximately $735,000 (RMB 5,000,000). The security deposit will be return to Kashi Xuanzhi upon dissolution of the cooperation agreement.

 

F-24

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Note 9 – Taxes

 

Cayman Islands

 

Under the current laws of the Cayman Islands, the Company is not subject to tax on income or capital gains. Additionally, upon payments of dividends to the shareholders, no Cayman Islands withholding tax will be imposed.

 

Hong Kong

 

Under the current Hong Kong Inland Revenue Ordinance, Oriental Culture HK established in Hong Kong is subject to a 16.5% income tax on taxable income generated from operations in Hong Kong. Payments of dividends from Oriental Culture HK to us are not subject to any Hong Kong withholding tax. The Company did not generate any revenue from operations in Hong Kong since its inception through December 31, 2018, and therefore is not subject to any income taxes in Hong Kong.

 

PRC

 

The WFOE and VIEs incorporated in the PRC are governed by the income tax laws of the PRC and the income tax provisions in respect to operations in the PRC is calculated at the applicable tax rates on the taxable income for the periods based on existing legislation, interpretations and practices in respect thereof. Under the Enterprise Income Tax Laws of the PRC (the “EIT Laws”), domestic enterprises and Foreign Investment Enterprises (the “FIE”) are usually subject to a unified 25% enterprise income tax rate while preferential tax rates, tax holidays and even tax exemptions may be granted on case-by-case basis.

 

Kashi Longrui and Kashi Dongfang were formed and registered in Kashgar in Xinjiang Province, China in 2018. These companies will not be subject to income tax for 5 years, and after the expiration of the initial 5 year period, can obtain another two years of tax exempt status and three years at reduced income tax rate of 12.5% due to the local tax policies to attract companies in various industries.

 

Tax savings for the years ended December 31, 2018 amounted to $714,727. The Company’s basic and diluted earnings per shares would have been lower by $0.07 per share for the years ended December 31, 2018 without the tax exempt status.

 

F-25

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

The following table reconciles China statutory rates to the Company’s effective tax rate:

 

    December 31,
2018
 
China income tax rate     25.0 %
Preferential tax rate reduction     (25.0 )%
Effective tax rate     - %

 

Deferred tax assets - China

 

The following table summarizes the significant components of deferred tax assets.

 

    December 31, 2018  
Net operating losses   $ 52,719  
Valuation allowance     (52,719 )
Deferred tax assets, net   $ -  

 

The following table summarizes the changes in valuation allowance for deferred tax assets.

 

    December 31, 2018  
Beginning balance   $ -  
Additions     52,719  
Ending balance   $ 52,719  

 

The Company evaluated the recoverable amounts of deferred tax assets, and provided a valuation allowance to the extent that future taxable profits will be available against which the net operating loss and temporary difference can be utilized. The Company considers both positive and negative factors when assessing the future realization of the deferred tax assets and applied weigh to the relative impact of the evidences to the extent it could be objectively verified.

 

The Company’s NOL was mainly from the Company’s VIE and subsidiaries’ cumulative net operating losses (“NOL”) of approximately $235,000 as of December 31, 2018. Management considers projected future losses outweighs other factors and made a full allowance of related deferred tax assets.

 

F-26

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Uncertain tax positions

 

The Company evaluates each uncertain tax position including the potential application of interest and penalties based on the technical merits, and measures the unrecognized benefits associated with the tax positions. As of December 31, 2018, the Company did not have any significant unrecognized uncertain tax positions.

 

Taxes payable consist of the following:

 

    December 31, 2018  
VAT payable   $ 140,175  
Other taxes payable     26,406  
Total   $ 166,581  

 

Note 10– Concentration of credit risk

 

Financial instruments that potentially subject the Company to significant concentrations of credit risk consist primarily of cash and cash equivalents. As of December 31, 2018, $1,090,501 was deposited with a bank located in the PRC. As of December 31, 2018, $926,357 was deposited with a third party platform fund account located in the PRC. These balances are not covered by insurance. While management believes that these financial institutions and third party fund holder are of high credit quality, it also continually monitors their credit worthiness.

 

Note 11 - Segment reporting

 

ASC 280, “Segment Reporting”, establishes standards for reporting information about operating segments on a basis consistent with the Company’s internal organizational structure as well as information about geographical areas, business segments and major customers in financial statements for details on the Company’s business segments.

 

The Company uses the management approach to determine reportable operating segments. The management approach considers the internal organization and reporting used by the Company’s chief operating decision maker (“CODM”) for making decisions, allocating resources and assessing performance. The Company’s CODM has been identified as the CEO, who reviews consolidated results when making decisions about allocating resources and assessing performance of the Company.

 

F-27

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Based on the management’s assessment, the Company determined that it has only one operating segment and therefore one reportable segment as defined by ASC 280, which is facilitating e-commerce of artwork trading.

 

    For the year ended
December 31,
2018
 
Listing service fees   $ 275,477  
Transaction fee    

1,262,950

 
Marketing service fees     3,762,241  
Other revenues*    

91,597

 
Sales taxes     (39,565 )
Total   $ 5,352,700  

 

* Including $83,369 to related parties

 

Note 12 – Related party transactions

 

a. Accounts receivable – related parties consist of the following:

 

    Relationship   December 31,
2018
 
Hunan Huaqiang Artwork Trading Center Co., Ltd.  

49% owned by Jinling Cultural Property Exchange Co., Ltd.

  $ 1,817  
Nanjing Culture and Artwork Property Exchange Co., Ltd.  

Oriental Culture’s 16.13% beneficial owner, Huajun Gao, is the legal representative

    10,904  
Total       $ 12,721  

 

F-28

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

b. Accounts payable – related party consist of the following:

 

    Relationship   December 31,
2018
 
Zhongcang Warehouse Co., Ltd.   The Company’s equity investee   $ 258,406  
Total       $ 258,406  

 

Total storage services the Company obtained from its equity investee amounted to approximately $0.3 million for the year ended December 31, 2018.

 

c. Other payables – related party consist of the following:

 

Other payables – related party are those nontrade payables arising from transactions between the Company and its related party, such as payments paid on behalf of the Company.

 

    Relationship   December 31,
2018
 
Aimin Kong  

Oriental Culture’s 16.13% beneficial owner

  $ 67,882  
Total       $ 67,882  

 

d. Rent payable – related party consist of the following:

 

    Relationship   December 31, 2018  
Nanjing Culture and Artwork Property Exchange Co., Ltd.  

Oriental Culture’s 16.13% beneficial owner, Huajun Gao, is the legal representative

    130,842  
Total       $ 130,842  

 

The Company has entered into non-cancellable operating lease agreement for an office with the lease term expiring in December 2019 with a monthly rental of approximately $13,000. Total rental expense for the year ended December 31, 2018 amounted to $130,842. In addition, we also purchased approximately $300,000 of fixed assets in November, 2018.

 

F-29

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

e. Revenues – related parties consist of the following:

  

    Relationship   Nature   For the year ended
December 31,
2018
 

Nanjing Culture and Artwork Property Exchange Co., Ltd.

  Oriental Culture’s 16.13% beneficial owner, Huajun Gao, is the legal representative   Technological service fee revenue   $ 10,689  
Jinling Cultural Property Rights Exchange Co., Ltd.   Oriental Culture’s 16.13% beneficial owner, Huajun Gao, and 4.03% beneficial owner, Yin Lu   Technological service fee revenue     10,688  

Hunan Huaqiang Artwork Trading Center Co., Ltd.

  49% owned by Jinling Cultural Property Exchange Co., Ltd.   Technological service fee revenue     10,688  
Nanjing Jinwang Art Purchase E-commerce Co., Ltd.   Oriental Culture’s 2.42% beneficial owner, Hongxia Wang, is the legal representative and executive director   Technological service fee revenue     51,304  
Total           $ 83,369  

  

  f. Cost of revenues – related party consist of the following:

 

    Relationship   Nature   For the year ended
December 31,
2018
 
Zhongcang Warehouse Co., Ltd.   The Company’s equity investee   Storage fees   $ 253,302  

 

  g. Selling and marketing expenses – related party consists of the following:

 

    Relationship   Nature   For the year ended
December 31,
2018
 
Nanjing Jinwang Art Purchase E-commerce Co., Ltd.  

Oriental Culture’s 2.42% beneficial owner, Hongxia Wang, is the legal representative and executive director

  Online advertising expenses   $ 13,690  

  

Note 13 – Equity

 

Restricted net assets

 

The Company’s ability to pay dividends is primarily dependent on the Company receiving distributions of funds from its subsidiary. Relevant PRC statutory laws and regulations permit payments of dividends by Oriental Culture, the WFOE, and its VIE’s Jiangsu Yanggu, Nanjing Yanyu, Nanjing Yanqing, Kashi Longrui, and Kash Dongfang (collectively “Jiangsu Yanggu PRC entities”) only out of their retained earnings, if any, as determined in accordance with PRC accounting standards and regulations. The results of operations reflected in the accompanying consolidated financial statements prepared in accordance with U.S. GAAP differ from those reflected in the statutory financial statements of Jiangsu Yanggu PRC entities.

 

Jiangsu Yanggu PRC entities are required to set aside at least 10% of their after-tax profits each year, if any, to fund certain statutory reserve funds until such reserve funds reach 50% of their registered capital. In addition, Jiangsu Yanggu PRC entities may allocate a portion of their after-tax profits based on PRC accounting standards to enterprise expansion fund and staff bonus and welfare fund at its discretion. The statutory reserve funds and the discretionary funds are not distributable as cash dividends. Remittance of dividends by a wholly foreign-owned company out of China is subject to examination by the banks designated by the State Administration of Foreign Exchange (“SAFE”).

 

As a result of the foregoing restrictions, Jiangsu Yanggu PRC entities are restricted in their ability to transfer their net assets to the Company. Foreign exchange and other regulation in the PRC may further restrict Jiangsu Yanggu PRC entities from transferring funds to the Company in the form of dividends, loans and advances. As of December 31, 2018, amounts restricted are the net assets of Jiangsu Yanggu PRC entities, which amounted to $2,704,989.

 

F-30

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Note 14 – Commitments and Contingencies

 

Contingencies

 

From time to time, the Company may be subject to certain legal proceedings, claims and disputes that arise in the ordinary course of business. Although the outcomes of these legal proceedings cannot be predicted, the Company does not believe these actions, in the aggregate, will have a material adverse impact on its financial position, results of operations or liquidity.

 

Variable interest entity structure

 

In the opinion of management, (i) the corporate structure of the Company is in compliance with existing PRC laws and regulations; (ii) the Contractual Arrangements are valid and binding, and do not result in any violation of PRC laws or regulations currently in effect; and (iii) the business operations of the WFOE and the VIEs are in compliance with existing PRC laws and regulations in all material respects. However, there are substantial uncertainties regarding the interpretation and application of current and future PRC laws and regulations. Accordingly, the Company cannot be assured that PRC regulatory authorities will not ultimately take a contrary view to the foregoing opinion of its management. If the current corporate structure of the Company or the Contractual Arrangements is found to be in violation of any existing or future PRC laws and regulations, the Company may be required to restructure its corporate structure and operations in the PRC to comply with changing and new PRC laws and regulations. In the opinion of management, the likelihood of loss in respect of the Company’s current corporate structure or the Contractual Arrangements is remote based on current facts and circumstances.

 

Lease commitments

 

The Company has entered into two non-cancellable operating lease agreements for two office units. These office units have lease terms expiring in December 2019 and May 2020 with a monthly rental of approximately $13,000 and $2,000, respectively.

 

The Company’s commitments for minimum lease payment under these operating leases as of December 31, 2018 are as follows:

 

Twelve months ending December 31,   Minimum lease payment  
2019   $ 179,300  
2020     11,147  
Total minimum payments required   $ 190,447  

 

Rent expense for the year ended December 31, 2018 was $153,281.

 

Note 15 – Subsequent Event

 

On May 7, 2019, the Company entered into a Sale and Purchase Agreement to acquire all outstanding equity interest of HKDAEx Limited (“HKDAEx”), which provides the Company’s customers with an online platform in Hong Kong. Pursuant to the terms of the Agreement, the sole shareholder of HKDAEx exchanged its equity interest in HKDAEx for 2,400,000 ordinary shares (pre forward stock split) of the Company.

 

Pursuant to the Amended and Restated Article of Association adopted by a special resolution of shareholders of the Company dated September 12, 2019, the authorized shares of 50,000,000 Ordinary shares were re-designated to 50,000,000 preferred shares of a nominal or par value of USD0.0001 each. All shares authorized were presented retroactively to the earliest period of reporting.

 

On November 8, 2019, the Board of Directors approved a 2-for 1 forward stock split, and all existing shareholders agreed to surrender an aggregate of 3,100,000 ordinary shares, or 12.5% of our then outstanding ordinary shares, from at no consideration to be reserved as treasury shares of the Company. The transaction is considered as a recapitalization prior to the Company’s initial public offering and all shares were retroactively reported for all periods presented.

 

On November 8, 2019, the shareholders of the Company adopted the Second Amended and Restated Articles of Association to effect a 2 for 1 forward stock split of the total authorized and issued and outstanding shares of the Company. As a result of the 2 for 1 forward stock split, the Company’s total authorized shares are 1,000,000,000 shares comprising of (i) 900,000,000 ordinary shares of a nominal or par value of $0.00005 each and (ii) 100,000,000 preferred shares of a nominal or par value of $0.00005 each, and the Company’s issued and outstanding ordinary shares increased from 12,400,000 shares to 24,800,000 shares, par value of $0.00005.

 

Note 16 – Condensed financial information of the parent company

 

The Company performed a test on the restricted net assets of consolidated subsidiaries in accordance with Securities and Exchange Commission Regulation S-X Rule 5-04 and concluded that it was applicable for the Company to disclose the financial statements for the parent company.

 

The subsidiary did not pay any dividend to the Company for the periods presented. For the purpose of presenting parent only financial information, the Company records its investment in its subsidiaries under the equity method of accounting. Such investment is presented on the separate condensed balance sheets of the Company as “Investment in subsidiaries” and the income of the subsidiaries is presented as “share of income of subsidiaries”. Certain information and footnote disclosures generally included in financial statements prepared in accordance with U.S. GAAP have been condensed and omitted. 

F-31

 

  

The Company did not have significant capital and other commitments, long-term obligations, or guarantees as of December 31, 2018.

 

PARENT COMPANY BALANCE SHEETS

 

    December 31,  
    2018  
ASSETS      
OTHER ASSETS      
Investment in subsidiaries   $ 2,648,175  
         
Total assets   $ 2,648,175  
         
LIABILITIES AND SHAREHOLDERS’ EQUITY        
         
LIABILITIES   $ -  
         
COMMITMENTS AND CONTINGENCIES        
         
SHAREHOLDERS’ EQUITY        
Preferred shares, $0.00005 par value, 100,000,000 shares authorized, 0 shares issued and outstanding as of December 31, 2018*        
Ordinary shares, $0.00005 par value, 900,000,000 shares authorized, 20,000,000 shares issued and outstanding as of December 31, 2018**     1,000  
Treasury stock, at cost, 2,500,000  outstanding as of December 31, 2018***     (125 )
Additional paid-in capital     112,424  
Statutory reserves     73,348  
Retained earnings     2,550,790  
Accumulated other comprehensive loss     (89,262 )
Total shareholders’ equity     2,648,175  
         
Total liabilities and shareholders’ equity   $ 2,648,175  

 

* given retroactive effect to re-designation of preferred shares on September 12, 2019.

 

** given retroactive effect to 2-for-1 forward stock split to authorized and issued and outstanding shares.

 

*** given retroactive effect to the surrender of an aggregate of 12.5% of  our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

 

PARENT COMPANY STATEMENTS OF INCOME AND COMPREHENSIVE INCOME

 

    For the year ended December 31,
2018
 
EQUITY INCOME OF SUBSIDIARIES AND VIES   $ 2,624,138  
         
NET INCOME     2,624,138  
FOREIGN CURRENCY TRANSLATION ADJUSTMENTS     (89,262 )
COMPREHENSIVE INCOME   $ 2,534,876  

 

PARENT COMPANY STATEMENTS OF CASH FLOWS

 

    For the year ended December 31,
2018
 
CASH FLOWS FROM OPERATING ACTIVITIES:        
Net income   $ 2,624,138  
Adjustments to reconcile net income to cash used in operating activities:        
Equity income of subsidiaries and VIEs     (2,624,138 )
Net cash used in operating activities     -  
         
CHANGES IN CASH AND CASH EQUIVALENTS     -  
         
CASH AND CASH EQUIVALENTS, beginning of year     -  
         
CASH AND CASH EQUIVALENTS, end of year   $ -  

 

F-32

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

UNAUDITED INTERIM CONDENSED CONSOLIDATED BALANCE SHEETS

 

    June 30,     December 31,  
    2019     2018  
    (Unaudited)        
ASSETS      
             
CURRENT ASSETS            
Cash and cash equivalents   $ 9,156,502     $ 2,016,858  
Accounts receivable     232,737       921,713  
Accounts receivable - related parties     62,912       12,721  
Other receivables and prepaid expenses     80,548       450,879  
Total current assets     9,532,699       3,402,171  
                 
PROPERTY AND EQUIPMENT, NET     531,557       282,306  
                 
OTHER ASSETS                
Prepayment     45,534       15,375  
Investment     508,364       569,142  
Intangible assets, net     776,675       128,360  
Deferred offering costs     644,778       99,838  
Total other assets     1,975,351       812,715  
                 
Total assets   $ 12,039,607     $ 4,497,192  
                 
LIABILITIES AND SHAREHOLDERS’ EQUITY                
                 
CURRENT LIABILITIES                
Accounts payable   $ 13,526     $ 13,750  
Accounts payable - related parties     278,824       258,406  
Deferred revenue     703,594       823,290  
Other payables and accrued liabilities     565,183       388,266  
Other payables - related parties     33,365       198,724  
Taxes payable     110,441       166,581  
Total current liabilities     1,704,933       1,849,017  
                 
Total liabilities     1,704,933       1,849,017  
                 
COMMITMENTS AND CONTINGENCIES                
                 
SHAREHOLDERS’ EQUITY                
Preferred shares, $0.00005 par value, 100,000,000 shares authorized, 0 shares issued and outstanding as of June 30, 2019 and December 31, 2018*     -       -  
Ordinary shares, $0.00005 par value, 900,000,000 shares authorized, 24,800,000 and 20,000,000 shares issued and outstanding as of June 30, 2019 and December 31, 2018**     1,240       1,000  
Treasury shares, at cost, 3,100,000 and 2,500,000 shares outstanding as of June 30, 2019 and December 31, 2018***     (155 )     (125 )
Additional paid-in capital     1,607,719       112,424  
Statutory reserves     112,347       73,348  
Retained earnings     8,781,582       2,550,790  
Accumulated other comprehensive loss     (168,059 )     (89,262 )
Total shareholders’ equity     10,334,674       2,648,175  
                 
Total liabilities and shareholders’ equity   $ 12,039,607     $ 4,497,192  

 

* given retroactive effect to re-designation of preferred shares on September 12, 2019.

 

** given retroactive effect to 2-for-1 forward stock split to authorized, issued and outstanding shares.

 

*** given retroactive effect to the surrender of 12.5% of our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

 

The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.

 

F-33

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

UNAUDITED INTERIM CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS AND
COMPREHENSIVE INCOME (LOSS)

 

    For the Six Months Ended
June 30,
 
    2019     2018  
    (Unaudited)     (Unaudited)  
OPERATING REVENUES:            
Revenues   $ 7,830,148     $ -  
Revenues - related parties     81,390       -  
Sales taxes     (60,023 )     -  
Total operating revenues, net     7,851,515       -  
                 
COST OF REVENUES:                
Cost of revenues     (272,719 )     (10,100 )
Cost of revenues - related party     (320,791 )     -  
Total cost of revenues     (593,510 )     (10,100 )
                 
GROSS PROFIT     7,258,005       (10,100 )
                 
OPERATING EXPENSES:                
Selling and marketing expenses     (24,369 )     -  
Selling and marketing expenses - related party     (23,718 )     -  
General and administrative expenses     (913,140 )     (20,341 )
Total operating expenses     (961,227 )     (20,341 )
                 
INCOME (LOSS) FROM OPERATIONS     6,296,778       (30,441 )
                 
OTHER INCOME (EXPENSE)                
Other income (expenses), net     18,348       (49 )
Total other income (expenses), net     18,348       (49 )
                 
INCOME (LOSS) BEFORE INCOME TAXES     6,315,126       (30,490 )
                 
PROVISION FOR INCOME TAX     45,335       -  
                 
NET INCOME (LOSS)   $ 6,269,791     $ (30,490 )
                 
OTHER COMPREHENSIVE (LOSS) INCOME                
Foreign currency translation adjustment     (78,797 )     1,861  
                 
COMPREHENSIVE INCOME (LOSS)   $ 6,190,994     $ (28,629 )
                 
WEIGHTED AVERAGE NUMBER OF ORDINARY SHARES                
Basic and diluted*     18,810,556       17,500,000  
                 
EARNINGS PER SHARE                
Basic and diluted*   $ 0.33     $ (0.00 )

 

* given retroactive effect to 2-for-1 forward stock split to authorized and issued and outstanding shares as well as the surrender of an aggregate of 3,100,000 ordinary shares, or 12.5% of our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

 

The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.

 

F-34

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

UNAUDITED INTERIM CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY

 

                                        Additional                       Accumulated
other
       
    Preferred shares     Ordinary shares     Treasury Stock     paid-in     Subscription     Statutory     Retained     comprehensive        
    Shares*     Par Value     Shares**     Par Value     Shares***     Par Value     capital     receivable     reserves     earnings     income     Total  
BALANCE, JANUARY 1, 2018            -     $         -       -     $ -       -     $ -     $ -     $ -     $ -     $ -     $ -     $ -  
Issuance of ordinary shares     -       -       20,000,000       1,000       (2,500,000 )     (125 )     112,424       (44,173 )     -       -       -       69,126  
Net income     -       -       -       -       -       -       -       -       -       (30,490 )     -       (30,490 )
Foreign currency translation     -       -       -       -       -       -       -       -       -       -       1,861       1,861  
BALANCE, JUNE 30, 2018 (UNAUDITED)     -     $ -       20,000,000     $ 1,000       (2,500,000 )   $ (125 )   $ 112,424     $ (44,173 )   $ -     $ (30,490 )   $ 1,861     $ 40,497  

 

                                        Additional                       Accumulated
other
       
    Preferred shares     Ordinary shares     Treasury Stock     paid-in     Subscription     Statutory     Retained     comprehensive        
    Shares*     Par Value     Shares**     Par Value     Shares***     Par Value     capital     receivable     reserves     earnings     income     Total  
BALANCE, JANUARY 1, 2019         -     $     -       20,000,000     $ 1,000       (2,500,000 )   $ (125 )   $ 112,424     $     -     $ 73,348     $ 2,550,790     $ (89,262 )   $ 2,648,175  
Acquisition of HKDAEx Limited     -       -       4,800,000       240       (600,000 )   (30 )     1,495,295       -       -       -       -       1,495,505  
Net income     -       -       -       -       -       -       -       -       38,999       6,230,792       -       6,269,791  
Foreign currency translation     -       -       -       -       -       -       -       -       -       -       (78,797 )     (78,797 )
BALANCE, JUNE 30, 2019 (UNAUDITED)     -     $ -       24,800,000     $ 1,240       (3,100,000 )   $ (155 )   $ 1,607,719     $ -     $ 112,347     $ 8,781,582     $ (168,059 )   $ 10,334,674  

 

* given retroactive effect to re-designation of preferred shares on September 12, 2019.

 

** given retroactive effect to 2-for-1 forward stock split to authorized, issued and outstanding shares.

 

*** given retroactive effect to the surrender of 12.5% of our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

 

The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.

 

F-35

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

UNAUDITED INTERIM CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

 

    For the Six Months Ended
June 30,
 
    2019     2018  
    (Unaudited)     (Unaudited)  
             
CASH FLOWS FROM OPERATING ACTIVITIES:            
Net income (loss)   $ 6,269,791     $ (30,490 )
Adjustments to reconcile net income to net cash provided by operating activities:                
Depreciation and amortization     91,023       10,100  
Loss from disposal of equipment     4,070       -  
Change in operating assets and liabilities:                
Decrease in accounts receivables     699,033       -  
(Increase) in accounts receivables - related parties     (50,879 )     -  
Decrease in other receivables and prepaid expenses     398,381       -  
Decrease (increase) in other receivables - related party     180,468       (73,117 )
(Increase) in prepayment     (30,536 )     (15,361 )
(Decrease) increase in accounts payable     (279 )     55,817  
Increase in accounts payable - related party     20,556       -  
Decrease in deferred revenue     (121,815 )     -  
Increase in other payables and accrued liabilities     145,451       131,394  
Decrease in taxes payable     (57,011 )     -  
Net cash provided by operating activities     7,548,253       78,343  
                 
CASH FLOWS FROM INVESTING ACTIVITIES:                
Proceed from sale of equity investment ZHONGCANG     61,940       -  
Purchase of property, plant and equipment     (274,535 )     -  
Purchase of intangible assets     (71,590 )     (151,504 )
Cash acquired from business acquisition     630,514       -  
Net cash used in investing activities     346,329       (151,504 )
                 
CASH FLOWS FROM FINANCING ACTIVITIES:                
Capital contribution     -       69,126  
Payments of other payables - related party     (118,830 )     -  
Deferred offering costs     (552,430 )     -  
Net cash (used in) provided by financing activities     (671,260 )     69,126  
                 
EFFECT OF EXCHANGE RATE ON CASH     (83,678 )     4,544  
                 
INCREASE IN CASH     7,139,644       509  
                 
CASH AND CASH EQUIVALENTS, beginning of period     2,016,858       -  
                 
CASH AND CASH EQUIVALENTS, end of period   $ 9,156,502     $ 509  
                 
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:                
Cash paid for income tax   $ -     $ -  
Cash paid for interest expense   $ -     $ -  
                 
NON-CASH TRANSACTIONS OF INVESTING AND FINANCING ACTIVITIES                
Capital contribution on shares subscription receivable   $ -     $ 44,173  
Business acquisition through issuance of ordinary shares   $ 1,495,505     $ -  

 

The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.

 

F-36

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

  

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Note 1 – Nature of business and organization

 

Oriental Culture Holding LTD (“Oriental Culture”) is a holding company incorporated on November 29, 2018, under the laws of the Cayman Islands.

 

Oriental Culture has no substantial operations other than holding all of the outstanding share capital of Oriental Culture Development (“Oriental Culture BVI”) and China International Assets and Equity of Artworks Exchange Limited (“International Culture”). Oriental Culture BVI is also a holding company holding all of the outstanding share capital of HK Oriental Culture Investment Development Limited (“Oriental Culture HK”). Oriental Culture HK is also a holding company holding all of the outstanding equity of Nanjing Rongke Business Consulting Service Co., Ltd. (“Oriental Culture WFOE” or “WFOE”).

 

The Company, through its direct subsidiary Oriental Culture HK and variable interest entity (“VIE”), Jiangsu Yanggu Culture Development Co., Ltd. (“Jiangsu Yanggu”), and Jiangsu Yanggu’s subsidiaries and International Culture are engaged in providing online platform in facilitating e-commerce of artwork trading. The Company’s headquarters are located in the city of Nanjing, in the People’s Republic of China (the “PRC” or “China”). All of the Company’s business activities are carried out by Oriental Culture HK, Jiangsu Yanggu and Jiangsu Yanggu’s subsidiaries.

 

On May 8, 2019, Oriental Culture completed its reorganization of entities under the common control of various shareholders, who collectively owned 100% of the equity interests of Oriental Culture prior to the reorganization. Oriental Culture, Oriental Culture BVI, and Oriental Culture HK, were established as the holding companies of Oriental Culture WFOE. Oriental Culture WFOE is the primary beneficiary of Jiangsu Yanggu and its subsidiaries. Prior to the reorganization, Jiangsu Yanggu and International Exchange were under common control, as the same group of shareholders held more than 50% of the voting ownership interest of each entity, and contemporaneous written evidence of agreements to vote a majority of the entities’ shares in concert exists. Oriental Culture, International Culture  and Jiangsu Yanggu were under common control, which resulted in the consolidation of International Culture and Jiangsu Yanggu, and which has been accounted for as a reorganization of entities under common control at carrying value. The financial statements are prepared on the basis as if the reorganization became effective as of the beginning of the first period presented in the accompanying consolidated financial statements of Oriental Culture. Oriental Culture, its subsidiaries and VIEs are collectively defined to as the “Company” in the accompanying unaudited interim condensed consolidated financial statements of Oriental Culture.

 

On May 9, 2019, the Company acquired all outstanding equity interest of HKDAEx Limited (“HKDAEx”), which provides our customers with an online platform in Hong Kong.

 

Although our audited financial statements including income statement and statement of cash flows cover the entire year ended December 31, 2018, we did not have any meaningful operation until March 2018.

 

F-37

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Contractual Arrangements

 

In the PRC, investment activities by foreign investors are principally governed by the Guidance Catalog of Industries for Foreign Investment, which was promulgated and is amended from time to time by the PRC Ministry of Commerce, or MOFCOM, and the PRC National Development and Reform Commission, or NDRC. In June 2018, the Guidance Catalog of Industries for Foreign Investment was replaced by the Special Administrative Measures (Negative List) for Foreign Investment Access (2018 Version), or the Negative List. The Negative List divides industries into two categories: restricted and prohibited. Industries not listed in the Negative List are generally open to foreign investment unless specifically restricted by other PRC regulations. Our Company and the WFOE are considered as foreign investors or foreign invested enterprises under PRC law.

 

The Company is a Cayman Islands company and Oriental Culture WFOE is considered a foreign invested enterprise. Although the business we conduct or will conduct through Jiangsu Yanggu is not within the category in which foreign investment is currently restricted under the Negative List or other PRC Laws, we expect that in the future Jiangsu Yanggu will engage in marketing survey services for online marketplaces. Marketing survey services are within the category in which foreign investment is restricted pursuant to the Negative List. In addition, we intend to centralize our management and operations in the PRC to avoid being restricted to conduct certain business activities which are important for our current or future business but are currently restricted or might be restricted in the future. As such, Jiangsu Yanggu is controlled through contractual arrangements in lieu of direct equity ownership by the Company or any of its subsidiaries. Such contractual arrangements are comprised of a series of four agreements (collectively the “Contractual Arrangements”), of which the significant terms are as follows:

 

Contractual Agreements with Jiangsu Yanggu

 

Technical Consultation and Services Agreement

 

Pursuant to the technical consultation and services agreement between Oriental Culture WFOE and Jiangsu Yanggu, Oriental Culture WFOE has the exclusive right to provide consultation and services to Jiangsu Yanggu in the areas of funding, human resources, technology and intellectual property rights. For such services, Jiangsu Yanggu agrees to pay service fees in the amount of 100% of its net income and also has the obligation to absorb 100% of Jiangsu Yanggu’s losses.

 

The WFOE exclusively owns any intellectual property rights arising from the performance of this Technical Consultation and Services Agreement. The term of the Technical Consultation and Service Agreement is 20 years until May 7, 2039. Oriental Culture WFOE may terminate this agreement at any time by giving 30 day’s’ written notice to Jiangsu Yanggu.

 

F-38

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Equity Pledge Agreement

 

Pursuant to the Equity Pledge Agreements among Oriental Culture WFOE, Jiangsu Yanggu and Jiangsu Yanggu’s shareholders dated May 8 2019, each of Jiangsu Yanggu’s shareholders pledged all of its equity interests in Jiangsu Yanggu to Oriental Culture WFOE to guarantee Jiangsu Yanggu’s performance of relevant obligations and indebtedness under the Technical Consultation and Services Agreement and other control agreements. If Jiangsu Yanggu breaches its obligations under the Control Agreement, Oriental Culture WFOE, as pledgee, will be entitled to certain rights, including the right to dispose of the pledged equity interests in order to recover the damages associated with such breach. The pledge shall be continuously valid until all of Jiangsu Yanggu’s shareholders are no longer shareholders of Jiangsu Yanggu, or until the satisfaction of all Jiangsu Yanggu’s obligations under the Control Agreements.

 

Equity Option Agreement

 

Pursuant to the Equity Option Agreement among Oriental Culture WFOE, Jiangsu Yanggu and Jiangsu Yanggu’s shareholders dated May 8, 2019, Oriental Culture WFOE has the exclusive right to require Jiangsu Yanggu’s shareholders to fulfill and complete all approval and registration procedures required under PRC laws for Oriental Culture WFOE to purchase, or designate one or more persons to purchase, each shareholders’ equity interests in Jiangsu Yanggu, in one or multiple transactions, at any time or from time to time, at Oriental Culture WFOE’s sole and absolute discretion. The purchase price shall be the lowest price allowed by PRC laws. The Equity Option Agreement shall remain effective until all the equity interests owned by Jiangsu Yanggu’s shareholders have been legally transferred to Oriental Culture WFOE or its designee(s).

 

Voting Rights Proxy and Financial Supporting Agreements

 

Pursuant to the voting rights proxy and financial supporting agreements, as amended, among the Participating Shareholders of Jiangsu Yanggu and Oriental Culture WFOE, Jiangsu Yanggu’s Participating Shareholders have given Oriental Culture WFOE an irrevocable proxy to act on their behalf on all matters pertaining to Jiangsu Yanggu and to exercise all of their rights as shareholders of Jiangsu Yanggu, including the right to attend shareholders meeting, to exercise voting rights and to transfer all or a part of their equity interests in Jiangsu Yanggu. In consideration of such granted rights, Oriental Culture WFOE agrees to provide the necessary financial support to Jiangsu Yanggu whether or not Jiangsu Yanggu incurs losses, and agrees not to request repayment if Jiangsu Yanggu is unable to do so. The agreements shall remain in effect for 20 years until May 7, 2039.

 

Based on the foregoing contractual arrangements, which grant Oriental Culture WFOE effective control of Jiangsu Yanggu and obligate Oriental Culture WFOE to absorb 100% of the risk of loss from its activities, as well as enable Oriental Culture WFOE to receive 100% of the expected residual returns, the Company accounts for Jiangsu Yanggu and its subsidiaries as VIEs. Accordingly, the Company consolidates the accounts of Jiangsu Yanggu and its subsidiaries for the period since inception herein and from May 8, 2019, the date of which becomes under common control, in accordance with Regulation S-X-3A-02 promulgated by the Securities Exchange Commission (“SEC”), and Accounting Standards Codification (“ASC”) 810-10, Consolidation.

 

F-39

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

The accompanying unaudited interim condensed consolidated financial statements reflect the activities of the Company and each of the following entities:

 

Name   Background   Ownership
China International Assets and Equity of Artworks Exchange Limited (“International Culture”)  

● A Hong Kong company

● Incorporated on November 22, 2013, commenced operations in March 2018.

● Engages in providing online platform in facilitating e-commerce of artwork trading.

 

  100%
Oriental Culture BVI  

● A British Virgin Islands company

● Incorporated on December 6, 2018

  100%
Oriental Culture HK  

● A Hong Kong company

● Incorporated on January 3, 2019

  100% owned by Oriental Culture BVI
Oriental Culture WFOE  

● A PRC limited liability company and deemed a wholly foreign owned enterprise (“WFOE”)

● Incorporated on May 7, 2019

  100% owned by Oriental Culture HK
Jiangsu Yanggu  

● A PRC limited liability company

● Incorporated on August 23, 2017, commenced operations in March 2018.

● Holding company of Nanjing Yanyu and Nanjing Yanqing

  VIE of Oriental Culture WFOE
Nanjing Yanyu Information Technology Co., Ltd. (“Nanjing Yanyu”)  

● A PRC limited liability company

● Incorporated on June 7, 2018

● Provides support services to Jiangsu Yanggu

  100% owned by Jiangsu Yanggu
Nanjing Yanqing Information Technology Co., Ltd. (“Nanjing Yanqing”)  

● A PRC limited liability company

● Incorporated on May 17, 2018

● Holding company of Kashi Longrui and Kashi Dongfang

  100% owned by Jiangsu Yanggu
Kashi Longrui Business Management Service Co., Ltd. (“Kashi Longrui”)  

● A PRC limited liability company

● Incorporated on July 19, 2018

● Provides marketing services to Jiangsu Yanggu

  100% owned by Yanqing
Kashi Dongfang Cangpin Culture Development Co., Ltd. (“Kashi Dongfang”)  

● A PRC limited liability company

● Incorporated on August 29, 2018

● Provides storage services to Jiangsu Yanggu

  100% owned by Yanqing
HKDAEx Limited (“HKDAEx”)  

● A Hong Kong company

● Incorporated on April 18, 2018

  100%

 

F-40

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Note 2 – Summary of significant accounting policies

 

Cost of revenues

 

Cost of revenues consist of compensation including social welfare and benefits for our IT team, appraisal fees, online cloud service fees, storage fees, depreciation and amortization of hardware and software for our trading platform.

 

Basis of presentation

 

The accompanying unaudited interim consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) and pursuant to the rules and regulations of the Securities Exchange Commission (“SEC”), regarding financial reporting, and include all normal and recurring adjustments that management of the Company considers necessary for a fair presentation of its financial position and operation results. Certain information and footnote disclosures normally included in financial statements prepared in conformity with US GAAP have been condensed or omitted pursuant to such rules and regulations. The results of operations for the six months ended June 30, 2019 are not necessarily indicative of results to be expected for any other interim period or for the full year of 2019. Accordingly, these statements should be read in conjunction with the Company’s audited financial statements as of and for the years ended December 31, 2018.

 

Principles of consolidation

 

The unaudited interim condensed consolidated financial statements include the accounts of the Company, its subsidiaries, and their VIEs. All intercompany transactions and balances are eliminated upon consolidation.

 

Use of estimates and assumptions

 

The preparation of unaudited interim condensed consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities as of the date of the unaudited interim condensed consolidated financial statements and the reported amounts of revenues and expenses during the periods presented. Significant accounting estimates reflected in the Company’s unaudited interim condensed consolidated financial statements include revenue recognition, cost of revenues, allowance for doubtful accounts, the useful lives of property and equipment and intangible assets and impairment of long-lived assets. Actual results could differ from these estimates.

 

F-41

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Foreign currency translation and transaction

 

The reporting currency of the Company is the U.S. dollar. In China, the Company conducts its businesses in the local currency, Renminbi (RMB), as its functional currency. Assets and liabilities are translated at the unified exchange rate as quoted by the People’s Bank of China at the end of the period. The statements of income and cash flows are translated at the average translation rates and the equity accounts are translated at historical rates. Translation adjustments resulting from this process are included in accumulated other comprehensive income (loss). Transaction gains and losses that arise from exchange rate fluctuations on transactions denominated in a currency other than the functional currency are included in the results of operations as incurred.

 

Translation adjustments were included in accumulated other comprehensive income (loss). The balance sheet amounts, with the exception of shareholder’s equity at June 30, 2019 and December 31, 2018 were translated at 6.87 RMB and 6.88 RMB to $1.00. The average translation rates applied to the unaudited interim consolidated statements of income and cash flows for the six months ended June 30, 2019 and 2018 were 6.78 RMB and 6.37 RMB. The balance sheet amounts, with the exception of shareholder’s equity at June 30, 2019 and December 31, 2018 were translated at 7.81 HKD and 7.83 HKD to $1.00. The average translation rates applied to the unaudited interim consolidated statements of income and cash flows six months ended June 30, 2019 and 2018 were 7.84 HKD. The shareholder’s equity accounts were translated at their historical rates. Amounts reported on the statement of cash flows will not necessarily agree with changes in the corresponding balances on the consolidated balance sheet.

 

Fair value measurement

 

The accounting standards regarding fair value of financial instruments and related fair value measurements defines financial instruments and requires disclosure of the fair value of financial instruments held by the Company.

 

The accounting standards define fair value, establish a three-level valuation hierarchy for disclosures of fair value measurements and enhance disclosure requirements for fair value measures. The three levels are defined as follow:

 

  Level 1 inputs to the valuation methodology are quoted prices (unadjusted) for identical assets or liabilities in active markets.
  Level 2 inputs to the valuation methodology include quoted prices, other than those included in Level 1 for similar assets and liabilities in active markets, and inputs that are observable for the assets or liability, either directly or indirectly, for substantially the full term of the financial instruments.
  Level 3 inputs to the valuation methodology are unobservable and significant to the fair value.

 

The carrying amounts included in current assets and current liabilities are reported in the consolidated balance sheet approximate their fair values because of the short term nature of such instrument.

 

Property and equipment

 

Property and equipment are stated at cost less accumulated depreciation and amortization. Depreciation and amortization is computed using the straight-line method after consideration of the estimated useful lives and estimated residual value. The estimated useful lives are as follows:

 

    Useful Life   Estimated Residual Value  
Office equipment and furnishings  

1.5 - 5 years

              -  
Electronic equipment  

2 - 5 years

             -  
Server room equipment   5 years              -  
Vehicle   5 years              -  

 

The cost and related accumulated depreciation and amortization of assets sold or otherwise retired are eliminated from the accounts and any gain or loss is included in the consolidated statements of income and other comprehensive income (loss). Expenditures for maintenance and repairs are charged to expense as incurred, while additions, renewals and betterments, which are expected to extend the useful life of assets, are capitalized. The Company also re-evaluates the periods of depreciation and amortization to determine whether subsequent events and circumstances warrant revised estimates of useful lives.

 

Business Combination

 

The purchase price of an acquired company is allocated between tangible and intangible assets acquired and liabilities assumed from the acquired business based on their estimated fair values. The results of operations of the acquired business are included in the Company’s operating results from the date of acquisition.

 

F-42

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Revenue recognition

 

The Company is an online provider of artwork e-commence services, which allows artists and art dealers and owners to access the art trading market with a wider range of artwork investors through our platforms. We currently facilitate trading by individual customers of stamps, coins, and all kinds of artwork and commodities on our online platforms owned by our subsidiaries in Hong Kong,

 

The Company generates revenue from its services in connection with the trading of artwork on its platform, primarily consisting of listing service fees, transaction fees and other revenues collected from traders (the Company’s customers).

 

Revenue is recognized when all of the following have occurred: (i) persuasive evidence of an arrangement exists, (ii) delivery has occurred or services have been rendered, (iii) the price or fees are fixed or determinable, and (iv) the ability to collect is reasonably assured. Revenue is presented in the consolidated statements of income and comprehensive income net of sales taxes.

 

Listing service fees

 

One-time nonrefundable listing service fees are collected from traders for listing their products on the platform. The Company recognizes listing services fee ratably over the estimated period of the listing. The fees are determined by contracts with the customers as a fixed percentage of the listing price.

 

Transaction fee revenue

 

Transaction fee revenue is generally calculated based on the transaction value of artwork per transaction. Transaction value is the dollar amount of the purchase and sale of the artwork after they are listed on the Company’s platform. Transaction fee revenue is recognized when the transaction is completed.

 

Transaction fee revenue also includes predetermined monthly transaction fees for select traders with large transactions and are negotiated on a case by case basis. Predetermined transaction fees are recognized and earned over the specified service period.

 

Predetermined transaction fees received in advance of the specified service period are recorded as deferred revenue.

 

Marketing service fees

 

Marketing service fee are service fees for promoting and marketing our customers’ artwork. Marketing service fee are determined by contract and are amortized over the service period.

 

F-43

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Other revenues

 

Other revenues (including $31,304 to related parties) primarily includes other service fees for information technology consulting services. Other revenue is negotiated on a case by case basis and is recognized when the related services have been performed based on the specific terms of the contract.

 

Employee benefits

 

Full-time employees of the Company are entitled to staff welfare benefits including medical care, housing funds, pension benefits, unemployment insurance and other welfare, which are government mandated defined contribution plans. The Company is required to accrue for these benefits based on certain percentages of the employees’ respective salaries, subject to certain ceilings, in accordance with the relevant PRC regulations, and make cash contributions to the state-sponsored plans. The expense for the plans was $33,872 and nil for the six months ended June 30, 2019 and 2018.

 

Reclassification

 

Certain prior year amounts have been reclassified to conform to the current period presentation mainly reclassifying prepaid expenses to other receivables, rent payable – related party to other payable – related party (see Note 5 and 13), revenues to revenues – related party, cost of revenues to cost of revenues – related party, selling and marketing expenses to selling and marketing expenses – related party. These reclassifications have no effect on the reported revenues, net income or total assets.

 

Note 3 – Business combinations

 

Acquisition of HKDAEx

 

On May 7, 2019, the Company entered into a Sale and Purchase Agreement to acquire all outstanding equity interest of HKDAEx, which provides the Company’s customers with an online platform in Hong Kong. Pursuant to the terms of the Agreement, the sole shareholder of HKDAEx exchanged its equity interest in HKDAEx for 2,400,000 ordinary shares (pre forward stock split) of Oriental Culture.

 

On May 9, 2019, the Company acquired all outstanding equity interest of HKDAEx.

  

The Company’s acquisition of HKDAEx was accounted for as a business combination in accordance with ASC 805. The Company has allocated the purchase price of HKDAEx based upon the fair value of the identifiable assets acquired and liabilities assumed on the acquisition date. The Company estimated the fair values of the assets acquired and liabilities assumed at the acquisition date in accordance with the business combination standard issued by the FASB. Management of the Company is responsible for determining the fair value of assets acquired, liabilities assumed and intangible assets identified as of the acquisition date and considered a number of factors including valuations from independent appraisers. Acquisition-related costs incurred for the acquisitions are not material and have been expensed as incurred in general and administrative expense.

  

The following table summarizes the fair value of the identifiable assets acquired and liabilities assumed at the acquisition date, which represents the net purchase price allocation at the date of the acquisition of HKDAEx. The fair value of HKDAEx approximated to its book value is detailed below.

 

    Fair Value  
Cash and cash equivalents   $ 630,056  
Other receivables and prepayment     2,327  
Other receivables – related party     274,543  
Property, plant and equipment, net     31,248  
Intangible assets    

615,830

 
Total assets     1,554,004  
         
Other payables – related parties     (24,901 )
Accrued expenses and other liabilities     (33,598 )
Total liabilities     (58,499 )
Net assets acquired   $

1,495,505

 

 

F-44

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

The following unaudited pro forma combined results of operations present the Company’s financial results as if the acquisition of HKDAEx had been completed on January 1, 2018. The unaudited pro forma results do not reflect operating efficiencies or potential cost savings which may result from the consolidation of operations. Accordingly, the unaudited pro forma financial information is not necessarily indicative of the results of operations that the Company would have recognized had it completed the transaction on January 1, 2018. Future results may vary significantly from the results in this pro forma information because of future events and transactions, as well as other factors.

 

    For the Six Months Ended June 30, 2019  
    (Unaudited)  
                Adjustment for            
                Business         Pro Forma  
    Oriental Culture     HKDAEx     Combination     Note   Combined  
OPERATING REVENUES:                            
Revenues   $ 7,830,148     $ -     $ -         $ 7,830,148  
Revenues - related parties     81,390       -       -           81,390  
Sales taxes     (60,023 )     -       -           (60,023 )
Total operating revenues, net     7,851,515       -       -           7,851,515  
                                     
COST OF REVENUES:                                    
Cost of revenues     (272,719 )     -       -           (272,719 )
Cost of revenues - related party     (320,791 )     -       -           (320,791 )
Total cost of revenues     (593,510 )     -       -           (593,510 )
                                     
GROSS PROFIT     7,258,005       -       -           7,258,005  
                                     
OPERATING EXPENSES:                                    
Selling and marketing expenses     (24,369 )     -       -           (24,369 )
Selling and marketing expenses - related party     (23,718 )     -       -           (23,718 )
General and administrative expenses     (833,964 )     (285,290 )     -           (1,119,254 )
Total operating expenses     (882,051 )     (285,290 )     -           (1,167,341 )
                                     
INCOME (LOSS) FROM OPERATIONS     6,375,954       (285,290 )     -           6,090,664  
                                     
OTHER INCOME (EXPENSES), NET     22,524       (4,060 )     -           18,464  
                                     
INCOME (LOSS) BEFORE INCOME TAXES     6,398,478       (289,350 )     -           6,109,128  
                                     
PROVISION FOR INCOME TAX     45,335       -       -           45,335  
                                     
NET INCOME (LOSS)   $ 6,353,143     $ (289,350 )   $ -         $ 6,063,793  
                                     
OTHER COMPREHENSIVE (LOSS) INCOME                                    
Foreign currency translation adjustment     (82,978 )     3,246       -           (79,732 )
                                     
COMPREHENSIVE INCOME (LOSS)   $ 6,270,165     $ (286,104 )   $ -         $ 5,984,061  
                                     
WEIGHTED AVERAGE NUMBER OF ORDINARY SHARES                                    
Basic and diluted*     17,500,000       4,200,000       -           21,700,000  
                                     
EARNINGS PER SHARE                                    
Basic and diluted*   $ 0.36     $ (0.07 )   $ -         $ 0.28  

  

* given retroactive effect to 2-for-1 forward stock split to authorized and issued and outstanding shares as well as the surrender of 12.5% of our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

  

F-45

 

 

    For the Year Ended December 31, 2018  
    (Unaudited)  
                Adjustment for            
                Business         Pro Forma  
    Oriental Culture     HKDAEx     Combination     Note   Combined  
OPERATING REVENUES:                            
Revenues   $ 5,308,896     $ -     $        -         $ 5,308,896  
Revenues - related parties     83,369       -       -           83,369  
Sales taxes     (39,565 )     -       -           (39,565 )
Total operating revenues, net     5,352,700       -       -           5,352,700  
                                     
COST OF REVENUES:                                    
Cost of revenues     (247,073 )     -       -           (247,073 )
Cost of revenues - related party     (253,302 )     -       -           (253,302 )
Total cost of revenues     (500,375 )     -       -           (500,375 )
                                     
GROSS PROFIT     4,852,325       -       -           4,852,325  
                                     
OPERATING EXPENSES:                                    
Selling and marketing expenses     (1,613,798 )     -       -           (1,613,798 )
Selling and marketing expenses - related party     (13,690 )     -       -           (13,690 )
General and administrative expenses     (557,689 )     (245,617 )     -           (803,306 )
Total operating expenses     (2,185,177 )     (245,617 )     -           (2,430,794 )
                                     
INCOME (LOSS) FROM OPERATIONS     2,667,148       (245,617 )     -           2,421,531  
                                     
OTHER INCOME (EXPENSES)                                    
Loss from equity investment     (43,075 )     -       -           (43,075 )
Other income, net     65       42       -           107  
Total other (expenses) income, net     (43,010 )     42       -           (42,968 )
                                     
INCOME (LOSS) BEFORE INCOME TAXES     2,624,138       (245,575 )     -           2,378,563  
                                     
PROVISION FOR INCOME TAX     -       -       -           -  
                                     
NET INCOME (LOSS)   $ 2,624,138     $ (245,575 )   $ -         $ 2,378,563  
                                     
OTHER COMPREHENSIVE (LOSS) INCOME                                    
Foreign currency translation adjustment     (89,262 )     2,786       -           (86,476 )
                                     
COMPREHENSIVE INCOME (LOSS)   $ 2,534,876     $ (242,789 )   $ -         $ 2,292,087  
                                     
WEIGHTED AVERAGE NUMBER OF ORDINARY SHARES                                    
Basic and diluted*     17,500,000       4,200,000       -           21,700,000  
                                     
EARNINGS PER SHARE                                    
Basic and diluted*   $ 0.15     $ (0.06 )   $ -         $ 0.11  

 

* given retroactive effect to 2-for-1 forward stock split to authorized and issued and outstanding shares as well as the surrender of 12.5% of our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

 

No pro forma adjustment is required for the periods presented.

 

The following table presents the amounts of revenue and earnings of HKDAEx since the acquisition date (May 9, 2019) included in the consolidated income statement for the reporting period,

 

    May 9
2019-
June 30,
2019
 
    (Unaudited)  
Revenue   $ -  
Net Loss   $ (83,237 )

  

F-46

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Note 4 – Variable interest entity

 

On May 8, 2019, Oriental Culture WFOE entered into Contractual Arrangements with Jiangsu Yanggu and its Participating Shareholders. The significant terms of these Contractual Arrangements are summarized in “Note 1 - Nature of business and organization” above. As a result, the Company classifies Jiangsu Yanggu and its subsidiaries and as VIEs.

 

A VIE is an entity that has either a total equity investment that is insufficient to permit the entity to finance its activities without additional subordinated financial support, or whose equity investors lack the characteristics of a controlling financial interest, such as through voting rights, right to receive the expected residual returns of the entity or obligation to absorb the expected losses of the entity. The variable interest holder, if any, that has a controlling financial interest in a VIE is deemed to be the primary beneficiary and must consolidate the VIE. Oriental Culture, the WFOE, is deemed to have a controlling financial interest and is the primary beneficiary of Jiangsu Yanggu because it has both of the following characteristics:

 

  (1) The power to direct activities at Jiangsu Yanggu that most significantly impact such entity’s economic performance, and
     
  (2) The obligation to absorb losses of, and the right to receive benefits from Jiangsu Yanggu that could potentially be significant to such entity.

 

Accordingly, the accounts of Jiangsu Yanggu and its subsidiaries are consolidated in the accompanying financial statements pursuant to ASC 810-10, Consolidation.

 

The carrying amounts of the VIEs’ consolidated assets and liabilities are as follows:

 

    June 30,
2019
    December 31,
2018
 
    (Unaudited)        
Current assets   $ 9,008,994     $ 3,532,851  
Property and equipment, net     506,736       282,306  
Other noncurrent assets     1,221,844       670,967  
Total assets     10,737,574       4,486,124  
Total liabilities     (1,728,881 )     (1,781,135 )
Net assets   $ 9,008,693     $ 2,704,989  

 

    June 30,
2019
    December 31,
2018
 
Current liabilities:   (Unaudited)        
Accounts payable   $ 11,042     $ 13,750  
Accounts payable – related party     278,824       258,406  
Customer deposits     703,594       823,290  
Other payables and accrued liabilities     560,881       388,266  
Other payables – related parties     64,099       130,842  
Taxes payable     110,441       166,581  
Total liabilities   $ 1,728,881     $ 1,781,135  

 

The summarized operating results of the VIEs are as follows:

 

   

For the Six Months Ended

June 30,

2019

   

For the Six Months Ended June 30,

2018

 
    (Unaudited)     (Unaudited)  
Operating revenues   $ 7,851,515     $ -  
Income from operations   $ 6,412,396     $ -  
Net income (loss)   $ 6,389,480     $ (43 )

 

F-47

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Note 5 – Other receivables and prepaid expenses

 

Other receivables consist of the following:

 

    June 30,
2019
    December 31,
2018
 
    (Unaudited)        
Receivable from disposal of equity investment*   $ -     $ 427,419  
Rent and other deposits     21,136       1,026  
Employee advances and others     19,969       3,123  
Prepaid expenses     39,443       19,311  
Total other receivables   $ 80,548     $ 450,879  

 

Note 6 – Property and equipment, net

 

Property and equipment consist of the following:

 

    June 30,
2019
    December 31, 2018  
    (Unaudited)        
Electronic equipment   $ 73,127     $ 57,916  
Office equipment     43,487       36,243  
Server room equipment     203,096       202,984  
Vehicle     264,361       -  
Leasehold improvement     15,691       -  
Furniture     8,558       -  
Less: accumulated depreciation     (76,763 )     (14,837 )
Total   $ 531,557     $ 282,306  

 

Depreciation expense for the six months ended June 30, 2019 and 2018, amounted to $49,638 and nil.

 

Note 7 – Intangible assets, net

 

Intangible assets consist of the following:

 

    June 30,
2019
    December 31, 2018  
    (Unaudited)        
Artwork trading platform   $ 792,223     $ 151,647  
Software*     72,781       2,168  
Less: accumulated amortization     (88,329 )     (25,455 )
Total   $ 776,675     $ 128,360  

 

Amortization expenses for the six months ended June 30, 2019 and 2018 amounted to $41,385 and $10,100.

 

* On March 4, 2019, the Company purchased an inventory management system software from their related party, Nanjing Pusdeng Information Technology Co., Ltd. for approximately $72,000.

 

F-48

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Note 8 – Investment

 

In 2018, the Company invested RMB 7,140,000 (USD 1,038,017) in Zhongcang Warehouse Co., Ltd. (“Zhongcang”), a PRC company that engages in providing storage services, in exchange for a 34% equity interest. As the Company has significant influence over the investee through its representation on the board, the investment in Zhongcang was accounted for using the equity method.

 

On December 20, 2018, The Company sold 41% of its equity interest in Zhongcang to Nanjing Zhonghao Culture Media Co., Ltd. for RMB 2,940,000 (USD 427,419), no gain or loss was recognized in the sale. The Company’s holding in Zhongcang was reduced to 20%.

 

In May 2019, the Company sold 2% of its equity interest in Zhongcang to Nanjing Zhonghao Culture Media Co., Ltd. for RMB 417,647 (USD 61,418). As a result, the Company no longer has significant influence over the investee and the investment in Zhongcang was accounted for using the cost method.

 

Note 9 – Other payables and accrued liabilities

 

Other payables and accrued liabilities consist of the following:

 

    June 30,
2019
    December 31, 2018  
    (Unaudited)        
Security deposit*   $ 463,495     $ 290,761  
Salary payable     89,911       88,452  
Others     11,777       9,053  
Total   $ 565,183     $ 388,266  

 

*On December 18, 2018, the Company signed a cooperation agreement with Kashi Xuanzhi Culture media CO., Ltd. (“Kashi Xuanzhi”) to co-develop an application to the online platform. Revenue generated from this application will be shared between Kashi Xuanzhi and the Company. The Company will receive total security deposit of approximately $735,000 (RMB 5,000,000). The security deposit will be return to Kashi Xuanzhi upon dissolution of the cooperation agreement. As of June 30, 2019 and December 31, 018, deposit received amounted to $290,922 and $290,761, respectively.

 

F-49

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Note 10 – Taxes

 

Cayman Islands

 

Under the current laws of the Cayman Islands, the Company is not subject to tax on income or capital gains. Additionally, upon payments of dividends to the shareholders, no Cayman Islands withholding tax will be imposed.

 

Hong Kong

 

Under the current Hong Kong Inland Revenue Ordinance, Oriental Culture HK established in Hong Kong is subject to a 16.5% income tax on taxable income generated from operations in Hong Kong. Payments of dividends from Oriental Culture HK to us are not subject to any Hong Kong withholding tax. The Company did not generate any revenue from operations in Hong Kong since its inception through December 31, 2018, and therefore is not subject to any income taxes in Hong Kong.

 

PRC

 

The WFOE and VIEs incorporated in the PRC are governed by the income tax laws of the PRC and the income tax provisions in respect to operations in the PRC is calculated at the applicable tax rates on the taxable income for the periods based on existing legislation, interpretations and practices in respect thereof. Under the Enterprise Income Tax Laws of the PRC (the “EIT Laws”), domestic enterprises and Foreign Investment Enterprises (the “FIE”) are usually subject to a unified 25% enterprise income tax rate while preferential tax rates, tax holidays and even tax exemptions may be granted on case-by-case basis.

 

Kashi Longrui and Kashi Dongfang were formed and registered in Kashi in Xinjiang Provence, China in 2018. These companies will not be subject to income tax for 5 years, and after the expiration of the initial 5 year period, can obtain another two years of tax exempt status and three years at reduced income tax rate of 12.5% due to the local tax policies to attract companies in various industries.

 

F-50

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Deferred tax assets - China

 

The following table summarizes the significant components of deferred tax assets.

 

    June 30,
2019
    December 31, 2018  
    (Unaudited)        
Net operating losses   $ 17,580     $ 52,719  
Valuation allowance     (17,580 )     (52,719 )
Deferred tax assets, net   $ -     $ -  

 

The following table summarizes the changes in valuation allowance for deferred tax assets.

 

    June 30,
2019
    December 31, 2018  
    (Unaudited)        
Beginning balance   $ -     $ -  
Additions     17,580       52,719  
Ending balance   $ 17,580     $ 52,719  

 

The Company evaluated the recoverable amounts of deferred tax assets, and provided a valuation allowance to the extent that future taxable profits will be available against which the net operating loss and temporary difference can be utilized. The Company considers both positive and negative factors when assessing the future realization of the deferred tax assets and applied weigh to the relative impact of the evidences to the extent it could be objectively verified.

 

The Company’s NOL was mainly from the Company’s VIE and subsidiaries’ cumulative net operating losses (“NOL”) of approximately $81,000 and $37,000 as of June 30, 2019 and June 30, 2018. Management considers projected future losses outweighs other factors and made a full allowance of related deferred tax assets.

 

F-51

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Uncertain tax positions

 

The Company evaluates each uncertain tax position including the potential application of interest and penalties based on the technical merits, and measures the unrecognized benefits associated with the tax positions. As of June 30, 2019, the Company did not have any significant unrecognized uncertain tax positions.

 

Taxes payable consist of the following:

 

    June 30,
2019
    December 31, 2018  
    (Unaudited)        
VAT payable   $ 33,815     $ 140,175  
Other taxes payable     31,910       26,406  
Income tax payable     44,716       -  
Total   $ 110,441     $ 166,581  

 

Note 11– Concentration of credit risk

 

Financial instruments that potentially subject the Company to significant concentrations of credit risk consist primarily of cash and cash equivalents. As of June 30, 2019 and December 31, 2018, $6,047,561 and $1,090,501 was deposited with banks located in the PRC. The Hong Kong Deposit Protection Board pays compensation up to a limit of HKD $500,000 (approximately $64,000) if the bank with which an individual/a company hold its eligible deposit fails. As of June 30, 2019 and December 31, 2018, cash balance of $781,482 and $0, respectively, were maintained at financial institutions in Hong Kong and approximately $64,000 were insured by the Hong Kong Deposit Protection Board. As of June 30, 2019 and December 31, 2018, $2,327,459 and $926,357 was deposited with a third party platform fund account located in the PRC. These balances are not covered by insurance. While management believes that these financial institutions and third party fund holder are of high credit quality, it also continually monitors their credit worthiness.

 

Note 12 - Segment reporting

 

ASC 280, “Segment Reporting”, establishes standards for reporting information about operating segments on a basis consistent with the Company’s internal organizational structure as well as information about geographical areas, business segments and major customers in financial statements for details on the Company’s business segments.

 

The Company uses the management approach to determine reportable operating segments. The management approach considers the internal organization and reporting used by the Company’s chief operating decision maker (“CODM”) for making decisions, allocating resources and assessing performance. The Company’s CODM has been identified as the CEO, who reviews consolidated results when making decisions about allocating resources and assessing performance of the Company.

 

F-52

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Based on the management’s assessment, the Company determined that it has only one operating segment and therefore one reportable segment as defined by ASC 280, which is facilitating e-commerce of artwork trading.

 

    For the Six Months Ended
June 30,
2019
    For the Six Months Ended
June 30,
2018
 
    (Unaudited)     (Unaudited)  
Listing service fees   $ 769,842     $ -  
Transaction fee     2,939,010               -  
Marketing service fees     4,112,056       -  
Other revenues*     90,630       -  
Sales taxes     (60,023 )     -  
Total   $ 7,851,515     $ -  

 

* Including $81,390 to related parties

 

Note 13 – Related party transactions

 

a. Accounts receivable – related parties consist of the following:

 

    Relationship   June 30,
2019
    December 31,
2018
 
        (Unaudited)        
Hunan Huaqiang Artwork Trading Center Co., Ltd.   49% owned by Jinling Cultural Property Exchange Co., Ltd.   $ 12,728     $ 1,817  
Nanjing Culture and Artwork Property Exchange Co., Ltd.   Oriental Culture’s 16.13% beneficial owner, Huajun Gao, is the legal representative     21,819       10,904  
Jinling Cultural Property Exchange Co., Ltd.   Owned by Oriental Culture’s 16.13% beneficial owner, Huajun Gao, and 4.03% beneficial owner, Yin Lu     10,910       -  
Nanjing Jinwang Art Purchase E-commerce Co., Ltd.   Oriental Culture’s 2.42% beneficial owner, Hongxia Wang, is the legal representative and executive director     17,455       -  
Total       $ 62,912     $ 12,721  

 

F-53

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

b. Accounts payable – related party consist of the following:

 

    Relationship   June 30,
2019
    December 31,
2018
 
        (Unaudited)        
Zhongcang Warehouse Co., Ltd.   The Company’s equity investee   $ 275,632     $ 258,406  
Kashi Jinwang Art Purchase E-commerce Co., Ltd.  

100% owned by Nanjing Jinwang Art Purchase E-commerce Co., Ltd.

   

3,192

      -  
Total       $ 278,824     $ 258,406  

 

c. Other payables – related party consist of the following:

 

Other payables – related party are those nontrade payables arising from transactions between the Company and its related party, such as payments paid on behalf of the Company.

 

    Relationship   June 30,
2019
    December 31,
2018
 
        (Unaudited)        
Aimin Kong   Oriental Culture’s 16.3% beneficial owner   $ -     $ 67,882  
Lijia Ni   CFO of Oriental Culture     2,449       -  
HKFAEx Group Limited   Former shareholder of HKDAEx     1,344       -  
Mun Wah Wan   Chairman of the Board of Oriental Culture     3,154       -  
Nanjing Culture and Artwork Property Exchange Co., Ltd.*   Oriental Culture’s 16.13% beneficial owner, Huajun Gao, is the legal representative     26,184       130,842  
Yi Shao   CEO of Oriental Culture     234       -  
Total       $ 33,365     $ 198,724  

 

* The Company has entered into non-cancellable operating lease agreement for an office with the lease term expiring in December 2019 with a monthly rental of approximately $13,000. Total rental expense for the six months ended June 30, 2019 and 2018 amounted to $26,184 and nil. In addition, the Company also purchased approximately $300,000 of fixed assets in November, 2018.

  

F-54

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

d. Revenues – related parties consist of the following:

 

    Relationship   Nature   For the Six Months Ended
June 30,
2019
    For the Six Months Ended
June 30,
2018
 
            (Unaudited)     (Unaudited)  
Nanjing Culture and Artwork Property Exchange Co., Ltd.   Oriental Culture’s 16.13% beneficial owner, Huajun Gao, is the legal representative   Technological service fee revenue   $ 10,435     $ -  
Jinling Cultural Property Rights Exchange Co., Ltd.   Owned by Oriental Culture’s 16.13% beneficial owner, Huajun Gao, and 4.03% beneficial owner, Yin Lu   Technological service fee revenue     10,435       -  
Hunan Huaqiang Artwork Trading Center Co., Ltd.   49% owned by Jinling Cultural Property Exchange Co., Ltd.   Technological service fee revenue     10,434       -  
Nanjing Jinwang Art Purchase E-commerce Co., Ltd.   Oriental Culture’s 2.42% beneficial owner, Hongxia Wang, is the legal representative and executive director   Technological service fee revenue     50,086       -  
Total           $ 81,390     $ -  

 

e. Cost of revenues – related party consists of the following:

 

    Relationship   Nature   For the Six Months Ended
June 30,
2019
    For the Six Months Ended
June 30,
2018
 
            (Unaudited)     (Unaudited)  
Zhongcang Warehouse Co., Ltd.   The Company’s equity investee   Storage fees   $ 320,791     $            -  

 

f. Selling and marketing expenses – related party consists of the following:

 

    Relationship   Nature    

For the Six Months Ended

June 30,

2019

   

For the Six Months Ended
June 30,

2018

 
              (Unaudited)     (Unaudited)  
Kashi Jinwang Art Purchase E-commerce Co., Ltd.   100% owned by Nanjing Jinwang Art Purchase E-commerce Co., Ltd.   Online advertising expenses   $ 23,718     $         -  

 

Note 14 – Equity

 

Restricted net assets

 

The Company’s ability to pay dividends is primarily dependent on the Company receiving distributions of funds from its subsidiary. Relevant PRC statutory laws and regulations permit payments of dividends by Oriental Culture, the WFOE, and its VIE’s Jiangsu Yanggu, Nanjing Yanyu, Nanjing Yanqing, Kashi Longrui, and Kashi Dongfang (collectively “Jiangsu Yanggu PRC entities”) only out of their retained earnings, if any, as determined in accordance with PRC accounting standards and regulations. The results of operations reflected in the accompanying unaudited interim condensed consolidated financial statements prepared in accordance with U.S. GAAP differ from those reflected in the statutory financial statements of Jiangsu Yanggu PRC entities.

 

Jiangsu Yanggu PRC entities are required to set aside at least 10% of their after-tax profits each year, if any, to fund certain statutory reserve funds until such reserve funds reach 50% of their registered capital. In addition, Jiangsu Yanggu PRC entities may allocate a portion of their after-tax profits based on PRC accounting standards to enterprise expansion fund and staff bonus and welfare fund at its discretion. The statutory reserve funds and the discretionary funds are not distributable as cash dividends. Remittance of dividends by a wholly foreign-owned company out of China is subject to examination by the banks designated by the State Administration of Foreign Exchange (“SAFE”).

 

F-55

 

 

ORIENTAL CULTURE HOLDING LTD AND SUBSIDIARIES

 

NOTES TO UNAUDITED INTERIM CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

As a result of the foregoing restrictions, Jiangsu Yanggu PRC entities are restricted in their ability to transfer their net assets to the Company. Foreign exchange and other regulation in the PRC may further restrict Jiangsu Yanggu PRC entities from transferring funds to the Company in the form of dividends, loans and advances. As of June 30, 2019, amounts restricted are the net assets of Jiangsu Yanggu PRC entities, which amounted to $9,008,694.

 

On May 7, 2019, the Company entered into a Sale and Purchase Agreement to acquire all outstanding equity interest of HKDAEx Limited (“HKDAEx”), which provides the Company’s customers with an online platform in Hong Kong. Pursuant to the terms of the Agreement, the sole shareholder of HKDAEx exchanged its equity interest in HKDAEx for 2,400,000 ordinary shares (pre forward stock split) of Oriental Culture.

 

Note 15 – Commitments and Contingencies

 

Contingencies

 

From time to time, the Company may be subject to certain legal proceedings, claims and disputes that arise in the ordinary course of business. Although the outcomes of these legal proceedings cannot be predicted, the Company does not believe these actions, in the aggregate, will have a material adverse impact on its financial position, results of operations or liquidity.

 

Variable interest entity structure

 

In the opinion of management, (i) the corporate structure of the Company is in compliance with existing PRC laws and regulations; (ii) the Contractual Arrangements are valid and binding, and do not result in any violation of PRC laws or regulations currently in effect; and (iii) the business operations of the WFOE and the VIEs are in compliance with existing PRC laws and regulations in all material respects. However, there are substantial uncertainties regarding the interpretation and application of current and future PRC laws and regulations. Accordingly, the Company cannot be assured that PRC regulatory authorities will not ultimately take a contrary view to the foregoing opinion of its management. If the current corporate structure of the Company or the Contractual Arrangements is found to be in violation of any existing or future PRC laws and regulations, the Company may be required to restructure its corporate structure and operations in the PRC to comply with changing and new PRC laws and regulations. In the opinion of management, the likelihood of loss in respect of the Company’s current corporate structure or the Contractual Arrangements is remote based on current facts and circumstances.

 

Lease commitments

 

The Company has entered into two non-cancellable operating lease agreements for two office units. These office units have lease terms expiring in December 2019 and May 2020 with a monthly rental of approximately $13,000 and $2,000, respectively.

 

The Company’s commitments for minimum lease payment under these operating leases as of June 30, 2019 are as follows:

 

Twelve months ending June 30,   Minimum lease
payment
 
2020   $ 99,660  
Total minimum payments required   $ 99,660  

 

Rent expense for the six months ended June 30, 2019 and 2018 were $ 113,786 and nil.

 

Note 16 – Subsequent Event

 

Pursuant to the Amended and Restated Article of Association adopted by a special resolution of the shareholders of the Company dated September 12, 2019, the authorized shares of 50,000,000 ordinary shares were re-designated to 50,000,000 preferred shares of a nominal or par value of USD0.0001 each. All shares authorized were presented retroactively to the earliest period of reporting.

 

On November 8, 2019, the Board of Directors approved a 2-for 1 forward stock split, and all existing shareholders agreed to surrender an aggregate of 3,100,000 ordinary shares, or 12.5% of our then outstanding ordinary shares at no consideration to be reserved as treasury shares of the Company. The transaction is considered as a recapitalization prior to the Company’s initial public offering and all shares were retroactively reported for all periods presented.

 

On November 8, 2019, the shareholders of the Company adopted the Second Amended and Restated Articles of Association to effect a 2 for 1 forward stock split of the total authorized and issued and outstanding shares of the Company. As a result of the 2 for 1 forward stock split, the Company’s total authorized shares are 1,000,000,000 shares comprising of (i) 900,000,000 ordinary shares of a nominal or par value of $0.00005 each and (ii) 100,000,000 preferred shares of a nominal or par value of $0.00005 each, and the Company’s issued and outstanding ordinary shares increased from 12,400,000 shares to 24,800,000 shares, par value of $0.00005.

 

Note 17 – Interim condensed financial information of the parent company

 

The Company performed a test on the restricted net assets of consolidated subsidiaries in accordance with Securities and Exchange Commission Regulation S-X Rule 5-04 and concluded that it was applicable for the Company to disclose the financial statements for the parent company.

 

The subsidiary did not pay any dividend to the Company for the periods presented. For the purpose of presenting parent only financial information, the Company records its investment in its subsidiaries under the equity method of accounting. Such investment is presented on the separate condensed balance sheets of the Company as “Investment in subsidiaries” and the income of the subsidiaries is presented as “share of income of subsidiaries”. Certain information and footnote disclosures generally included in financial statements prepared in accordance with U.S. GAAP have been condensed and omitted.

F-56

 

 

The Company did not have significant capital and other commitments, long-term obligations, or guarantees as of June 30, 2019 and December 31, 2018.

 

PARENT COMPANY BALANCE SHEETS

  

    June 30,     December 31,  
    2019     2018  
    (Unaudited)        
ASSETS            
OTHER ASSETS            
Investment in subsidiaries   $ 10,334,674     $ 2,648,175  
                 
Total assets   $ 10,334,674     $ 2,648,175  
                 
LIABILITIES AND SHAREHOLDERS’ EQUITY                
                 
LIABILITIES   $ -     $ -  
                 
COMMITMENTS AND CONTINGENCIES                
                 
SHAREHOLDERS’ EQUITY                
Preferred shares, $0.00005 par value, 100,000,000 shares authorized, 0 shares issued and outstanding as of June 30, 2019 and December 31, 2018*     -       -  
Ordinary shares, $0.00005 par value, 900,000,000 shares authorized, 24,800,000  and 20,000,000 shares issued and outstanding as of June 30, 2019 and December 31, 2018**     1,240       1,000  
Treasury shares, at cost, 3,100,000 and 2,500,000  shares outstanding as of June 30, 2019 and December 31, 2018***     (155 )     (125 )
Additional paid-in capital     1,607,719       112,424  
Statutory reserves     112,347       73,348  
Retained earnings     8,781,582       2,550,790  
Accumulated other comprehensive loss     (168,059 )     (89,262 )
Total shareholders’ equity     10,334,674       2,648,175  
                 
Total liabilities and shareholders’ equity   $ 10,334,674     $ 2,648,175  

   

* given retroactive effect to re-designation of preferred shares on September 12, 2019.

 

** given retroactive effect to 2-for-1 forward stock split to authorized, issued and outstanding shares.

 

*** given retroactive effect to the surrender of 12.5% of our then outstanding ordinary shares, from our existing shareholders at no consideration to the Company as treasury shares on November 8, 2019.

 

PARENT COMPANY STATEMENTS OF INCOME AND COMPREHENSIVE INCOME

 

    For the Six Months Ended June 30,
2019
    For the Six Months Ended June 30,
2018
 
    (Unaudited)     (Unaudited)  
EQUITY INCOME(LOSS) OF SUBSIDIARIES AND VIES   $ 6,269,791     $ (30,490 )
                 
NET INCOME(LOSS)     6,269,791       (30,490 )
FOREIGN CURRENCY TRANSLATION ADJUSTMENTS     (78,797 )     1,861  
COMPREHENSIVE INCOME (LOSS)   $ 6,190,994     $ (28,629 )

 

PARENT COMPANY STATEMENTS OF CASH FLOWS

 

    For the Six Months Ended June 30,
2019
    For the Six Months Ended June 30,
2018
 
    (Unaudited)     (Unaudited)  
CASH FLOWS FROM OPERATING ACTIVITIES:            
Net income(loss)   $ 6,269,791     $ (30,490 )
Adjustments to reconcile net income to cash used in operating activities:                
Equity income of subsidiaries and VIEs     (6,269,791 )     (30,490 )
Net cash used in operating activities     -       -  
                 
CHANGES IN CASH AND CASH EQUIVALENTS     -       -  
                 
CASH AND CASH EQUIVALENTS, beginning of period     -       -  
                 
CASH AND CASH EQUIVALENTS, end of period   $ -     $ -  
NON-CASH INVESTING ACTIVITY                
Business acquisition through issuance of ordinary shares   $ 1,495,505       -  

 

F-57

 

 

THE AUDITED FINANCIAL STATEMENTS OF HKDAEx AS OF DECEMBER 31, 2018 AND FOR THE PERIOD FROM APRIL 17, 2018 (INCEPTION) TO DECEMBER 31, 2018

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

The Board of Directors and Shareholders of HKDAEx Limited

 

Opinion on the Financial Statements

 

We have audited the accompanying balance sheet of HKDAEx Limited (the “Company”) as of December 31, 2018, and the related statements of income and other comprehensive income, shareholders’ equity, and cash flows for the period from April 17, 2018 (Inception) to December 31, 2018, and the related notes (collectively referred to as the financial statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018, and the results of its operations and its cash flows for the period from April 17, 2018 (Inception) to December 31, 2018, in conformity with accounting principles generally accepted in the United States of America.

 

Basis for Opinion

 

These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

 

Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provide a reasonable basis for our opinion.

 

/s/ Wei, Wei & Co., LLP

 

We have served as the Company’s auditor since 2019.

 

Flushing, New York

September 13, 2019

 

F-58

 

 

HKDAEx Limited

 

BALANCE SHEETS

 

    March 31,     December 31,  
    2019     2018  
    (Unaudited)        
ASSETS            
             
CURRENT ASSETS            
Cash and cash equivalents   $ 370,939     $ 622,538  
Other receivables and prepaid expenses     21,121       9,357  
Total current assets     392,060       631,895  
                 
PROPERTY AND EQUIPMENT, NET     33,352       27,034  
                 
OTHER ASSETS                
Prepayment to related party     -       638,513  
Intangible assets, net     626,343       -  
Total other assets     626,343       638,513  
                 
Total assets   $ 1,051,755     $ 1,297,442  
                 
LIABILITIES AND SHAREHOLDERS’ EQUITY                
                 
CURRENT LIABILITIES                
Other payables and accrued liabilities   $ 34,005     $ 27,831  
Other payables - related parties     26,363       110,672  
Total current liabilities     60,368       138,503  
                 
Total liabilities     60,368       138,503  
                 
COMMITMENTS AND CONTINGENCIES                
                 
SHAREHOLDERS’ EQUITY                
Ordinary shares, HKD $0.01 par value, 1,388,888,888 shares authorized, 1,388,888,888 shares issued and outstanding as of March 31, 2019 and December 31, 2018     1,773,646       1,773,646  
Shares subscription receivables     (865,539 )     (865,539 )
Additional paid-in capital     493,621       493,621  
Accumulated deficit     (410,387 )     (245,575 )
Accumulated other comprehensive income     46       2,786  
Total shareholders’ equity     991,387       1,158,939  
                 
Total liabilities and shareholders’ equity   $ 1,051,755     $ 1,297,442  

 

The accompanying notes are an integral part of these financial statements.

 

F-59

 

 

HKDAEx Limited

 

STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS

 

    For the
Three Months Ended
    For the
Period from
April 17,
2018
(Inception) to
 
    March 31,
2019
    December 31,
2018
 
    (Unaudited)        
             
OPERATING EXPENSES:            
General and administrative expenses   $ (164,897 )   $ (245,617 )
Total operating expenses     (164,897 )     (245,617 )
                 
LOSS FROM OPERATIONS     (164,897 )     (245,617 )
                 
OTHER INCOME                
Other income     85       42  
Total other income     85       42  
                 
LOSS BEFORE INCOME TAXES     (164,812 )     (245,575 )
                 
PROVISION FOR INCOME TAX     -       -  
                 
NET LOSS     (164,812 )     (245,575 )
                 
OTHER COMPREHENSIVE (LOSS) INCOME                
Foreign currency translation adjustment     (2,740 )     2,786  
                 
COMPREHENSIVE LOSS   $ (167,552 )   $ (242,789 )
                 
WEIGHTED AVERAGE NUMBER OF ORDINARY SHARES                
Basic and diluted     1,388,888,888       1,388,888,888  
                 
EARNINGS PER SHARE                
Basic and diluted   $ (0.00 )   $ (0.00 )

 

The accompanying notes are an integral part of these financial statements.

 

F-60

 

 

HKDAEx Limited

 

STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY

 

                                  Accumulated        
                Additional                 other        
    Ordinary shares     paid-in     Subscription     Accumulated     comprehensive        
    Shares     Par Value     capital     receivable     deficit     income     Total  
BALANCE, April 17, 2018     -     $ -     $ -     $ -     $ -     $ -     $ -  
Capital contribution     1,388,888,888       1,773,646       493,621       (865,539 )     -       -       1,401,728  
Net loss     -       -       -       -       (245,575 )     -       (245,575 )
Foreign currency translation     -       -       -       -       -       2,786       2,786  
BALANCE, DECEMBER 31, 2018     1,388,888,888     $ 1,773,646     $ 493,621     $ (865,539 )   $ (245,575 )   $ 2,786     $ 1,158,939  
Net loss     -       -       -       -       (164,812 )     -       (164,812 )
Foreign currency translation     -       -       -       -       -       (2,740 )     (2,740 )
BALANCE, March 31, 2019 (Unaudited)     1,388,888,888       1,773,646       493,621       (865,539 )     (410,387 )     46       991,387  

 

The accompanying notes are an integral part of these financial statements.

 

F-61

 

 

HKDAEx Limited

 

STATEMENTS OF CASH FLOWS

 

    For the Three Months Ended     For the Period from
April 17,
2018
(Inception) to
 
    March 31,
2019
    December 31,
2018
 
    (Unaudited)        
CASH FLOWS FROM OPERATING ACTIVITIES:            
Net loss   $ (164,812 )   $ (245,575 )
Adjustments to reconcile (net loss) to net cash used in operating activities:                
Depreciation and amortization     15,127       8,164  
Change in operating assets and liabilities:                
(Increase) in other receivables and prepaid expenses     (11,764 )     (9,357 )
Increase in other payables and accrued liabilities     6,174       27,831  
(Decrease) increase in other payables - related party     (84,309 )     110,672  
Net cash used in operating activities     (239,584 )     (108,265 )
                 
CASH FLOWS FROM INVESTING ACTIVITIES:                
Purchase of property, plant and equipment     (11,621 )     (35,198 )
Prepayment to purchase of intangible asset     -       (638,513 )
Net cash used in investing activities     (11,621 )     (673,711 )
                 
CASH FLOWS FROM FINANCING ACTIVITIES:                
Capital contribution     -       1,401,728  
Net cash provided by financing activities     -       1,401,728  
                 
EFFECT OF EXCHANGE RATE ON CASH     (394 )     2,786  
                 
(DECREASE) INCREASE IN CASH     (251,599 )     622,538  
                 
CASH, beginning of period     622,538       -  
                 
CASH, end of period   $ 370,939     $ 622,538  
                 
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:                
Cash paid for income tax   $ -     $ -  
Cash paid for interest expense   $ -     $ -  
                 
NON-CASH TRANSACTIONS OF INVESTING AND FINANCING ACTIVITIES                
Capital contribution on shares subscription receivables   $ -     $ 865,539  
Transfer of prepayment to intangible asset   $ (638,513 )   $ -  

 

The accompanying notes are an integral part of these financial statements.

 

F-62

 

 

HKDAEx Limited

 

NOTES TO FINANCIAL STATEMENTS

 

Note 1 – Nature of business and organization

 

HKDAEx Limited (“HKDAEx” or the “Company”) is a limited liability company incorporated in Hong Kong on April 18, 2018. The Company engages in providing online platform in facilitating e-commerce of artwork trading in Hong Kong, China.

 

Note 2 – Summary of significant accounting policies

 

Basis of presentation

 

The accompanying financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”) and pursuant to the rules and regulations of the Securities Exchange Commission (“SEC”).

  

Use of estimates and assumptions

 

The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities as of the date of the financial statements and the reported amounts of expenses during the periods presented. Significant accounting estimates reflected in the Company’s financial statements include the useful lives of property and equipment and impairment of long-lived assets. Actual results could differ from these estimates.

 

Foreign currency translation and transaction

 

The reporting currency of the Company is the U.S. dollar. In China, the Company conducts its businesses in the local currency, Hong Kong Dollar (HKD), as its functional currency. Assets and liabilities are translated at the unified exchange rate as quoted by the People’s Bank of China at the end of the period. The statements of income and cash flows are translated at the average translation rates and the equity accounts are translated at historical rates. Translation adjustments resulting from this process are included in accumulated other comprehensive income. Transaction gains and losses that arise from exchange rate fluctuations on transactions denominated in a currency other than the functional currency are included in the results of operations as incurred.

 

Translation adjustments were included in accumulated other comprehensive income. The balance sheet amounts, with the exception of shareholder’s equity at March 31, 2019 and December 31, 2018 were translated at 7.85HKD and 7.83 HKD to $1.00, respectively. The shareholder’s equity accounts were translated at their historical rates. The average translation rates applied to the consolidated statements of operations and comprehensive income (loss) and cash flows for the three months ended March 31, 2019 and the year ended December 31, 2018 were 7.85 HKD and 7.84 HKD to $1.00, respectively. Amounts reported on the consolidated statement of cash flows will not necessarily agree with changes in the corresponding balances on the consolidated balance sheets.

 

Fair value measurement

 

The accounting standards regarding fair value of financial instruments and related fair value measurements defines financial instruments and requires disclosure of the fair value of financial instruments held by the Company.

 

The accounting standards define fair value, establish a three-level valuation hierarchy for disclosures of fair value measurements and enhance disclosure requirements for fair value measures. The three levels are defined as follow:

 

  Level 1 inputs to the valuation methodology are quoted prices (unadjusted) for identical assets or liabilities in active markets.
  Level 2 inputs to the valuation methodology include quoted prices, other than those included in Level 1 for similar assets and liabilities in active markets, and inputs that are observable for the assets or liability, either directly or indirectly, for substantially the full term of the financial instruments.
  Level 3 inputs to the valuation methodology are unobservable and significant to the fair value.

  

F-63

 

 

The carrying amounts included in current assets and current liabilities are reported in the balance sheet approximate their fair values because of the short term nature of such instrument.

 

Cash and cash equivalents

 

Cash and cash equivalents consist of demand deposits placed with banks which are unrestricted as to immediate withdrawal and use.

  

Other receivables

 

Other receivables represented security deposits and cash advances to pay certain of the Company’s expenses in the normal course of business. An allowance for doubtful accounts may be established and recorded based on management’s assessment on the likelihood of collection. Management reviews its receivables on a regular basis to determine if the allowance for doubtful accounts is adequate, and adjusts the allowance when necessary. Delinquent account balances are written-off against the allowance for doubtful accounts after management has determined that the likelihood of collection is not probable. No allowance was required as of March 31, 2019 and December 31, 2018.

 

Prepaid expenses

 

Prepaid expenses represented advance payments made to its vendors for certain prepaid services such as information technology services.

 

Prepayment to related party

 

Prepayment to related party is cash payment to the Company’s former shareholder, Hong Kong Knoware Technology Limited, for purchase of an online artworks trading platform. Management regularly reviews aging of prepayments and records an allowance when management believes receipts of goods due are at risk. As of March 31, 2019 and December 31, 2018, no allowance was deemed necessary.

 

Property and equipment

 

Property and equipment are stated at cost less accumulated depreciation and amortization. Depreciation and amortization is computed using the straight-line method after consideration of the estimated useful lives and estimated residual value. The estimated useful lives are as follows:

 

    Useful Life   Estimated Residual Value  
Office equipment and furnishings   2 years     -  
Electronic equipment   2 years     -  
Leasehold improvements   Shorter of lease term or useful lives     -  

 

The cost and related accumulated depreciation and amortization of assets sold or otherwise retired are eliminated from the accounts and any gain or loss is included in the statements of income and other comprehensive loss. Expenditures for maintenance and repairs are charged to expense as incurred, while additions, renewals and betterments, which are expected to extend the useful life of assets, are capitalized. The Company also re-evaluates the periods of depreciation and amortization to determine whether subsequent events and circumstances warrant revised estimates of useful lives.

 

Intangible Assets, net

 

Intangible assets, net, are stated at cost, less accumulated amortization. Amortization expense is recognized on the straight-line basis over the estimated useful lives of the assets as follows:

 

Classification   Estimated Useful Life  
Artwork trading platform   5 years  

 

F-64

 

 

Impairment for long-lived assets

 

Long-lived assets, including property and equipment with finite lives are reviewed for impairment whenever events or changes in circumstances (such as a significant adverse change to market conditions that will impact the future use of the assets) indicate that the carrying value of an asset may not be recoverable. The Company assesses the recoverability of the asset based on the undiscounted future cash flows the asset is expected to generate and recognize an impairment loss when estimated discounted future cash flows expected to result from the use of the asset plus net proceeds expected from disposition of the asset, if any, are less than the carrying value of the asset. If an impairment is identified, the Company reduces the carrying amount of the asset to its estimated fair value based on a discounted cash flow approach or, when available and appropriate, to comparable market values. As of March 31, 2019 and December 31, 2018, no impairment of long-lived assets was recognized.

 

Income taxes

 

The Company accounts for income taxes in accordance with U.S. GAAP for income taxes. Under the asset and liability method as required by this accounting standard, the recognition of deferred income tax assets and liabilities for the expected future tax consequences of temporary differences between the income tax basis and financial reporting basis of assets and liabilities. Provision for income taxes consists of taxes currently due plus deferred taxes.

  

The charge for taxation is based on the results for the fiscal year as adjusted for items, which are non-assessable or disallowed. It is calculated using tax rates that have been enacted or substantively enacted by the balance sheet date.

 

Deferred taxes are accounted for using the asset and liability method in respect of temporary differences arising from differences between the carrying amount of assets and liabilities in the financial statements and the corresponding tax basis used in the computation of assessable tax profit. Deferred tax liabilities are recognized for all future taxable temporary differences. Deferred tax assets are recognized to the extent that it is probable that taxable income will be available against which deductible temporary differences can be utilized. Deferred tax is calculated using tax rates that are expected to apply to the period when the asset is realized or the liability is settled.

 

Deferred tax is charged or credited in the operations of statement, except when it is related to items credited or charged directly to equity. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of the deferred tax assets will not be realized. Current income taxes are provided for in accordance with the laws of the relevant taxing authorities.

 

An uncertain tax position is recognized as a benefit only if it is “more likely than not” that the tax position would be sustained in a tax examination, with a tax examination being presumed to occur. The amount recognized is the largest amount of tax benefit that is greater than 50% likely of being realized on examination. For tax positions not meeting the “more likely than not” test, no tax benefit is recorded. Penalties and interest incurred related to underpayment of income tax are classified as income tax expense in the period incurred.

 

Commitments and Contingencies

 

In the normal course of business, the Company is subject to contingencies, including legal proceedings and claims arising out of the business that relate to a wide range of matters, such as government investigations and tax matters. The Company recognizes a liability for such contingency if it determines it is probable that a loss has occurred and a reasonable estimate of the loss can be made. The Company may consider many factors in making these assessments including historical and the specific facts and circumstances of each matter.

 

Earnings (loss) per share

 

Basic earnings (loss) per share are computed by dividing income (loss) available to shareholders of the Company by the weighted average ordinary shares outstanding during the period. Diluted earnings per share takes into account the potential dilution that could occur if securities or other contracts to issue ordinary shares were exercised and converted into ordinary shares. As of March 31, 2019 and December 31, 2018, there were no dilutive shares.

 

F-65

 

 

Recently issued accounting pronouncements

  

In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842), to increase the transparency and comparability about leases among entities. The new guidance requires lessees to recognize a lease liability and a corresponding lease asset for virtually all lease contracts. It also requires additional disclosures about leasing arrangements. ASU 2016-02 is effective for interim and annual periods beginning after December 15, 2018, and requires a modified retrospective approach to adoption assuming the Company will remain an emerging growth company at that date. Early adoption is permitted. In September 2017, the FASB issued ASU No. 2017-13, which to clarify effective dates that public business entities and other entities were required to adopt ASC Topic 842 for annual reporting. ASU No. 2017-13 also amended that all components of a leveraged lease be recalculated from inception of the lease based on the revised after tax cash flows arising from the change in the tax law, including revised tax rates. The difference between the amounts originally recorded and the recalculated amounts must be included in income of the year in which the tax law is enacted. The Company has not early adopted this update and it will become effective on January 1, 2020. The Company is currently evaluating the impact of this new standard on its financial statements and related disclosures.

  

In July 2017, the FASB Issued ASU 2017-11, Earnings Per Share (Topic 260), Distinguishing Liabilities from Equity (Topic 480) and Derivatives and Hedging (Topic 815). The amendments in Part I of the Update change the reclassification analysis of certain equity-lined financial instruments (or embedded features) with down round features. The amendments in Part II of this Update re-characterize the indefinite deferral of certain provisions of Topic 480 that now are presented as pending content in the Codification, to a scope exception. For public business entities, the amendments in Part I of this Update are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. For all other entities, the amendments in Part I of this Update are effective for fiscal years beginning after December 15, 2019, and interim periods within fiscal years beginning after December 15, 2020. Early adoption is permitted for all entities, including adoption in an interim period. If an entity early adopts the amendments in an interim period, any adjustments should be reflected as of the beginning of the fiscal year that includes that interim period. The amendments in Part II of this Update do not require any transition guidance because those amendments do not have an accounting effect. The Company does not believe the adoption of this ASU will have a material effect on the Company’s financial statements.

  

In February 2018, the FASB issued ASU 2018-02, Income Statement—Reporting Comprehensive Income (Topic 220): Reclassification of Certain Tax Effects from Accumulated Other Comprehensive Income. The amendments in this Update affect any entity that is required to apply the provisions of Topic 220, Income Statement—Reporting Comprehensive Income, and has items of other comprehensive income for which the related tax effects are presented in other comprehensive income as required by GAAP. The amendments in this Update are effective for all entities for fiscal years beginning after December 15, 2018, and interim periods within those fiscal years. Early adoption of the amendments in this Update is permitted, including adoption in any interim period, (1) for public business entities for reporting periods for which financial statements have not yet been issued and (2) for all other entities for reporting periods for which financial statements have not yet been made available for issuance. The amendments in this Update should be applied either in the period of adoption or retrospectively to each period (or periods) in which the effect of the change in the U.S. federal corporate income tax rate in the Tax Cuts and Jobs Act is recognized. The Company does not believe the adoption of this ASU will have a material effect on the Company’s financial statements.

 

Except as mentioned above, the Company does not believe other recently issued but not yet effective accounting standards, if currently adopted, would have a material effect on the Company’s balance sheets, statements of income and comprehensive income and statements of cash flows.

 

Note 3 – Property and equipment, net

 

Property and equipment consist of the following:

 

    March 31,     December 31,  
    2019     2018  
    (Unaudited)        
Electronic equipment   $ 15,504     $ 13,511  
Office equipment and furnishing     15,703       7,863  
Leasehold improvements     15,612       13,824  
Less: accumulated depreciation     (13,467 )     (8,164 )
Property and equipment, net   $ 33,352     $ 27,034  

 

Depreciation expense for the three months ended March 31, 2019 and the year ended December 31, 2018, amounted to $4,506 and $8,157, respectively.

 

F-66

 

 

Note 4 – Intangible assets, net

 

Intangible assets consist of the following:

 

    March 31,     December 31,  
    2019     2018  
    (Unaudited)        
Artwork trading platform*   $ 636,959     $       -  
Less: accumulated amortization     (10,616 )     -  
Total   $ 626,343     $ -  

 

Amortization expense for the three months ended March 31, 2019 and the year ended December 31, 2018, amounted to $10,621 and nil, respectively.

 

Note 5 – Taxes

  

Hong Kong

 

Under the current Hong Kong Inland Revenue Ordinance, HKDAEx established in Hong Kong is subject to a 16.5% income tax on taxable income generated from operations in Hong Kong. The Company did not generate any revenue from operations in Hong Kong since its inception through March 31, 2019, and therefore is not subject to any income taxes in Hong Kong.

 

The following table reconciles Hong Kong statutory rates to the Company’s effective tax rate:

 

    March 31,
2019
    December 31,
2018
 
    (Unaudited)        
Hong Kong income tax rate     16.5 %     16.5 %
Net operating losses     (16.5 )%     (16.5 )%
Effective tax rate     - %     - %

  

Deferred tax assets – Hong Kong

 

The following table summarizes the significant components of deferred tax assets.

 

    March 31,
2019
    December 31,
2018
 
    (Unaudited)        
Net operating losses   $ 67,714     $ 40,520  
Valuation allowance     (67,714 )     (40,520 )
Deferred tax assets, net   $ -     $ -  

  

F-67

 

 

The following table summarizes the changes in valuation allowance for deferred tax assets.

 

    March 31,
2019
    December 31,
2018
 
    (Unaudited)        
Beginning balance   $ 40,520     $ -  
Additions     27,194       40,520  
Ending balance   $ 67,714     $ 40,520  

 

The Company evaluated the recoverable amounts of deferred tax assets, and provided a valuation allowance to the extent that future taxable profits will be available against which the net operating loss and temporary difference can be utilized. The Company considers both positive and negative factors when assessing the future realization of the deferred tax assets and applied weigh to the relative impact of the evidences to the extent it could be objectively verified.

 

The Company’s cumulative net operating losses (“NOL”) of approximately $0.4 million as of March 31, 2019. Management considers projected future losses outweighs other factors and made a full allowance of related deferred tax assets.

 

Uncertain tax positions

 

The Company evaluates each uncertain tax position including the potential application of interest and penalties based on the technical merits, and measures the unrecognized benefits associated with the tax positions. As of March 31, 2019 and December 31, 2018, the Company did not have any significant unrecognized uncertain tax positions.

 

Note 6 – Concentration of credit risks

 

Financial instruments that potentially subject the Company to significant concentrations of credit risk consist primarily of cash and cash equivalents. As of March 31, 2019 and December 31, 2018, $370,939 and $622,538 were deposited with a bank located in Hong Kong, respectively. While management believes that the financial institution is of high credit quality, it also continually monitors their credit worthiness.

 

Note 7 – Related party transactions

 

  a. Prepayment to related party consists of the following:

 

The Company signed a Product Sales Agreement with its former shareholder, Hong Kong Knoware Technology Limited, to develop an online artwork trading platform on May 18, 2018. The platform went online in March 2019.

 

    Relationship   March 31,
2019
    December 31,
2018
 
        (Unaudited)        
Kong Hong Knoware Technology Limited   Former shareholder of HKDAEx   $ -     $ 638,513  
Total       $ -     $ 638,513  

   

  b. Other payables – related parties consist of the following:

 

Other payables – related parties are those nontrade payables arising from transactions between the Company and its related parties, such as payments paid on behalf of the Company.

 

    Relationship   March 31,
2019
    December 31,
2018
 
        (Unaudited)        
Wan Mun Wah   Director of HKDAEx   $ 19,357     $ 110,672  
HKFAEx Limited   Former shareholder of HKDAEx     5,668       -  
HKFAEx Group Limited   Former shareholder of HKDAEx     1,338       -  
Total       $ 26,363     $ 110,672  

 

F-68

 

 

The Company signed an Administration Services Agreement with their former shareholder, HKFAEx Limited, and engaged them to provide administration services on a monthly basis including but not limited to office spaces and facilities, daily office administrative and accounting functions. For the three months ended March 31, 2019 and the year ended December 31, 2018, rent and property management expense amounted to approximately $21,000 and $35,000, respectively. For the three months ended March 31, 2019 and the year ended December 31, 2018, other service fees amounted to approximately $21,000 and $22,000, respectively.  

 

Note 8 – Equity

 

Ordinary shares

 

HKDAEx was established under the laws of Hong Kong on April 18, 2018 and its shareholder, HKFAEx Limited, held 1 ordinary share with a par value of HKD $0.01. On May 17, 2018, HKDAEx signed written resolution and allotted 599,999,999 and 400,000,000 ordinary shares to HKFAEx Limited and Hong Kong Knoware Technology Limited, respectively. A total of 1,000,000,000 ordinary shares with a par value of HKD $0.01 were issued. HKFAEx Limited and Hong Kong Knoware Technology Limited hold 600,000,000 and 400,000,000 shares in HKDAEx, respectively.

 

On November 12, 2018, the Company entered into a Share Purchase Agreement with Charmind Creation Limited (“the Purchaser”) pursuant to which the Company sold to the Purchaser 250,000,000 ordinary shares in exchange for HKD $5.0 million (approximately USD $0.6 million).

 

On December 18, 2018, the Company entered into a Share Purchase Agreement with Talent Capital (HK) Limited (“the Purchaser”) pursuant to which the Company sold to the Purchaser 138,888,888 ordinary shares in exchange for approximately HKD $2.8 million (approximately USD $0.3 million).

 

Note 9 – Commitments and Contingencies

 

Contingencies

 

From time to time, the Company may be subject to certain legal proceedings, claims and disputes that arise in the ordinary course of business. Although the outcomes of these legal proceedings cannot be predicted, the Company does not believe these actions, in the aggregate, will have a material adverse impact on its financial position, results of operations or liquidity.

 

Note 10 – Subsequent Event

 

On April 11, 2019, shareholders of HKDAEx collectively sold 1,388,888,888 shares to HKFAEX Group Limited for HKD $13.0 million (approximately USD $1.7 million).

 

On May 9, 2019, HKFAEX Group Limited (“HKFAEX”), the sole shareholder of HKDAEx, entered into a Sale and Purchase Agreement (the “Agreement”) with Oriental Culture. Pursuant to the terms of the Agreement, HKFAEX exchanged its equity interest in the Company for 2,400,000 ordinary shares (pre forward stock split) of Oriental Culture.

 

F-69

 

 

 

2,500,000 Ordinary Shares

 

 

 

 

 

 

Oriental Culture Holding LTD

 

 

 

PROSPECTUS

 

 

 

VIEWTRADE SECURITIES, INC.

 

Until and including ●, 2019 (25 days after the date of this prospectus), all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus.  This is in addition to the dealers’ obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.

 

 

The date of this prospectus is ●, 2019.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

ITEM 6.  Indemnification of Directors and Officers

 

We are a Cayman Islands exempted company limited by shares. Cayman 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 Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime.  Our current memorandum and articles of association provide for indemnification of our officers and directors for any liability incurred in their capacities as such, except through their own willful negligence or default.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

In addition, we have entered into indemnification agreements with our directors and executive officers that provide such persons with additional indemnification beyond that provided in our current memorandum and articles of association. 

 

ITEM 7.  Recent Sales of Unregistered Securities

 

During the past three years, we have issued the following ordinary shares. We believe that each of the following issuances was exempt from registration under the Securities Act pursuant to Section 4(a)(2) of the Securities Act regarding transactions not involving a public offering. No underwriters were involved in these issuances of ordinary shares.

 

Purchaser   Date of 
Issuance
    Number of
Ordinary Shares (1)
    Consideration  
Sertus Nominees (Cayman) Limited     2018.11.29       1     $ 0.0001  
Oriental Culture Investment Development LTD     2018.11.29       1,999,999     $ 199.9999  
Oriental Culture Investment Communication LTD     2018.11.29       2,000,000     $ 200.00  
Oriental Culture Investment Design LTD     2018.11.29       500,000     $ 50.00  
Oriental Culture Investment Information Technology LTD     2018.11.29       500,000     $ 50.00  
Oriental Culture Investment Technology LTD     2018.11.29       500,000     $ 50.00  
Oriental Culture Investment Management LTD     2018.11.29       500,000     $ 50.00  
Oriental Culture Investment Creativity LTD     2018.11.29       500,000     $ 50.00  
Oriental Culture Investment Diffusion LTD     2018.11.29       700,000     $ 70.00  
Oriental Culture Investment Arts LTD     2018.11.29       300,000     $ 30.00  
Oriental Culture Investment Brand Planning LTD     2018.11.29       500,000     $ 50.00  
Oriental Culture Investment Training LTD     2018.11.29       500,000     $ 50.00  
Oriental Culture Investment Progress Investment Management LTD     2018.11.29       500,000     $ 50.00  
Oriental Culture investment Consulting LTD     2018.11.29       500,000     $ 50.00  
Oriental Culture Investment Technology Development LTD     2018.11.29       500,000     $ 50.00  
HKFAEx Group Limited     2019.5.7       2,400,000       (2 )
Total Count             12,400,000          

 

 

(1) The number of ordinary shares issued to each of the purchasers only reflect the issuance by the Company on the dates listed above, which are prior to the 2-for-1 forward stock split and shareholders surrender of 12.5% of the ordinary shares in an aggregate of 3,100,000 ordinary shares on November 8, 2019.
(2) On May 9, 2019, we acquired all of the outstanding equity interests of HKDAEx from its original shareholder, HKFAEx Group Limited, for consideration of 2,400,000 of our ordinary shares (pre forward stock split).

 

II-1

 

 

ITEM 8.  Exhibits and Financial Statement Schedules

 

(a) Exhibits

 

The following exhibits are filed as part of this registration statement:

 

Exhibit No.   Description
1.1   Form of Underwriting Agreement*
3.1   Certificate of Incorporation**
3.2   Second Amended and Restated Memorandum of Association**
3.3   Second Amended and Restated Articles of Association**
4.1   Specimen certificate evidencing ordinary shares*
4.2   Form of Underwriters’ Warrant*
5.1   Opinion of Maples & Calder (Hong Kong) LLP regarding the validity of the ordinary shares being registered and certain Cayman Islands tax matters*
5.2   Opinion of Allbright Law Offices*
8.1   Opinion of Foster Garvey P.C. regarding certain U.S. tax matters*
10.1   Technical Consultation and Service Agreement, by and between Nanjing Rongke Business Consulting Service Co., Ltd. and Jiangsu Yanggu Culture Development Ltd., dated May 8, 2019.**
10.2   Equity Pledge Agreement, by and among Nanjing Rongke Business Consulting Service Co., Ltd., Jiangsu Yanggu Culture Development Ltd. and Jiangsu Yanggu’s shareholders dated May 8, 2019.**
10.3   Equity Option Agreement, by and among Nanjing Rongke Business Consulting Service Co., Ltd., Jiangsu Yanggu Culture Development Ltd. and Jiangsu Yanggu’s shareholders dated May 8, 2019.**
10.4   Voting Rights Proxy  and Financial Supporting Agreement, by and among Nanjing Rongke Business Consulting Service Co., Ltd., Jiangsu Yanggu Culture Development Ltd. and Jiangsu Yanggu’s shareholders dated May 8, 2019.**
10.5   Form of Employment Agreement between the Registrant and executive officers of the Registrant**†
10.6   Form of Indemnification Agreement between the Registrant and executive officers and directors of the Registrant**†
10.7   Form of Indemnification Escrow Agreement*
10.8   Form of Director Agreement**†
10.9   Fixed Asset Transfer Contract by and between Nanjing Culture and Artwork Property Exchange Co., Ltd. and Kashi Longrui Business Management Services Co., Ltd.**
10.10   Website Advertising Space Leasing Agreement by and between Kashi Jinwang Art Purchase E-commerce Co., Ltd. and Kashi Longrui Business Management Services Co., Ltd.**
10.11   Technical Maintenance Services Contract by and between Hunan Huaqiang Artwork Trading Center Co., Ltd. and Nanjing Yanyu Information Technology Co., Ltd.**
10.12   Technical Maintenance Services Contract by and between Kashi Jinwang Art Purchase E-commerce Co., Ltd. and Nanjing Yanyu Information Technology Co., Ltd.**
10.13   Technical Maintenance Services Contract by and between Nanjing Jinwang Art Purchase E-commerce Co., Ltd and Nanjing Yanyu Information Technology Co., Ltd. on July 1, 2018.**
10.14   Cooperation Agreement and Amendment to Cooperation Agreement by and between Kashi Dongfang Cangpin Culture Development Co., Ltd. and Zhongcang Warehouse Co., Ltd. dated September 1, 2018 and September 15, 2018.**
10.15   Office Premises Use Contract by and between Nanjing Culture and Artwork Property Exchange Co., Ltd. and Kashi Longrui Business Management Services Co., Ltd. dated January 1, 2019.**
10.16   Technical Maintenance Services Contract by and between Nanjing Culture and Artwork Property Exchange Co., Ltd. and Nanjing Yanyu Information Technology Co., Ltd. dated July 1, 2018.**
10.17   Technical Maintenance Services Contract by and between Jinling Cultural Property Rights Exchange Co., Ltd. and Nanjing Yanyu Information Technology Co., Ltd. dated October 1, 2018.**
21.1   List of subsidiaries of the Registrant**
23.1   Consent of Wei, Wei & Co., LLP**
23.2   Consent of Maples & Calder (Hong Kong) LLP (included in Exhibit 5.1)*
23.3   Consent of Allbright Law Offices (included in Exhibit 5.2)*
23.5   Consent of Foster Garvey P.C. (included in Exhibit 8.1)*
24.1   Power of Attorney (included on the signature page of this Registration Statement)**

 

 

* To be filed by amendment
** Filed herewith
Management contract or compensatory arrangement

 

II-2

 

 

ITEM 9.  Undertakings

 

The undersigned registrant hereby undertakes that:

 

(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;

 

(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% 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;

 

(2) That, for the purpose of determining any liability under the Securities Act, 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) To file a post-effective amendment to the registration statement to include any financial statements required by “Item 8.A. of Form 20-F (17 CFR 249.220f)” at the start of any delayed offering or throughout a continuous offering.

 

(5)(ii) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

 

II-3

 

 

(6) That, for the purpose of determining liability of the registrant under the Securities Act 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.

 

Insofar as indemnification for liabilities arising under the Securities Act 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 SEC 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.

 

The undersigned registrant hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.

 

The undersigned registrant hereby undertakes that:

 

(1) For purposes of determining any liability under the Securities Act, 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, 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.

 

II-4

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Nanjing, China, on November 12, 2019.

 

  Oriental Culture Holding LTD
     
  By: /s/ Yi Shao
  Name:   Yi Shao
  Title: Chief Executive Officer and Director
(Principal Executive Officer)

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS that each of the undersigned officers and directors of Oriental Culture Holding LTD hereby constitutes and appoints Yi Shao and Lijia Ni or either of them individually, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for and in such person’s name, place and stead, in the capacities indicated below, to sign this Registration Statement on Form F-1 of Oriental Culture Holding LTD and any and all amendments (including post-effective amendments) thereto, and to file or cause to be filed the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as such person might, or could, do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, and each of them, or his 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 below by the following persons in the capacities and on the dates indicated:

 

Signature   Title   Date
         
/s/ Yi Shao   Chief Executive Officer and Director   November 12, 2019
Yi Shao   (Principal Executive Officer)    
         
/s/ Lijia Ni   Chief Financial Officer   November 12, 2019
Lijia Ni   (Principal Financial Officer and Principal Accounting Officer)    
         
/s/ Mun Wah Wan   Chairman of the Board of Directors   November 12, 2019
Mun Wah Wan        
         
/s/ Y. Tristan Kuo   Director   November 12, 2019
Y. Tristan Kuo        
         
/s/ Xiaobing Liu   Director   November 12, 2019
Xiaobing Liu        
         
/s/ Longxiang Wang   Director   November 12, 2019
Longxiang Wang        

 

SIGNATURE OF AUTHORIZED UNITED STATES REPRESENTATIVE OF THE REGISTRANT

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Oriental Culture Holding LTD has signed this registration statement on the 12th day of November, 2019.

 

  Authorized U.S. Representative
  Cogency Global Inc.
   
  /s/ Richard Arthur
  Name:  Richard Arthur
  Title: Assistant Secretary

 

 

II-5

 

 

Exhibit 3.1

 

 

Exhibit 3.2

 

 

 

THE CAYMAN ISLANDS

 

 

THE COMPANIES LAW

 

(AS AMENDED)

 

 

 

Second Amended and Restated Memorandum of Association

 

of

 

Oriental Culture Holding LTD

 

(as adopted by a Special Resolution on 8 November 2019)

 

 

 

 

 

 

 

 

THE CAYMAN ISLANDS

 

THE COMPANIES LAW (AS AMENDED)

 

SECOND AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION

 

OF

 

Oriental Culture Holding LTD

(the “Company”)

(as adopted by a Special Resolution on 8 November 2019)

 

The share capital of the Company is USD50,000.00 divided into 1,000,000,000 shares comprising of (i)

 

1. Name

 

The name of the Company is Oriental Culture Holding LTD.

 

2. Registered Office

 

The registered office of the Company shall be situated at the Office of Sertus Incorporations (Cayman) Limited, Sertus Chambers, Governors Square, Suite # 5-204, 23 Lime Tree Bay Avenue, P.O. Box 2547, Grand Cayman, KY1-1104, Cayman Islands, or such other place in the Cayman Islands as the Directors may, from time to time decide, being the registered office of the Company.

 

3. General Objects and Powers

 

The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by Section 7(4) of The Companies Law (As Amended) or as the same may be amended from time to time, or any other law of the Cayman Islands.

 

4. Limitations on the Company’s Business

 

4.1 For the purposes of the Companies Law (As Amended) the Company has no power to:

 

(a) carry on the business of a Bank or Trust Company without being licensed in that behalf under the provisions of the Banks & Trust Companies Law (2013 Revision); or

 

(b) to carry on Insurance Business from within the Cayman Islands or the business of an Insurance Manager, Agent, Sub-agent or Broker without being licensed in that behalf under the provisions of the Insurance Law (2010 Revision); or

 

(c) to carry on the business of Company Management without being licensed in that behalf under the provisions of the Companies Management Law (2003 Revision).

 

4.2 The Company shall not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands; provided that nothing in this section shall be construed as to prevent the Company effecting and concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the carrying on of its business outside the Cayman Islands.

 

5. Company Limited by Shares

 

The Company is a company limited by shares. The liability of each member is limited to the amount, if any, unpaid on the shares held by such member.

 

- 1 -

 

 

6. Authorised Shares

 

The share capital of the Company is USD50,000.00 divided into 1,000,000,000 shares comprising of (i) 900,000,000 ordinary shares of a nominal or par value of USD0.00005 each; and (ii) 100,000,000 preferred shares of a nominal or par value of USD0.00005 each.

 

Subject to the provisions of the Companies Law (As Amended) and the Articles of Association of the Company, the Company shall have power to redeem or purchase any of its shares and to increase, reduce, sub-divide or consolidate the share capital and to issue all or any part of its capital whether original, redeemed, increased or reduced with or without any preference, priority or special privilege or subject to any postponement of rights or to any conditions or restrictions whatsoever and so that unless the conditions of issue shall otherwise expressly provide every issue of shares whether stated to be ordinary, preference or otherwise shall be subject to the powers on the part of the Company hereinbefore provided.

 

7. Continuation

 

Subject to the provisions of the Companies Law (As Amended) and the Articles of Association of the Company, the Company may exercise the power contained in Section 206 of The Companies Law (As Amended) to deregister in the Cayman Islands and be registered by way of continuation under the laws of any jurisdiction outside the Cayman Islands.

 

 

- 2 -

 

Exhibit 3.3

 

 

 

THE CAYMAN ISLANDS

 

 

THE COMPANIES LAW

 

(AS AMENDED)

 

 

 

Second Amended and Restated Articles of Association

 

of

 

Oriental Culture Holding LTD

 

(as adopted by a Special Resolution on 8 November 2019)

 

 

 

 

 

 

 

 

THE CAYMAN ISLANDS

 

THE COMPANIES LAW (AS AMENDED)

 

SECOND AMENDED AND RESATED ARTICLES OF ASSOCIATION

 

OF

 

Oriental Culture Holding LTD
(the “Company”)

 

(as adopted by a Special Resolution on 8 November 2019)

 

1. Table A

 

The Table Ain the First Schedule of The Companies Law (As Amended) shall not apply to this Company and the following shall constitute the Articles of Association of the Company.

 

2. Definitions and Interpretation

 

2.1 References in these Second Amended and Restated Articles of Association (“Articles”) to the “Companies Law” shall mean The Companies Law (As Amended) of the Cayman Islands and any statutory amendments or re-enactment thereof. In these Articles, save where the content otherwise requires:

 

“Class” means any class or classes of Shares as may from time to time be issued by the Company;

 

“Chairman” means the chairman of the Board of Directors;

 

“Designated Stock Exchange” means the stock exchange in the United States on which any Shares are listed for trading;

 

Directors” and “Board of Directors” means the Directors of the Company for the time being, or as the case may be, the Directors assembled as a board or as a committee thereof, and “Director” means any one of the Directors;

 

Members” means those persons whose names are entered in the register of members as the holders of shares and includes each subscriber of the Memorandum pending the issue to him of the subscriber share or shares, and “Member” means any one of them;

 

Memorandum of Association” means the Second Amended and Restated Memorandum of Association of the Company, as amended and re-stated from time to time;

 

Ordinary Resolution” means a resolution:

 

passed by a simple majority of such Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Member is entitled; or

 

approved in writing by all of the Members entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Members and the effective date of the resolution so adopted shall be the date on which the instrument, or the last of such instruments if more than one, is executed;

 

- 1 -

 

 

Paid up” means paid up as to the par value and any premium payable in respect of the issue of any shares and includes credited as paid up;

 

Register of Members” means the register to be kept by the Company in accordance with Section 40 of the Companies Law;

 

Seal” means the Common Seal of the Company (if any) including any facsimile thereof;

 

Shares” means shares in the capital of the Company, including a fraction of any of them and “Share” means any one of them;

 

Special Resolution” means a resolution passed in accordance with Section 60 of the Companies Law, being a resolution:

 

(a) passed by a majority of not less than two-thirds of such Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a Special Resolution has been duly given and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Member is entitled, or

 

(b) approved in writing by all of the Members entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Members and the effective date of the Special Resolution so adopted shall be the date on which the instrument or the last of such instruments if more than one, is executed.

 

2.2 In these Articles, words and expressions defined in the Companies Law shall have the same meaning and, unless otherwise required by the context, (a) the singular shall include the plural and vice versa; (b) the masculine shall include the feminine and the neuter and references to persons shall include companies and all legal entities capable of having a legal existence; (c) “may” shall be construed as permissive and “shall” shall be construed as imperative; (d) a reference to a dollar or dollars (or $) is a reference to dollars of the United States of America; and (e) references to a statutory enactment shall include reference to any amendment or re-enactment thereof for the time being in force.

 

3. Shares

 

3.1 Subject to these Articles, all Shares for the time being unissued shall be under the control of the Directors who may, in their absolute discretion and without the approval of the Members, cause the Company to:

 

(a) issue, allot and dispose of Shares (including, without limitation, preferred shares) (whether in certificated form or non-certificated form) to such persons, in such manner, on such terms and having such rights and being subject to such restrictions as they may from time to time determine;

 

(b) grant rights over Shares or other securities to be issued in one or more classes or series as they deem necessary or appropriate and determine the designations, powers, preferences, privileges and other rights attaching to such Shares or securities, including dividend rights, voting rights, conversion rights, terms of redemption and liquidation preferences, any or all of which may be greater than the powers, preferences, privileges and rights associated with the then issued and outstanding Shares, at such times and on such other terms as they think proper; and

 

(c) grant options with respect to Shares and issue warrants or similar instruments with respect thereto.

 

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3.2 The Directors may authorise the division of Shares into any number of Classes and the different Classes shall be authorised, established and designated (or re-designated as the case may be) and the variations in the relative rights (including, without limitation, voting, dividend and redemption rights), restrictions, preferences, privileges and payment obligations as between the different Classes (if any) may be fixed and determined by the Directors or by an Ordinary Resolution. The Directors may issue Shares with such preferred or other rights, all or any of which may be greater than the rights of Ordinary Shares, at such time and on such terms as they may think appropriate. The Directors may issue from time to time, out of the authorised share capital of the Company (other than the authorised but unissued Ordinary Shares), series of preferred shares in their absolute discretion and without approval of the Members; provided, however, before any preferred shares of any such series are issued, the Directors shall by resolution of Directors determine, with respect to any series of preferred shares, the terms and rights of that series, including:.

 

(a) the designation of such series, the number of preferred shares to constitute such series and the subscription price thereof if different from the par value thereof;

 

(b) whether the preferred shares of such series shall have voting rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights, which may be general or limited;

 

(c) the dividends, if any, payable on such series, whether any such dividends shall be cumulative, and, if so, from what dates, the conditions and dates upon which such dividends shall be payable, and the preference or relation which such dividends shall bear to the dividends payable on any shares of any other class or any other series of shares;

 

(d) whether the preferred shares of such series shall be subject to redemption by the Company, and, if so, the times, prices and other conditions of such redemption;

 

(e) whether the preferred shares of such series shall have any rights to receive any part of the assets available for distribution amongst the Members upon the liquidation of the Company, and, if so, the terms of such liquidation preference, and the relation which such liquidation preference shall bear to the entitlements of the holders of shares of any other class or any other series of shares;

 

(f) whether the preferred shares of such series shall be subject to the operation of a retirement or sinking fund and, if so, the extent to and manner in which any such retirement or sinking fund shall be applied to the purchase or redemption of the preferred shares of such series for retirement or other corporate purposes and the terms and provisions relative to the operation thereof;

 

(g) whether the preferred shares of such series shall be convertible into, or exchangeable for, shares of any other class or any other series of preferred shares or any other securities and, if so, the price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting the same, and any other terms and conditions of conversion or exchange;

 

(h) the limitations and restrictions, if any, to be effective while any preferred shares of such series are outstanding upon the payment of dividends or the making of other distributions on, and upon the purchase, redemption or other acquisition by the Company of, the existing shares or shares of any other class of shares or any other series of preferred shares;

 

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(i) the conditions or restrictions, if any, upon the creation of indebtedness of the Company or upon the issue of any additional shares, including additional shares of such series or of any other class of shares or any other series of preferred shares; and

 

(j) any other powers, preferences and relative, participating, optional and other special rights, and any qualifications, limitations and restrictions thereof;

 

and, for such purposes, the Directors may reserve an appropriate number of Shares for the time being unissued.

 

4. Share Certificates

 

4.1 Every person whose name is entered as a Member in the Register of Members, shall without payment, be entitled to a share certificate signed by a Director of the Company specifying the share or shares held and the amount paid up thereof, provided that in respect of a share or shares held jointly by several persons, the Company shall not be bound to issue more than one share certificate and delivery of a certificate for a share to one of several joint holders shall be sufficient delivery to all.

 

4.2 If a share certificate is worn out, lost or defaced, it may be renewed on production of the worn out or defaced certificate, or on satisfactory proof of its loss together with such indemnity as the Directors may reasonably require. Any Member receiving a share certificate shall indemnify and hold the Company and its officers harmless from any loss or liability which it or they may incur by reason of wrongful or fraudulent use or representation made by any person by virtue of the possession of such a share certificate.

 

5. Issue of Shares

 

5.1 Subject to the provisions of these Articles, the unissued shares of the Company (whether forming part of the original or any increased authorised shares) shall be at the disposal of the Directors who may offer, allot, grant options over or otherwise dispose of them to such persons at such times and for such consideration, and upon such terms and conditions as the Directors may determine.

 

5.2 The Company may in so far as may be permitted by Companies Law, pay a commission to any person in consideration of his subscribing or agreeing to subscribe whether absolutely or conditionally for any shares. Such commissions may be satisfied by the payment of cash or the lodgement of fully or partly paid-up shares or partly in one way and partly in the other. The Company may also on any issue of shares pay such brokerage as may be lawful.

 

6. Variation of Rights Attaching to Shares

 

6.1 Whenever the capital of the Company is divided into different Classes the rights attached to any such Class may, subject to any rights or restrictions for the time being attached to any Class, only be materially adversely varied with the consent in writing of the holders of all of the issued Shares of that Class or with the sanction of an Ordinary Resolution passed at a separate meeting of the holders of the Shares of that Class. To every such separate meeting all the provisions of these Articles relating to general meetings of the Company or to the proceedings thereat shall, mutatis mutandis, apply, except that the necessary quorum shall be one or more Members holding or representing by proxy at least one-third of the issued Shares of the relevant Class (but so that if at any adjourned meeting of such holders a quorum as above defined is not present, those Members who are present shall form a quorum) and that, subject to any rights or restrictions for the time being attached to the Shares of that Class, every Member of the Class shall on a poll have one vote for each Share of the Class held by him. For the purposes of this Article the Directors may treat all the Classes or any two or more Classes as forming one Class if they consider that all such Classes would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate Classes.

 

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6.2 The rights conferred upon the holders of the Shares of any Class issued with preferred or other rights shall not, subject to any rights or restrictions for the time being attached to the Shares of that Class, be deemed to be materially adversely varied by, inter alia, the creation, allotment or issue of further Shares ranking pari passu with or subsequent to them or the redemption or purchase of any Shares of any Class by the Company. The rights of the holders of Shares shall not be deemed to be materially adversely varied by the creation or issue of Shares with preferred or other rights including, without limitation, the creation of Shares with enhanced or weighted voting rights.

 

7. Transfer of Shares

 

7.1 Subject to such of the restriction of these Articles as may be applicable, any Member may transfer all or any of his shares by an instrument in writing in any usual or common form or any other form which the Directors may approve or on behalf of the transferor and if in respect of a nil or partly paid up share or if so required by the Directors shall also be executed on behalf of the transferee and shall be accompanied by the certificate of the shares to which it relates and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer. The transferor shall be deemed to remain a holder of the share until the name of the transferee is entered in the Register of Members in respect thereof.

 

7.2 The Directors may in their absolute discretion to decline to register any transfer of any share, whether or not it is a fully paid share, without assigning any reason for so doing. If the Directors refuse to register a transfer they shall within 2 months of the date on which the transfer was lodged with the Company send to the transferor and transferee notice of the refusal.

 

7.3 All instruments of transfer which shall be registered shall be retained by the Company, but any instrument of transfer which the Directors may decline to register shall (except in any case of fraud) be returned to the person depositing the same.

 

7.4 The registration of transfers may be suspended at such times and for such periods as the Directors may from time to time determine, provided always that such registration shall not be suspended for more than 45 days in any year.

 

8. Transmission of Shares

 

8.1 In case of the death of a Member, the survivor or survivors, or the legal personal representatives of the deceased survivor, where the deceased was a joint holder, and the legal personal representatives of the deceased, where he was a sole holder, shall be the only persons recognized by the Company as having any title to the shares.

 

8.2 Any person becoming entitled to a share in consequence of the death, bankruptcy, liquidation or dissolution of a Member shall, upon such evidence being produced as may from time to time be properly required by the Directors, and subject as hereinafter provided, elect either to be registered himself as holder of the share or to have some person nominated by him registered as the transferee thereof, but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the share by that Member before his death or bankruptcy, as the case may be.

 

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8.3 A person becoming entitled to a share by reason of the death, bankruptcy, liquidation or dissolution of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the share, except that he shall not, before being registered as a Member in respect of the share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the Company.

 

9. Redemption and Purchase of Own Shares

 

9.1 Subject to the provisions of the Companies Law, the Company may:

 

(a) issue shares on terms that they are to be redeemed or are liable to be redeemed at the option of the Company on such terms and in such manner as the Directors may determine before the issue of such shares;

 

(b) purchase its own shares (including any redeemable shares) on such terms and in such manner as the Directors may determine and agree with the Member; and

 

(c) make a payment in respect of the redemption or purchase of its own shares in any manner permitted by the Companies Law, including out of capital.

 

9.2 A share which is liable to be redeemed by the Company shall be redeemed by the Company giving to the Member notice in writing of the intention to redeem such shares (a “Redemption Notice”) and specifying the date of such redemption which must be a day on which banks in the Cayman Islands are open for business.

 

9.3 Any share in respect of which Redemption Notice has been given shall not be entitled to participate in the profits of the Company in respect of the period after the date specified as the date of redemption in the Redemption Notice.

 

9.4 The redemption or purchase of any share shall not be deemed to give rise to the redemption or purchase of any other share.

 

9.5 At the date specified in the Redemption Notice, or the date on which the shares are to be purchased, the holder of the shares being redeemed or purchased shall be bound to deliver up to the Company at its Registered Office the certificate thereof for cancellation and thereupon the Company shall pay to him the redemption or purchase moneys in respect thereof.

 

9.6 The Directors may when making payments in respect of redemption or purchase of shares, if authorised by the terms of issue of the shares being redeemed or purchased or with the agreement of the holder of such shares, make such payment either in cash or in specie.

 

10. Fractional Shares

 

The Directors may issue fractions of a share of any class of shares, and, if so issued, a fraction of a share (calculated to three decimal points) shall be subject to and carry the corresponding fraction of liabilities (whether with respect to any unpaid amount thereon, contribution, calls or otherwise), limitations, preferences, privileges, qualifications, restrictions, rights (including, without limitation, voting and participation rights) and other attributes of a whole share of the same class of shares. If more than one fraction of a share of the same class is issued to or acquired by the same Member such fractions shall be accumulated. For the avoidance of doubt, in these Articles the expression “share” shall include a fraction of a share.

 

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11. Lien

 

11.1 The Company shall have a first priority lien and charge on every share (not being a fully paid up share) for all moneys (whether presently payable or not) called or payable at a fixed time in respect of that share, and the Company shall also have a first priority lien and charge on all shares (other than fully paid up shares) registered in the name of a member for all moneys presently payable by him or his estate to the Company, but the Directors may at any time declare any share to be wholly or in part exempt from the provisions of this Article. The Company’s lien, if any, on a share shall extend to all dividends and other moneys payable in respect thereon.

 

11.2 The Company may sell, in such manner as the Directors think fit, any shares on which the Company has a lien, but no sale shall be made unless some sum in respect of which the lien exists is presently payable, nor until the expiration of 14 days after a notice in writing, stating and demanding payment of such part of the amount in respect of which the lien exists as is presently payable, has been given to the registered holder for the time being of the share, or the persons entitled thereto of which the Company has notice, by reason of his death or bankruptcy, winding up or otherwise by operation of Companies Law or court order.

 

11.3 To give effect to any such sale the Directors may authorise some person to transfer the shares sold to the purchaser thereof. The purchaser shall be registered as the holder of the shares comprised in any such transfer, and he shall not be bound to see to the application of the purchase money, nor shall his title to the shares be affected by any irregularity or invalidity in the proceedings in reference to the sale.

 

11.4 The proceeds of the sale shall be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is presently payable, and the residue, if any, shall (subject to a like lien for sums not presently payable as existed upon the shares prior to the sale) be paid to the person entitled to the shares at the date of the sale.

 

12. Calls on Shares

 

12.1 The Directors may from time to time make calls upon the Members in respect of any moneys unpaid on their shares (whether on account of the nominal value of the shares or by way of premium or otherwise), and each Member shall (subject to receiving at least 14 days’ notice in writing specifying the time or times and place of payment) pay to the Company at the time or times and place so specified the amount called on his shares. The non-receipt of a notice of any call by, or the accidental omission to give notices of a call to, any Members shall not invalidate the call. A call may be revoked or postponed as the Directors may determine.

 

12.2 The joint holders of a share shall be jointly and severally liable to pay all calls in respect thereof.

 

12.3 If a sum called in respect of a share is remain unpaid before or on the day appointed for payment thereof, the person from whom the sum is due shall pay interest on the sum from the day appointed for the payment thereof to the time of the actual payment at such rate not exceeding 10 percent per annum as the Directors may determine, but the Directors shall be at liberty to waive payment of that interest wholly or in part.

 

12.4 Any sum which by the terms of issue of a share becomes payable on allotment or at any fixed date, whether on account of the nominal value of the share or by way of premium or otherwise, shall for the purposes of these Articles be deemed to be a call duly made, notified and payable on the date on which by the terms of issue the same becomes payable, and in case of non-payment all the relevant provisions of these Articles as to payment of interest and expenses, forfeiture or otherwise shall apply as if such sum had become payable by virtue of a call duly made and notified.

 

12.5 The provisions of these Articles as to the liability of joint holders and as to payment of interest shall apply in the case of non-payment of any sum which, by the terms of issue of a share, becomes payable at a fixed time, whether on account of the amount of the share, or by way of premium, as if the same had become payable by virtue of a call duly made and notified.

 

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12.6 The Directors may make arrangements on the issue of shares, differentiate between the Members, as to the amount of calls to be paid and the times of payment.

 

12.7 The Directors may, if they think fit, receive from any Member willing to advance the same, all or any part of the moneys uncalled and unpaid upon any shares held by him, and upon all or any of the moneys so advanced may (until the same would, but for such advance, become presently payable) pay interest at such rate not exceeding 10 percent per annum (unless the Company in general meeting shall otherwise direct), as may be agreed between the Directors and the Member paying the sum in advance.

 

13. Forfeiture of Shares

 

13.1 If a Member fails to pay any call or instalment of a call with any interest on the day appointed for payment thereof, the Directors may, at any time thereafter during such time as any part of such call or instalment remains unpaid, serve a notice in writing on him requiring payment of so much of the call or instalment as is unpaid, together with any interest accrued and expenses incurred by the reason of such non-payment.

 

13.2 The notice shall name a further day (not earlier than the expiration of 14 days from the date of the service of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or before the time appointed the shares in respect of which the call was made will be liable to be forfeited.

 

13.3 If the requirements of any such notice as aforesaid are not complied with, any share in respect of which the notice has been given may at any time thereafter, before the payment required by notice has been made, be forfeited by a resolution of the Directors to that effect and such forfeiture shall extend to all dividends declared in respect of the share so forfeited but not actually paid before such forfeiture.

 

13.4 A forfeited share may be sold, cancelled or otherwise disposed of on such terms and in such manner as the Directors in their absolute discretion think fit, and at any time before a sale, cancellation or disposition the forfeiture may be cancelled on such terms as the Directors in their absolute discretion think fit.

 

13.5 A person whose shares have been forfeited shall cease to be a Member in respect of the forfeited shares, but shall, notwithstanding, remain liable to pay to the Company all moneys which, at the date of forfeiture, were payable by him to the Company in respect of the shares, but his liability shall cease if and when the Company receives payment in full of the fully paid up amount of the shares.

 

13.6 A statutory declaration in writing that the declarant is a Director of the Company, and that a share in the Company has been duly forfeited or surrendered or sold to satisfy a lien of the Company on a date stated in the declaration, shall be conclusive evidence of the facts therein stated as against all persons claiming to be entitled to the share. The Company may receive the consideration, if any, given for the share on any sale or disposition thereof and may execute a transfer of the share in favour of the person to whom the share is sold or disposed of and he shall thereupon be registered as the holder of the share, and shall not be bound to see to the application of the purchase money, if any, nor shall his title to the share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the share.

 

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13.7 When any shares have been forfeited, an entry shall be made in the Register of Members recording the forfeiture and the date thereof, and so soon as the shares so forfeited have been sold or otherwise disposed of, an entry shall be made of the manner and date of the sale or disposal thereof.

 

13.8 The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum, which by the terms of issue of a share, becomes due and payable at any time, whether on account of the amount of the share, or by way of premium, as if the same had been payable by virtue of a call duly made and notified.

 

14. Alteration of Share Capital

 

14.1 The Company may from time to time by Ordinary Resolution increase the share capital by such sum, to be divided into shares of such classes and amount, as the resolution shall prescribe.

 

14.2 The Company may by Ordinary Resolution:

 

(a) consolidate and divide all or any of its share capital into shares of larger amount than its existing shares;

 

(b) subdivide its existing shares, or any of them, into shares of a smaller amount provided that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in case of the share from which the reduced share is derived;

 

(c) cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person and diminish the amount of its share capital by the amount of the shares so cancelled; and

 

(d) convert all or any of its paid up shares into stock and reconvert that stock into paid up shares of any denomination.

 

14.3 The Company may by Special Resolution reduce its share capital and any capital redemption reserve in any manner, authorised and consent required by Companies Law.

 

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15. Closing Register of Members or Fixing Record Date

 

15.1 For the purpose of determining those Members that are entitled to receive notice of, attend or vote at any meeting of Members or any adjournment thereof, or those Members that are entitled to receive payment of any dividend, or in order to make a determination as to who is a Member for any other purpose, the Directors may provide that the Register of Members shall be closed for transfers for a stated period but not to exceed in any case 40 days. If the Register of Members shall be so closed for the purpose of determining those Members that are entitled to receive notice of, attend or vote at a meeting of Members such register shall be so closed for at least 10 days immediately preceding such meeting and the record date for such determination shall be the first day of the closure of the Register of Members.

 

15.2 In lieu of or apart from closing the Register of Members, the Directors may fix in advance a date as the record date for any such determination of those Members that are entitled to receive notice of, attend or vote at a meeting of the Members and for the purpose of determining those Members that are entitled to receive payment of any dividend the Directors may, at or within 90 days prior to the date of declaration of such dividend fix a subsequent date as the record date for such determination.

 

15.3 If the Register of Members is not so closed and no record date is fixed for the determination of those Members that are entitled to receive notice of, attend or vote at a meeting of Members or those Members that are entitled to receive payment of a dividend, the date on which notice of the meeting is posted or the date on which the resolution of the Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of those Members that are entitled to receive notice of, attend or vote at a meeting of Members has been made as provided in this section, such determination shall apply to any adjournment thereof.

 

16. General Meeting of Members

 

16.1 All general meetings other than annual general meetings shall be called extraordinary general meetings. The Directors, whenever they consider necessary or desirable, may convene meetings of the Members of the Company. The Directors shall convene a meeting of Members upon the written requisition of any Members or Members entitled to attend and vote at general meeting of the Company who hold not less than one-third (1/3) of the paid up voting share capital of the Company in respect to the matter for which the meeting is requested, deposited at the registered office of the Company specifying the objects of the meeting for a date no later than 45 days from the date of deposit of the requisition signed by the requisitionists. If the Directors do not convene such meeting for a date not later than 60 days after the date of such deposit, the requisitionists themselves may convene the general meeting in the same manner, as nearly as possible, as that in which meetings may be convened by the Directors, and all reasonable expenses incurred by the requisitionists as a result of the failure of the Directors shall be reimbursed to them by the Company.

 

16.2 If at any time there are no Directors of the Company, any two Members (or if there is only one Member then that Member) entitled to vote at general meetings of the Company may convene a general meeting in the same manner as nearly as possible as that in which meetings may be convened by the Directors.

 

17. Notice of General Meetings

 

17.1 At least seven days’ notice counting from the date service is deemed to take place as provided in these Articles specifying the place, the day and the hour of the meeting and, in case of special business, the general nature of that business, shall be given in manner hereinafter provided or in such other manner (if any) as may be prescribed by the Company by Ordinary Resolution to such persons as are, under these Articles, entitled to receive such notices from the Company.

 

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17.2 Notwithstanding the aforesaid Article, a meeting of Members is held in contravention of the requirement to give notice shall be deemed to have been validly held if the consent of all Members entitled to receive notice of some particular meeting and attend and vote thereat, that meeting may be convened by such shorter notice or without notice and in such manner as those Members may think fit.

 

17.3 The accidental omission to give notice of a meeting to, or the non-receipt of a notice of a meeting by any Member shall not invalidate the proceedings at any meeting.

 

18. Proceedings at General Meetings

 

18.1 No business shall be transacted at any general meeting unless a quorum of Members is present at the time when the meeting proceeds to business. Save as otherwise provided by these Articles, a quorum shall consist of one or more Members present in person or by proxy holding at least one-third (1/3) of the paid up voting share capital of the Company. If the Company has only one Member, that only Member present in person or by proxy shall be a quorum for all purposes.

 

18.2 If within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of Members, shall be dissolved. In any other case it shall stand adjourned to the same day in the next week, at the same time and place or to such other day and at such other time and place as the Directors may decide, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the meeting shall be dissolved.

 

18.3 The Chairman or a Director (acting by a resolution of the Director) may call general meetings of the Company.

 

18.4 The Directors may cancel or postpone any duly convened general meeting at any time prior to such meeting, except for general meetings requisitioned by the Members in accordance with these Articles, for any reason or for no reason, upon notice in writing to Members. A postponement may be for a stated period of any length or indefinitely as the Directors may determine.

 

18.5 The Chairman may, with the consent of any meeting, at which a quorum is present (and shall if so directed by the meeting) adjourn any meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting is adjourned for 10 days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Save as aforesaid, it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.

 

18.6 All questions submitted to a meeting shall be decided by an Ordinary Resolution except where a greater majority is required by these Articles or by the Companies Law. In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place or at which the poll is demanded, shall be entitled to a second or casting vote.

 

18.7 Any one or more Members may participate in a general meeting by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participating by such means shall constitute presence in person at a meeting. A resolution in writing signed by all the Members for the time being entitled to receive notice of and to attend and vote at general meetings (or being corporations by their duly authorized representatives) shall be as valid and effective as if the same had been passed at a general meeting of the Company duly convened and held.

 

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19. Votes of Members

 

19.1 Subject to any rights and restrictions for the time being attached to any class or classes of shares, on a show of hands every Member present in person and every person representing a Member by proxy shall at a general meeting of the Company have one vote and on a poll every Member and every person representing a Member by proxy shall have one vote for each share of which he or the person represented by proxy is the holder.

 

19.2 At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands by a simple majority, unless a poll is (before or on the declaration of the result of the show of hands) demanded by the Chairman; or one or more Members present in person or by proxy entitled to vote and who together hold not less than 10 percent of the paid up voting share capital of the Company. Unless a poll is so demanded, a declaration by the Chairman that a resolution has, on a show of hands, been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the book of the proceedings of the Company, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution.

 

19.3 If a poll is duly demanded it shall be taken in such manner as the Chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. The demand for a poll may be withdrawn.

 

19.4 In the case of an equality of votes, whether on a show of hands, or on a poll, the Chairman of the meeting at which the show of hands takes place, or at which the poll is demanded, shall be entitled to a second or casting vote.

 

19.5 A poll demanded on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the Chairman of the meeting directs, and any business other than that upon which a poll has been demanded may be proceeded with pending the taking of the poll.

 

19.6 In the case of joint holders the vote of the senior who tenders a vote whether in person or by proxy shall be accepted to the exclusion of the votes of the joint holders and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members.

 

19.7 A Member of unsound mind, or in respect of whom an order has been made by any court having jurisdiction in lunacy, may vote, whether on a show of hands or on a poll, by his committee, or other person in the nature of a committee appointed by that court, and any such committee or other person, may on a poll, vote by proxy.

 

19.8 No Member shall be entitled to vote at any general meeting unless all calls or other sums presently payable by him in respect of shares in the Company held by him and carrying the right to vote have been paid.

 

20. Members’ Proxies

 

20.1 The instrument appointing a proxy shall be in writing under the hand of the appointor or of his attorney duly authorised in writing or, if the appointor is a corporation, either under seal or under the hand of an officer or attorney duly authorised. A proxy need not be a Member of the Company. An instrument appointing a proxy may be in any usual or common form or such other form as the Directors may approve. The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll.

 

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20.2 On a poll votes may be given either personally or by proxy. The instrument appointing a proxy shall be deposited at the Registered Office or at such other place appointed for the meeting before the time for holding the meeting at which the person named in such instrument proposes to vote.

 

21. Corporations Acting by Representatives at Meetings

 

Any corporation or other form of corporate legal entity which is a Member or a Director of the Company may, by resolution of its directors or other governing body, authorise such person as it thinks fit to act as its representative at any meeting of the Members or any class of Members of the Company or of the Board of Directors or of a Committee of Directors, and the person so authorised shall be entitled to exercise the same powers on behalf of such corporation which he represents as that corporation could exercise if it were an individual Member or Director of the Company.

 

22. Directors

 

22.1 The name of the first Director(s) shall either be determined in writing by a majority (or in the case of a sole subscriber that subscriber) of, or elected at a meeting of, the subscribers of the Memorandum of Association. The Company may by Ordinary Resolution appoint any person to be a Director.

 

22.2 The Board of Directors shall have a Chairman elected and appointed by a majority of the Directors then in office. The period for which the Chairman will hold office will also be determined by a majority of all of the Directors then in office. The Chairman shall preside as chairman at every meeting of the Board of Directors. To the extent the Chairman is not present at a meeting of the Board of Directors within fifteen minutes after the time appointed for holding the same, the attending Directors may choose one of their number to be the chairman of the meeting.

 

22.3 An appointment of a Director may be on terms that the Director shall automatically retire from office (unless he has sooner vacated office) at the next or a subsequent annual general meeting or upon any specified event or after any specified period in a written agreement between the Company and the Director, if any; but no such term shall be implied in the absence of express provision. Each Director whose term of office expires shall be eligible for re-election at a meeting of the Members or re-appointment by the Board.

 

22.4 A Director may be removed from office by Ordinary Resolution of the Company, notwithstanding anything in these Articles or in any agreement between the Company and such Director (but without prejudice to any claim for damages under such agreement). A vacancy on the Board created by the removal of a Director under the previous sentence may be filled by Ordinary Resolution or by the affirmative vote of a simple majority of the remaining Directors present and voting at a Board meeting.

 

22.5 The Board may, from time to time, and except as required by applicable law or Designated Stock Exchange Rules, adopt, institute, amend, modify or revoke the corporate governance policies or initiatives of the Company and determine on various corporate governance related matters of the Company as the Board shall determine by resolution of Directors from time to time.

 

22.6 Unless and until otherwise determined by an Ordinary Resolution of the Company, the Directors shall not be less than one in number, and there shall be no maximum number of Directors.

 

22.7 The remuneration of the Directors shall from time to time be determined by the Company by Ordinary Resolution.

 

22.8 The shareholding qualification for Directors may be fixed by the Company by Ordinary Resolution and unless and until so fixed no share qualification shall be required.

 

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22.9 The Directors shall have power at any time and from time to time to appoint any other person as a Director, either to fill a casual vacancy or as an additional Director, subject to the maximum number (if any) imposed by the Company by Ordinary Resolution.

 

23. Alternate Director

 

23.1 Any Director may in writing appoint another Director or another person to be his alternate to act in his place at any meeting of the Directors at which he is unable to be present and may at any time in writing to revoke the appointment of an alternate appointed by him. If the alternate is also a Director of the Company, he should have a separate vote on behalf of the Director he is representing in addition to his own vote. Every such alternate shall be entitled to be given notice of meetings of the Directors and to attend and vote thereat as a Director at any such meeting at which the person appointing him is not personally present and generally at such meeting to have and exercise all the powers, right, duties and authorises of the Director appointing him.

 

23.2 An alternate shall not be deemed to be the agent of the Director appointing him and such alternate shall be deemed for all purposes to be a Director. A Director may at any time in writing revoke the appointment of an alternate appointed by him. The remuneration of such alternate shall be payable out of the remuneration of the Director appointing him and the proportion thereof shall be agreed between them. If a Director shall die or cease to hold the office of Director, the appointment of his alternate shall thereupon cease and terminate.

 

23.3 Any Director may appoint any person, whether or not a Director, to be the proxy of that Director to attend and vote on his behalf, in accordance with instructions given by that Director, or in the absence of such instructions at the discretion of the proxy, at a meeting or meetings of the Directors which that Director is unable to attend personally. The instrument appointing the proxy shall be in writing under the hand of the appointing Director and shall be in any usual or common form or such other form as the Directors may approve, and must be lodged with the chairman of the meeting of the Directors at which such proxy is to be used, or first used, prior to the commencement of the meeting.

 

24. Officers

 

24.1 The Directors of the Company may, by resolution of Directors, appoint officers of the Company at such times as shall be considered necessary or expedient, and such officers may consist of a chief executive officer, a chief financial officer, one or more vice presidents, a secretary and/or such other officers as may from time to time be deemed desirable. The officers shall perform such duties as shall be prescribed at the time of their appointment subject to any modifications in such duties as may be prescribed by the Directors thereafter, but in the absence of any specific allocation of duties it shall be the responsibility of the chief executive officer to manage the day to day affairs of the Company, the vice presidents to act in order of seniority in the absence of the chief executive officer, but otherwise to perform such duties as may be delegated to them by the chief executive officer, the secretary to maintain the registers, minute books and records (other than financial records) of the Company and to ensure compliance with all procedural requirements imposed on the Company by applicable law, and the chief financial officer to be responsible for the financial affairs of the Company.

 

24.2 Any person may hold more than one office and no officer need be a Director or Member of the Company. The officers shall remain in relevant office until removed from the said office by the Directors, whether or not a successor is appointed.

 

24.3 Any officer who is a body corporate may appoint any person its duly authorised representative for the purpose of representing it and of transacting any of the business of the officers.

 

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25. Powers and Duties of Directors

 

25.1 The business of the Company shall be managed by the Directors who may pay all expenses incurred preliminary to and in connection with the setup and registration of the Company, and may exercise all such powers of the Company necessary for managing and for directing and supervising, the business affairs of the Company as are not required by the Companies Law or by these Articles required to be exercised by the Members subject to any delegation of such powers as may be authorised by these Articles and permitted by the Companies Law and to such requirements as may be prescribed by resolution of the Members, but no requirement made by resolution of the Members shall prevail if it was inconsistent with these Articles nor shall such resolution invalidate any prior act of the Directors which would have been valid if such resolution had not been made.

 

25.2 The Directors may from time to time and at any time by power of attorney or otherwise appoint any company, firm or person or body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys of the Company for such purposes and with such powers, authorities and discretion (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Directors may think fit and may also authorise any such attorney to delegate all or any of the powers, authorities and discretions vested in him.

 

25.3 The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property, assets (present and future) and uncalled capital or any part thereof, to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the Company or of any third party.

 

26. Committees of Directors

 

26.1 The Directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit; any committee so formed shall in the exercise of the powers so delegated conform to any regulations that may be imposed on it by the Directors.

 

26.2 The Directors may establish any committees, local boards or agencies for managing any of the businesses and affairs of the Company, and may appoint any persons to be members of such committees, local boards, managers or agents for the Company and may fix their remuneration and may delegate to any committees, local board, manager or agent any of the powers, authorities and discretions vested in the Directors, with the power to sub-delegate, and may authorise the members of any committees, local boards or agencies, or any of them, to fill any vacancies therein and to act notwithstanding vacancies, and any such appointment and delegation may be made upon such terms and subject to such conditions as the Directors may think fit, and the Directors may remove any person so appointed and may annul or vary any such delegation, but no person dealing in good faith and without notice of any such annulment or variation shall be affected thereby.

 

27. Disqualification of Directors

 

The office of Director shall be automatically vacated, if the Director:

 

(a) becomes bankrupt or makes any arrangement or composition with his creditors;

 

(b) is found to be or becomes of unsound mind;

 

(c) resigns his office by notice in writing to the Company;

 

(d) is removed from office by Ordinary Resolution;

 

(e) without special leave of absence from the Board, is absent from meetings of the Board for three consecutive meetings and the Board resolves that his office be vacated;

 

(f) is convicted of an arrestable offence; or

 

(g) dies; or

 

(h) is removed from office pursuant to any other provision of these Articles.

 

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28. Proceedings of Directors

 

28.1 The meetings of the Board of Directors and any committee thereof shall be held at such place or places as the Directors shall decide.

 

28.2 If the Chairman is not present within fifteen minutes after the meeting of the Directors starts, the Directors present may choose one of their members to be chairman for the meeting. If the Directors are unable to choose a chairman, for any reason, then the seniority Director present at the meeting shall preside as the chairman of the meeting.

 

28.3 The Directors may meet together (either within or without the Cayman Islands) for the dispatch of business, adjourn and otherwise regulate their meetings and proceedings as they think fit. Questions arising at any meeting shall be decided by a majority of votes. In case of an equality in votes the chairman shall have a second or casting vote. A Director may at any time summon a meeting of the Directors. If the Company shall have only one Director, the provisions hereinafter contained for meetings of the Directors shall not apply but such sole Director shall have full power to represent and act for the Company in all matters and in lieu of minutes of a meeting shall record written resolutions and sign as a resolution of the Directors. Such note or memorandum shall constitute sufficient evidence of such resolution for all purposes.

 

28.4 Any one or more members of the Board of Directors or any committee thereof may participate in a meeting of such Board of Directors or committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participating by such means shall constitute presence in person at a meeting.

 

28.5 The quorum necessary for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed, the quorum shall be a majority of Directors then in office, including the Chairman; provided, however, a quorum shall nevertheless exist at a meeting at which a quorum would exist but for the fact that the Chairman is voluntarily absent from the meeting and notifies the Board of his decision to be absent from that meeting, before or at the meeting. A Director represented by proxy or by an alternate Director at any meeting shall be deemed to be present for the purposes of determining whether or not a quorum is present.

 

28.6 A Director who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the Company shall declare the nature of his interest at a meeting of the Directors. A general notice given to the Directors by any Director to the effect that he is a member of any specified company or firm and is to be regarded as interested in any contract which may thereafter be made with that company or firm shall be deemed a sufficient declaration of interest in regard to any contract so made. A Director may not vote in respect of any contract or proposed contract or arrangement that he may be interested therein but he may be counted in the quorum at any meeting of the Directors at which any such contract or proposed contract or arrangement shall come before the meeting for consideration.

 

28.7 A Director may hold any other office or place of profit under the Company (other than the office of auditor) in conjunction with his office of Director for such period and on such terms (as to remuneration and otherwise) as the Directors may determine and no Director or intending Director shall be disqualified by his office from contracting with the Company either with regard to his tenure of any such other office or place of profit or as vendor, purchaser or otherwise, nor shall any such contract or arrangement entered into by or on behalf of the Company in which any Director is in any way interested, be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relation thereby established. A Director, notwithstanding his interest, may be counted in the quorum present at any meeting whereat he or any other Director is appointed to hold any such office or place of profit under the Company or whereat the terms of any such appointment are arranged and he may vote on any such appointment or arrangement.

 

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28.8 The Directors shall cause to be entered and kept in books or files provided for the purpose minutes or memoranda of the following (where applicable): -

 

(a) all appointments of officers made by the Directors;

 

(b) the names of the Directors, and any alternate Director who is not also a Director, present at each meeting of the Directors and of any committee of the Directors; and

 

(c) all resolutions and proceedings of all meetings of the Members, all meetings of the Directors and all meetings of committees and, where the Company has only one Member and/or one Director, all written resolutions of the decisions of the sole Member and/or the sole Director;

 

and any such minutes or memoranda of any meeting or decisions of the Directors, or any committee, or of the Company, if purporting to be signed by the chairman of such meeting, or by the chairman of the next succeeding meeting, shall be receivable as prima facie evidence of the matters stated therein.

 

28.9 When the chairman of a meeting of the Directors signs the minutes of such meeting the same shall be deemed to have been duly held notwithstanding that all the Directors have not actually come together or that there may have been a technical defect in the proceedings.

 

28.10 A resolution in writing signed by a majority of the Directors for the time being shall be as valid and effectual for all purposes as a resolution of the Directors passed at a meeting of the Directors duly called and constituted. Such resolution in writing may consist of several documents each signed by one or more of the Directors.

 

28.11 The continuing Directors may act notwithstanding any vacancy in their body but if and so long as their number is reduced below the number fixed by or pursuant to the Articles of the Company as the necessary quorum of Directors, the continuing Directors may act for the purpose of increasing the number, or of summoning a general meeting of the Company, but for no other purpose.

 

28.12 The Directors may appoint a chairman of its committee. If no such chairman is appointed, or if at any meeting the chairman is not present within 15 minutes after the meeting starts, the members present may choose one of their number to be chairman of their meetings.

 

28.13 A committee appointed by the Directors may meet and adjourn as it thinks fit. Questions arising at any meeting shall be determined by a majority of votes of the committee members present and in case of an equality of votes the chairman shall have a second or casting vote.

 

28.14 All acts done bona fide by any meeting of the Directors or of a committee of Directors, or by any person acting as a Director, shall notwithstanding that it was afterwards discovered that there was some defect in the appointment of any such Director or person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director.

 

29. Dividends

 

29.1 Subject to any rights and restrictions for the time being attached to any class or classes of shares, the Directors may from time to time declare dividends (including interim dividends) and other distributions on shares of the Company in issue and authorise payment of the same out of the funds of the Company lawfully available therefor.

 

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29.2 Subject to any rights and restrictions for the time being attached to any class or classes of shares, the Company may by Ordinary Resolution declare final dividends, but no dividend shall exceed the amount recommended by the Directors.

 

29.3 The Directors may, before recommending or declaring any dividend, set aside out of the funds legally available for distribution of the Company such sums as they think proper as a reserve or reserves which shall, at the absolute discretion of the Directors be applicable for meeting contingencies, or for equalising dividends or for any other purpose to which those funds may be properly applied and may pending such application, in the Directors’ absolute discretion, either be employed in the business of the Company or be invested in such investments (other than shares of the Company) as the Directors may from time to time think fit.

 

29.4 No dividend shall be paid otherwise than out of profits or, subject to the restrictions of the Companies Law, the share premium account.

 

29.5 Any dividend may be paid by cheque or warrant sent through the post directed to the registered address of the Member or person entitled thereto (or in case of joint holders, to the registered address of any one of such joint holders whose name stands first on the Register of Members of the Company in respect of the joint holding) or addressed to such person at such address as the holder or joint holders may in writing direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent, but in any event the Company shall not be liable or responsible for any cheque or warrant lost in transmission nor for any dividend, bonus, interest or other monies lost to the Member or person entitled thereto by the forged endorsement of any cheque or warrant. Any payment of the cheque or warrant by the Company’s banker on whom it is drawn shall be a good discharge to the Company.

 

29.6 The Directors when paying dividends to the Members in accordance with the foregoing provisions may make such payment either in cash or in specie.

 

29.7 Subject to the rights of persons, if any, entitled to shares with special rights as to dividend, all dividends shall be declared and paid according to the amounts paid or credited as paid on the shares in respect whereof the dividend is paid, but no amount paid or credited as paid on a share in advance of calls shall be treated for the purposes of this article as paid on the share. All dividends shall be apportioned and paid proportionately to the amounts paid or credited as paid on the shares during any portion or portions of the period in respect of which the dividend is paid but if any share is issued on terms providing that it shall rank for dividend as from a particular date that share shall rank for dividend accordingly.

 

29.8 If several persons are registered as joint holders of any share, any of them may give effectual receipts for any dividend or other moneys payable on or in respect of the share.

 

29.9 No dividend shall bear interest against the Company.

 

30. Accounts and Audit

 

30.1 The Directors shall cause books of account relating to the Company’s affairs to be kept in such manner as may be determined from time to time by the Directors.

 

30.2 The books of account shall be kept at the registered office of the Company, or at such other place or places as the Directors think fit, and shall always be open to the inspection of the Directors.

 

30.3 The Directors shall from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members not being Directors, and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by the Companies Law or authorised by the Directors or by the Company by ordinary resolution.

 

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30.4 The Directors shall from time to time determine whether and to what extent and at what times and places and under what conditions the records, documents and registers of the Company or any of them shall be open to the inspection of Members not being Directors, and no Member (not being a Director) shall have any right of inspecting any records, documents or registers of the Company except as conferred by the Companies Law or authorised by resolution of the Directors.

 

31. Capitalisation of Profits

 

31.1 Subject to the Companies Law, the Directors may, with the authority of an Ordinary Resolution, resolve that it is desirable to capitalise any part of the amount for the time being standing to the credit of any of the Company’s reserve accounts (including a share premium account and capital redemption reserve), or to the credit of the profit and loss account or otherwise available for distribution, and accordingly that such sum be set free for distribution, amongst the Members who would have been entitled thereto if distributed by way of dividend and in the same proportion, on condition that the same be not paid in cash but be applied either in or towards paying up any amounts (if any) for the time being unpaid on any shares held by such Members respectively, or paying up in full unissued shares or debentures of the Company to be allotted and distributed credited as fully paid up to and amongst such Members in the proportion aforesaid or partly in the one way and partly in the other. Provided that a share premium account and a capital redemption reserve fund may, for the purposes of this Article, only be applied in the paying up of unissued shares to be allotted to Members of the Company as fully paid bonus shares.

 

31.2 Whenever such a resolution as aforesaid shall have been passed the Directors shall make all appropriations and applications of the undivided profits resolved to be capitalised thereby, and all allotments and issues of fully paid shares or debentures, if any and generally shall do all acts and things required to give effect thereto, with full power to the Directors to make such provision by the issue of fractional certificates by payment in cash or otherwise as they think fit for the case of shares or debentures becoming distributable in fractions, and also to authorise any person to enter on behalf of all the Members entitled thereto into an agreement with the Company providing for the allotment to them respectively, credited as fully paid up, of any further shares or debentures to which they may be entitled upon such capitalisation, or as the case may require, for the payment up by the Company on their behalf, by the application thereto of their respective proportions of the profits resolved to be capitalised, of the amounts or any part of the amounts remaining unpaid on their existing shares, and any agreement made under such authority shall be effective and binding on all such Members.

 

32. Share Premium Account

 

32.1 The Board of Directors shall in accordance with the Companies Law establish a share premium account and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any share.

 

32.2 There shall be debited to any share premium account on the redemption or purchase of a share the difference between the nominal value of such share and the redemption or purchase price provided always that at the discretion of the Board of Directors such sum may be paid out of the profits of the Company or, if permitted by the Companies Law, out of capital.

 

33. Indemnity

 

Subject to the provisions of the Companies Law and in the absence of fraud or wilful default, the Company may 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 any person who:

 

(a) 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 a Director, managing director, secretary and other officer for the time being of the Company.

 

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34. Notices

 

34.1 Notice shall be in writing and may be given by the Company or by the person entitled to give notice to any Member either personally by electronic mail, by facsimile or by sending it through the post in a prepaid letter or via a recognised courier service, fees prepaid, addressed to the Member at his address as appearing in the Register of Members. Notices posted to addresses outside the Cayman Islands shall be forwarded by prepaid airmail. A notice may be given by the Company to the joint holders of a share by giving the notice to the joint holder first named in the Register of Members in respect of the share.

 

34.2 Any Member present, either personally or by proxy, at any meeting of the Company shall for all purposes be deemed to have received due notice of such meeting and, where requisite, of the purposes for which such meeting was convened.

 

34.3 Any notice, if served by (a) post, shall be deemed to have been served 5 days after the time when the letter containing the same is posted and if served by courier, shall be deemed to have been served 48 hours after the time when the letter containing the same is delivered to the courier or, (b) facsimile, shall be deemed to have been served upon confirmation of receipt or (c) electronic mail, shall be deemed to have been served immediately (i) upon the time of the transmission to the electronic mail address supplied by the Member to the Company or (ii) upon the time of its placement on the Company’s Website, or (d) recognised delivery service, shall be deemed to have been served 48 hours after the time when the letter containing the same is delivered to the recognised delivery service provider.

 

34.4 A notice may be given by the Company to the persons entitled to a share in consequence of the death, bankruptcy or insolvency of a Member by sending it through the post in a prepaid letter, by airmail if appropriate addressed to them by name or by the title of representatives of the deceased or assignee or trustee of the bankrupt or insolvent or by a like description at the address, if any, supplied for the purpose by the persons claiming to be so entitled, or, until such an address has been so supplied, by giving the notice in any manner in which the same might have been given if the death, bankruptcy or insolvency had not occurred.

 

34.5 Notice of every general meeting shall be given in the manner hereinbefore authorised to:

 

(a) all Members who have a right to receive notice and who have supplied the Company with an address for the giving of notices to them and in case of joint holder, the notice shall be sufficient if given to the first named joint holder in the Register of Members; and

 

(b) every person entitled to a share in consequence of the death or bankruptcy of a Member, who but for his death or bankruptcy would be entitled to receive notice of the meeting.

 

No other person shall be entitled to receive notice of general meetings.

 

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35. Seal

 

35.1 The Directors shall provide for the safe custody of the Seal of the Company. The Seal when affixed to any instrument shall be witnessed by a Director or the secretary or officer of the Company or any other person so authorised from time to time by the Directors or of a committee of the Directors authorised by the Directors on that behalf. The Directors may provide for a facsimile of the Seal and approve the signature of any Director or authorised person which may be reproduced by printing or other means on any instrument and it shall have the same force and validity as if the Seal has been affixed to such instrument and the same had been signed as hereinbefore described.

 

35.2 Notwithstanding the foregoing, a director or officer, representative or attorney of the Company shall have the authority to affix the Seal, or a duplicate of the Seal, over his signature alone on any instrument or document required to be authenticated by him under Seal or to be filed with the Registrar of Companies in the Cayman Islands or elsewhere wheresoever.

 

36. Winding Up

 

36.1 If the Company shall be wound up the liquidator may, with the sanction of a Special Resolution of the Company and any other sanction required by the Companies Law, divide amongst the Members in specie or cash the whole or any part of the assets of the Company whether they shall consist of property of the same kind or not and may, for such purpose set such value as he deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the contributors as the liquidator shall think fit, but so that no Member shall be compelled to accept any shares or other securities whereon there is any liability.

 

36.2 Without prejudice to the rights of holders of shares issued upon special terms and conditions, if the Company shall be wound up, and the assets available for distribution among the Members as such shall be insufficient to repay the whole of the paid-up capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the capital paid-up, or which ought to have been paid-up, at the commencement of the winding up on the shares held by them respectively. If on a winding up the assets available for distribution among the Members shall be more than sufficient to repay the whole of the capital paid-up at the commencement of the winding up, the excess shall be distributed among the Members in proportion to the capital paid up at the commencement of the winding up on the shares held by them respectively.

 

37. Amendment of Memorandum and Articles of Association

 

The Company may alter or modify the provisions contained in these Memorandum and Articles of Association as originally drafted or as amended from time to time by a Special Resolution and subject to the Companies Law and the rights attaching to the various classes of shares.

 

38. Registration By Way of Continuation

 

The Company may by Special Resolution resolve to be registered by way of continuation in a jurisdiction outside the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing. In furtherance of a resolution adopted pursuant to this Article. The Directors may cause an application to be made to the Registrar of Companies to deregister the Company in the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing and may cause all such further steps as they consider appropriate to be taken in accordance to the Companies Law to effect the transfer by way of continuation of the Company.

 

 

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Exhibit 10.1

 

技术咨询与服务协议

 

Technical Consultation and Service Agreement

 

本技术咨询与服务协议(以下简称“本协议”)由以下双方于2019年5月8日在中华人民共和国(下称“中国”)南京市签署:

 

This Technical Consultation and Service Agreement (this “Agreement”) is made and entered into by and between the following parties on May 8, 2019 in Nanjing, the People’s Republic of China (“China” or the “PRC”):

 

甲方: 南京嵘科商务咨询服务有限公司
   
Party A: Nanjing Rongke Business Consulting Service Co., Ltd.
   
地址: 南京市高淳区东坝信息新材料产业园872
   
Address: 872 Dongba IT & New Material Industry Park, Gaochun District, Nanjing, Jiangsu Province, China
   
乙方: 江苏旸谷文化发展有限公司
   
Party B: Jiangsu Yanggu Culture Development Ltd.
   
地址: 南京市建邺区嘉陵江东街50号康缘智汇港二期41512
   
Address: Room 1512, Building 4, Kangyuan Zhihui Gang II, No.50 Jianglingjiang East Street, Jianye District, Nanjing, Jiangsu Province China

 

甲方和乙方以下各称为一方,统称为双方

 

Each of Party A and Party B shall be hereinafter referred to as a “Party” respectively, and as the “Parties” collectively.

 

1

Technical Consultation and Service Agreement

 

 

鉴于:

 

Whereas,

 

1. 甲方是一家在中国注册的外商独资企业,拥有提供咨询服务的必要资源;

 

Party A is a wholly-foreign-owned enterprise established in China, and has the necessary resources to provide consulting services;

 

2. 乙方是一家在中国注册的内资公司,经营过程中需要甲方为其提供支持与服务;

 

Party B is a company with exclusively domestic capital registered in China and needs Party A’s support and services during its business operation.

 

基于上述,甲乙双方通过友好协商,特同意如下条款,以兹共同遵守:

 

NOW THEREFORE, through friendly consultation, Party A and Party B hereby agree to enter into and perform this Agreement.

 

  第一条 管理咨询和服务

 

MANAGEMENT CONSULTING AND SERVICES

 

1.1 甲方同意依照本协议的条款和条件向乙方提供人力资源、IT、知识产权等方面的支持和技术服务,乙方同意依照本协议的条款和条件接受甲方提供的支持和服务,甲方提供的支持与服务的具体内容如下:

 

Party A hereby agrees to provide consultation and services to Party B in the area of human resources, IT and intellectual properties, and Party B hereby agrees to accept such management consultation and services in accordance with the terms and conditions under this Agreement. The management consultation and services provided by Party A include:

 

(1) 为乙方员工提供技术培训及支持;

 

be responsible for providing training and technical support to the staff of Party B;

 

(2) 为乙方提供市场营销方面的咨询服务;

 

be responsible for providing consultation services regarding the marketing of Party B;

 

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Technical Consultation and Service Agreement

 

 

(3) 提供和管理、运行与乙方业务相关的咨询服务和协助;

 

be responsible for providing general advice and assistance relating to the management and operation of Party B’s business;

 

(4) 提供乙方业务所需要的其他相关的支持与服务。

 

be responsible for providing other consultation and services which are necessary for Party B’s businesses.

 

1.2 乙方应当为甲方完成前述工作提供适当的配合,包括但不限于负责提供相关数据、提供所需的技术要求、说明等。

 

Party B shall provide appropriate assistance to Party A for its work, including but not limited to providing the relevant data, engineering requirement and technical directions.

 

1.3 本协议有效期限为二十(20)年。双方同意,在本协议期满前,甲方有权以书面通知的方式延长本协议的期限,乙方必须无条件地同意该延期。若乙方经营期限需延长时,除非甲方事先书面通知另行指示,乙方应尽最大努力更新营业执照并延长其经营期限。

 

The term of this Agreement is twenty (20) years. The Parties agree that, this Agreement can be extended only if Party A gives its written consent of the extension of this Agreement before the expiration of this Agreement and Party B shall agree with this extension without reserve. If Party B’s operation term is required to extended, Party B shall use its best efforts to renew its business license and extend its operation term until and unless otherwise instructed in Party A’s prior written notice.

 

1.4 甲方是向乙方提供本协议项下咨询与服务的独家提供者;除非甲方事先书面同意,乙方不得接受任何第三方提供的与甲方服务相同或相类似的其他服务,并不得与任何第三方就本协议所述事项建立任何类似的合作关系。双方同意,甲方可以指定其他方为乙方提供本协议约定的服务和/或支持。

 

Party A is the exclusive consultation and services provider of Party B; Party B shall not utilize third party to provide services which are same as or similar with Party A’s services and shall not establish similar corporation relationship with any third party regarding the matters contemplated by this Agreement without the prior written consent of Party A. Party A may appoint other parties to provide Party B with the consultations and/or services under this Agreement.

 

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Technical Consultation and Service Agreement

 

 

  第二条 服务费

 

SERVICES FEES

 

甲乙双方同意,作为本协议第1.1条项下甲方向乙方提供的技术支持和技术服务的对价,乙方应向甲方支付服务费,服务费的数额及支付方式详见本协议附件。该附件可根据双方商议并根据实施情况进行修改。

 

The Parties agree that, Party B shall pay relevant services fees to Party A which shall be determined according to the Appendix of this Agreement, as the consideration for the technical support and services provided by Party A to Party B as stipulated in Section 1.1. This Appendix can be amended by the Parties in considering the circumstances.

 

  第三条 知识产权和保密

 

INTELLECTUAL PROPERTY AND CONFIDENTIALITY

 

3.1 除非双方另行书面约定,甲方对履行本协议而产生的任何知识产权包括但不限于著作权、专利权、技术秘密、商业机密及其他,无论是由甲方还是由乙方开发的,均享有独占的和排他的权利和利益。乙方须签署所有适当的文件,采取所有适当的行动,递交所有的文件和/或申请,提供所有适当的协助,以及做出所有其他依据甲方的自行决定认为是必要的行为,以将任何对该等知识产权的所有权、权利和权益赋予甲方,和/或完善对甲方此等知识产权权利的保护。双方同意,不论本协议是否变更、解除或终止,本条款将持续有效。

 

Unless otherwise stipulated in writing by the Parties, Party A shall be the sole and exclusive owner of all rights and interests to any and all intellectual property rights arising from the performance of this Agreement, including, but not limited to, any copyrights, patent, know-how and otherwise, whether developed by Party A or Party B. Party B shall execute all appropriate documents, take all appropriate actions, submit all filings and/or applications, render all appropriate assistance and otherwise conduct whatever is necessary as deemed by Party A in its sole discretion for the purposes of vesting any ownership, right or interest of any such intellectual property rights in Party A, and/or perfecting the protections for any such intellectual property rights in Party A. The Parties agree that this Section shall survive changes to, and rescission or termination of, this Agreement.

 

3.2 为本协议之目的,秘密信息一词包括但不限于下列信息:本协议一方提供给另一方的技术的开发、设计、研究、生产、制造、维修有关的技术信息、资料、方案、图纸、数据、参数、标准、软件、电脑程序、网络设计资料;双方为本协议目的而签署的任何合同、协议、备忘录、附件、草案或记录(包括本协议);以及本协议一方为本协议之目的而给予对方的在提供时说明应予保密的任何信息。一旦本协议终止,乙方应将载有保密信息的任何文件、资料或软件,按甲方要求归还甲方,或予以自行销毁,并从任何有关记忆装置中删除任何保密信息,并且不继续使用这些保密信息。

 

For the purpose of this Agreement, Confidential Information includes, but not limited to, (i) technical information, materials, program, drawing, data, parameter, standard, software, computer program, web design in connection with the development, design, research, produce and maintenance of technology disclosed by one Party to the other Party; (ii) any contracts, agreement, memo, annexes, draft or record (including this Agreement) entered into by the Parties for the purpose of this Agreement; and (iii) any information designated to be proprietary or confidential when it is disclosed by one Party to the other Party. Upon termination or expiration of this Agreement, Party B shall, return all and any documents, materials or software contained any of such Confidential Information to Party A or destroy it, delete all of such Confidential Information from memory devices, and cease to use them.

 

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Technical Consultation and Service Agreement

 

 

3.3 除非事先得到本协议另一方的书面同意,一方不得将秘密信息以任何方式泄露给任何第三方。

 

Any Party shall not disclose any Confidential Information to any third party in any way without the other Party’s prior written consent.

 

3.4 协议双方仅可向必须知晓该信息的职员、代理人或顾问披露保密信息,该职员、代理人应至少按照本协议第三条相同的限制程度接受保密义务的约束。

 

The Parties may disclose Confidential Information solely to its employees, agents or consultant who must know such information, subject to such employees, agents or consultant being bound by confidentiality obligations at least as restrictive as this Section 3.

 

3.5 尽管有上述规定,保密信息不应包括以下信息:

 

Notwithstanding the foregoing, Confidential Information shall not be deemed to include the following information:

 

(1) 公众人士知悉或将会知悉的任何信息(惟并非由接受保密信息之一方擅自向公众披露);或

 

is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); or

 

(2) 根据适用法律法规、股票交易规则、或政府部门或法院的命令而所需披露之任何信息;在此等情况下,接受保密信息的一方应及时通知另一方,并应采取合理及合法的措施减少披露的范围。

 

is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities, in which case the receiving Party will promptly notify the disclosing Party, and will take reasonable and lawful steps to minimize the extent of the disclosure.

 

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Technical Consultation and Service Agreement

 

 

3.6 协议一方违反本条款的规定,应当赔偿对方的损失。

 

Any Party breaching confidentiality obligations under this Section shall indemnity all losses of the other Party.

 

  第四条 陈述与保证

 

REPRESENTATIONS AND WARRANTIES

 

4.1 甲方陈述和保证如下:

 

Party A hereby represents and warrants as follows:

 

(1) 甲方是按照中国法律合法注册并有效存续的外商独资企业。

 

Party A is a wholly owned foreign enterprise legally registered and validly existing in accordance with the laws of China.

 

(2) 甲方已采取所有必要的公司行为,获得必要的授权,并取得第三方和政府部门的同意及批准(若需)以签署和履行本协议;甲方对本协议的签署和履行并不违反法律法规的明确规定。

 

Party A has taken all necessary corporate actions, obtained all necessary authorization and the consent and approval from third parties and government agencies (if any) for the execution and performance of this Agreement. Party A’s execution and performance of this Agreement do not violate any explicit requirements under any law or regulation binding on Party A.

 

(3) 本协议构成对甲方合法、有效、有约束力并依本协议之条款对其强制执行的义务。

 

This Agreement constitutes Party A's legal, valid and binding obligations, enforceable in accordance with its terms.

 

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Technical Consultation and Service Agreement

 

 

4.2 乙方陈述和保证如下:

 

Party B hereby represents and warrants as follows:

 

(1) 乙方是按照中国法律合法注册且有效存续的公司,乙方获得从事主营业务所需的政府许可、牌照,具有独立的法人资格;具有完全、独立的法律地位和法律能力签署、交付并履行本协议,可以独立地作为一方诉讼主体。

 

Party B is a company legally registered and validly existing in accordance with the laws of China and has obtained the relevant permit and license for engaging in its business in a timely manner. It has independent legal person status, and has full and independent civil and legal capacity to execute, deliver and perform this Agreement. It can sue and be sued as a separate entity;

 

(2) 乙方已采取所有必要的公司行为,获得必要的授权,并取得第三方和政府部门的同意及批准(若需)以签署和履行本协议;乙方对本协议的签署和履行并不违反法律法规的明确规定。

 

Party B has taken all necessary corporate actions, obtained all necessary authorization and the consent and approval from third parties and government agencies (if any) for the execution and performance of this Agreement. Party B’s execution and performance of this Agreement do not violate any explicit requirements under any law or regulation binding on Party B.

 

(3) 本协议构成对乙方合法、有效、有约束力并依本协议之条款对其强制执行的义务。

 

This Agreement constitutes Party B's legal, valid and binding obligations, enforceable in accordance with its terms.

 

  第五条 违约责任

 

LIABILITY FOR BREACH OF AGREEMENT

 

5.1 双方同意并确认,如任何一方(以下称“违约方”)违反本协议项下所作的任何一项约定,或未履行本协议项下的任何一项义务,即构成本协议项下的违约(以下称“违约”),守约方有权要求违约方在合理期限内补正或采取补救措施。如违约方在合理期限内或在守约方书面通知违约方并提出补正要求后三十(30)天内仍未补正或采取补救措施的,则守约方有权自行决定(1)终止本协议,并要求违约方给予全部的损害赔偿;或者(2)要求强制履行违约方在本协议项下的义务,并要求违约方给予守约方因此而遭受的全部损害赔偿。

 

The Parties agree and confirm that, if either Party (the “Defaulting Party”) is in breach of any provisions herein or fails to perform its obligations hereunder, such breach or failure shall constitute a default under this Agreement (the “Default”), which shall entitle the non-defaulting Party to request the Defaulting Party to rectify or remedy such Default with a reasonable period of time. If the Defaulting Party fails to rectify or remedy such Default within the reasonable period of time or within thirty (30) days of non-defaulting Party’s written notice requesting for such rectification or remedy, then the non-defaulting Party shall be entitled to elect any one of the following remedial actions: (a) to terminate this Agreement and request the Defaulting Party to fully compensate its losses and damages; (b) to request the specific performance by the Defaulting Party of its obligations hereunder and request the Defaulting Party to fully compensate non-defaulting Party’s losses and damages.

 

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Technical Consultation and Service Agreement

 

 

5.2 本协议当事人对违约方违约行为的弃权仅以书面形式作出方为有效。当事人未行使或迟延行使其在本协议项下的任何权利或救济不构成该当事人的弃权;部分行使权利或救济亦不应阻碍其行使其他权利或救济。

 

No waiver of rights in respect of any default hereunder shall be valid unless it was made in writing. Any failure to exercise or delay in exercising any rights or remedy by any Party under this Agreement shall not be deemed as a waiver of such Party. Any partial exercise of any right or remedy shall not affect the exercise of any other rights and remedies.

 

5.3 虽然5.1条规定,双方同意并确认,乙方在任何情况下,均不得以任何理由要求终止本合同,除非法律另有规定或甲方事先书面同意。

 

Notwithstanding Section 5.1 above, the Parties agree and confirm that in no circumstance shall Party B early terminate this Agreement unless the applicable law provides otherwise or it has obtained the prior written consent of Party A.

 

5.4 本条规定的效力不受本协议终止或解除的影响。

 

The validity of this Section shall not be affect by the suspension or termination of this Agreement.

 

  第六条 不可抗力

 

FORCE MAJEURE

 

6.1 本协议项下不可抗力系指:地震、战争等无法预见、无法控制和无法避免的情况。

 

In this Agreement, “Force Majeure” will mean war, earthquake and other events which are unforeseen, inevitable and beyond the control of the Party.

 

6.2 本协议当事人因受不可抗力的影响而不能继续履行本协议,应免于承担相应的责任,但应在不可抗力的影响消除后继续履行。

 

If the Force Majeure causes any one party to the Agreement the impossibility to further perform this Agreement, the Parties agree that the suffering party will waive any liability to the other party for any loss that result from any such Force Majeure, provided that the suffering party shall continue to perform this Agreement after the Force Majeure.

 

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Technical Consultation and Service Agreement

 

 

  第七条 协议变更与终止

 

AMENDMENT AND TERMINATION

 

7.1 任何有关本协议的变更需经双方书面签署。否则,任何有关本协议的变更不得约束协议双方。

 

Any amendment of this Agreement shall come into force only after a written agreement is signed by both Parties.

 

7.2 本协议有效期内,除非甲方对乙方有重大过失或存在欺诈行为,乙方不得提前终止本协议。尽管如此,甲方可在任何时候通过提前三十(30)天向乙方发出书面通知的方式终止本协议。

 

During the term of this Agreement, unless Party A commits gross negligence, or a fraudulent act, against Party B, Party B shall not terminate this Agreement prior to its expiration date. Nevertheless, Party A shall have the right to terminate this Agreement upon giving thirty (30) days’ prior written notice to Party B at any time.

 

7.3 在本协议期限内,若甲乙任何一方进入清算程序(无论是否自愿),或被政府主管部门禁止营业,协议另一方有权要求解除本协议。解除通知自发出之日起生效。

 

During the term of this Agreement, if any Party is going into liquidation (either voluntary or compulsory), or is prohibited to conduct business by the governmental authority, the other Party shall be entitled to terminate this Agreement. The termination notice shall come into force upon the notice is sent.

 

7.4 协议的变更及解除不影响当事人要求损害赔偿的权利。因变更或解除协议造成协议一方遭受损失的,除依法可以免除责任的以外,应由责任方负责赔偿。

 

The amendment and termination of this Agreement shall not affect the exercise of any other remedies under this Agreement. Except when it may be exempted from liability according to law, the Party that is held responsible shall compensate the other Party for all losses and damages thus caused by such amendment or termination.

 

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Technical Consultation and Service Agreement

 

 

  第八条 法律适用和争议解决

 

GOVERNING LAW AND DISPUTE RESOLUTION

 

8.1 本协议的订立、效力、解释、履行、修改和终止以及争议的解决均适用中国法律。

 

The execution, effectiveness, interpretation, performance, amendment, termination and dispute resolution shall be governed by the law of the People’s Republic of China.

 

8.2 一切因执行本协议或与本协议有关的争执,应由双方通过友好方式协商解决。如经协商不能得到解决时,应提交位于南京的中国国际经济贸易仲裁委员会江苏仲裁中心,根据提交仲裁时中国国际经济贸易仲裁委员会江苏仲裁中心的仲裁规则进行仲裁,仲裁地点在南京,仲裁语言为中文。仲裁裁决是终局性的,对各方均由约束力。

 

In the event of any dispute with respect to this Agreement, the Parties shall first resolve the dispute through friendly negotiations. In the event the Parties fail to reach an agreement on the dispute, either Party may submit the relevant dispute to the Jiangsu Branch of China International Economic and Trade Arbitration Commission for arbitration, in accordance with its Arbitration Rules. The arbitration shall be conducted in Nanjing, and the language used in arbitration shall be Chinese. The arbitration award shall be final and binding on all Parties.

 

8.3 因解释和履行本协议而发生任何争议或任何争议正在进行仲裁时,除争议的事项外,本协议双方仍应继续行使各自在本协议项下的其他权利并履行各自在本协议项下的其他义务。

 

Upon the occurrence of any disputes arising from the construction and performance of this Agreement or during the pending arbitration of any dispute, except for the matters under dispute, the Parties to this Agreement shall continue to exercise their respective rights under this Agreement and perform their respective obligations under this Agreement.

 

  第九条 通知

 

NOTICES

 

9.1 本协议项下要求或发出的所有通知和其他通信应通过专人递送、挂号邮寄、邮资预付或商业快递服务的方式发到该方下列地址。每一通知还应再以电子邮件送达。该等通知视为有效送达的日期按如下方式确定:

 

All notices and other communications required or permitted to be given pursuant to this Agreement shall be delivered personally or sent by registered mail, postage prepaid, by a commercial courier service or by facsimile transmission to the address of such Party set forth below. A confirmation copy of each notice shall also be sent by email. The dates on which notices shall be deemed to have been effectively given shall be determined as follows:

 

通知如果是以专人递送、快递服务或挂号邮寄、邮资预付发出的,则以于设定为通知的地址在签收或拒收之日为有效送达日。

 

Notices given by personal delivery, by courier service or by registered mail, postage prepaid, shall be deemed effectively given on the date of acceptance or refusal at the address specified for notices.

 

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Technical Consultation and Service Agreement

 

 

9.2 为通知的目的,双方地址如下:

 

For the purpose of notices, the addresses of the Parties are as follows:

 

  甲方: 南京嵘科商务咨询服务有限公司
     
  Party A: Nanjing Rongke Business Consulting Service Co., Ltd.
     
  地址: 南京市高淳区东坝信息新材料产业园872
     
  Address: 872 Dongba IT & New Material Industry Park, Gaochun District, Nanjing, Jiangsu Province, China
     
  收件人Attn 邵毅 Shao Yi
     
  乙方: 江苏旸谷文化发展有限公司
     
  Party B Jiangsu Yanggu Culture Development Ltd.
     
  地址: 南京市建邺区嘉陵江东街50号康缘智汇港二期41512
     
  Address: Room 1512, Building 4, Kangyuan Zhihui Gang II, No.50 Jianglingjiang East Street, Jianye District, Nanjing, Jiangsu Province China
     
  收件人Attn 邵毅 Shao Yi

 

9.3 任何一方变更接收通知的地址或联系人的,应按本条规定给另一方发出通知。

 

If any Party change its address for notices or its contact person, a notice shall be delivered to the other Party in accordance with the terms hereof.

 

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  第十条 协议的转让

 

ASSIGNMENT

 

10.1 乙方不得将其在本协议项下的权利与义务转让给第三方,除非事先征得甲方的书面同意。

 

Without Party A's prior written consent, Party B shall not assign its rights and obligations under this Agreement to any third party.

 

10.2 乙方在此同意,甲方可以在其需要时向其他第三方转让其在本协议项下的权利和义务,并在该等转让发生时甲方仅需向乙方发出书面通知,并且无需再就该等转让征得乙方的同意。

 

Party B agrees that Party A may assign its obligations and rights under this Agreement to any third party upon a prior written notice to Party B but without the consent of Party B.

 

  第十一条 协议的分割性

 

SEVERABILITY

 

如果本协议有任何一条或多条规定根据任何法律或法规在任何方面被裁定为无效、不合法或不可执行,本协议其余规定的有效性、合法性或可执行性不应因此在任何方面受到影响或损害。双方应通过诚意磋商,争取以法律许可以及双方期望的最大限度内有效的规定取代那些无效、不合法或不可执行的规定,而该等有效的规定所产生的经济效果应尽可能与那些无效、不合法或不能强制执行的规定所产生的经济效果相似。

 

In the event that one or several of the provisions of this Agreement are found to be invalid, illegal or unenforceable in any aspect in accordance with any laws or regulations, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected or compromised in any aspect. The Parties shall strive in good faith to replace such invalid, illegal or unenforceable provisions with effective provisions that accomplish to the greatest extent permitted by law and the intentions of the Parties, and the economic effect of such effective provisions shall be as close as possible to the economic effect of those invalid, illegal or unenforceable provisions.

 

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  第十二条 协议的修改、补充

 

AMENDMENTS AND SUPPLEMENTS

 

双方可以书面协议方式对本协议作出修改和补充。经过双方签署的有关本协议的修改协议和补充协议是本协议组成部分,具有与本协议同等的法律效力。

 

Any amendments and supplements to this Agreement shall be in writing. The amendment agreements and supplementary agreements that have been signed by the Parties and that relate to this Agreement shall be an integral part of this Agreement and shall have the same legal validity as this Agreement.

 

  第十三条 附则

 

MISCELLANEOUS

 

13.1 本协议自双方签署及盖章之日起生效。

 

This Agreement shall become effective upon and from the date on which it is signed by the authorized representative and seal of each Party.

 

13.2 本协议保密条款、争议解决条款、违约责任条款在本协议解除或中止之后仍然有效。

 

The clauses in connection with confidentiality obligations, disputes resolution and default responsibilities shall survive rescission or termination of this Agreement.

 

13.3 本协议采用中文、英文两种文本,中文文本与英文文本具有同等法律效力,中文文本与英文文本不一致的,以中文文本为准。本协议正本一式贰(2)份,双方各持壹(1)份,各份具有相同之效力。

 

This Agreement shall be signed in Chinese and English language bearing the same legal effect. In the event of any inconsistency between the Chinese and English language, the Chinese version of this Agreement shall prevail. This Agreement shall have two (2) counterparts, with each party holding one (1) original. All counterparts shall be given the same legal effect.

 

[本页其余部分刻意留为空白]

 

[The Remainder of this page is intentionally left blank]

 

13

Technical Consultation and Service Agreement

 

 

[签字页]

 

[Signature Page]

 

有鉴于此,双方已使得其授权的代表于文首所述日期签署了本技术咨询与服务协议并即生效,以昭信守。

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Technical Consultation and Service Agreement as of the date first above written.

 

甲方: 南京嵘科商务咨询服务有限公司 (盖章)  
     
Party A: Nanjing Rongke Business Consulting Service Co., Ltd. (seal)  
     
姓名: 邵毅  
     
Name: Shao Yi  
     
职务: 授权代表人  
     
Title: Authorized Representative  
     
签字:    
     
By: /s/ Shao Yi  

 

Technical Consultation and Service Agreement

 

 

[签字页]

 

[Signature Page]

 

有鉴于此,双方已使得其授权的代表于文首所述日期签署了本技术咨询与服务协议并即生效,以昭信守。

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Technical Consultation and Service Agreement as of the date first above written.

 

乙方: 江苏旸谷文化发展有限公司 (盖章)  
     
Party B: Jiangsu Yanggu Culture Development Ltd. (seal)  
     
姓名: 邵毅  
     
Name: Shao Yi  
     
职务: 授权代表人  
     
Title: Authorized Representative  
     
签字:    
     
By: /s/ Shao Yi  

 

Technical Consultation and Service Agreement

 

附件 关于技术服务费支付标准、方式的约定

 

Exhibit Provisions on the payment standard and method of technology service fee

 

1. 甲、乙双方同意,作为本协议第1.1条项下甲方向乙方提供的技术支持和技术服务的对价,乙方应按照下述规定向甲方支付服务费:

 

Both Parties agreed that Party B should pay service fee relating to Section 1.1 to Party A based on the following terms:

 

乙方应每年向甲方支付相当于乙方根据美国一般公认会计准则确定的税后净利润的百分之一百(100%),作为本协议项下技术支持与技术服务的基本年费,该等基本年费按季度分四期平均支付,乙方应分别在每个季度收到甲方发票开始之日起的十五(15)个工作日内支付至甲方指定之银行帐户。

 

Party B should pay 100% of after-tax net income of Party B accepted by US GAAP to Party A as the annual fee (the “Annual Fee”) of technology support and service herein. The Annual fee should be paid to the designed bank account of Party A within fifteen (15) working days after the receiving invoice from Party A.

 

2. 如果甲方认为本附件第1条约定的费用数额不能适应客观情况变化而需要做出调整,乙方应在甲方提出调整费用的书面要求之日后七(7)个工作日内积极并诚信地与甲方进行协商,以确定新的收费标准或机制。

 

Party B should negotiate with Party B within seven (7) working days after receiving the written notice regarding the adjustment of the Annual Fee from Party A.

 

3. 如果在乙方有义务向甲方支付服务费时,根据美国一般公认会计准则确定乙方处于亏损状态,甲方需要合并乙方的亏损,并有义务向乙方支付亏损额,以弥补其亏损。

 

If Party B is in a status of loss accepted by the US GAAP, Party A is obliged to absorb all the loss of Party B and to pay the amount of loss to Party B.

 

 

Technical Consultation and Service Agreement

 

Exhibit 10.2

 

股权质押合同

 

Equity Pledge Agreement

 

本股权质押合同(下称本合同)由下列各方于201958日在中华人民共和国(下称中国)南京市签订:

 

This Equity Pledge Agreement (this “Agreement”) has been executed by and among the following parties on May 8, 2019 in Nanjing, the People’s Republic of China (“China” or the “PRC”):

 

甲方: 南京嵘科商务咨询服务有限公司 (下称质权人)
   
Party A: Nanjing Rongke Business Consulting Service Co., Ltd. (hereinafter “Pledgee”)
   
地址: 南京市高淳区东坝信息新材料产业园872
   
Address: 872 Dongba IT & New Material Industry Park, Gaochun District, Nanjing, Jiangsu Province, China
   
乙方: 签字股东(下称出质人)
   
Party B:  The undersigned shareholders (hereinafter each refers to “Pledgor”, collectively, “Pledgors”)
   
地址: 见签字页所示地址
   
Address: See the address in the signature pages
   
丙方: 江苏旸谷文化发展有限公司
   
Party C: Jiangsu Yanggu Culture Development Ltd.
   
地址: 南京市建邺区嘉陵江东街50号康缘智汇港二期41512
   
Address: Room 1512, Building 4, Kangyuan Zhihui Gang II, No.50 Jianglingjiang East Street, Jianye District, Nanjing, Jiangsu Province China

 

在本合同中, 质权人、出质人和丙方以下各称一方, 合称各方

 

In this Agreement, each of Pledgee, Pledgor and Party C shall be referred to as a “Party” respectively, and they shall be collectively referred to as the “Parties”.

 

1
Equity Pledge Agreement

 

 

鉴于:

 

Whereas:

 

1. 出质人是十九位拥有中华人民共和国(下称“中国”)国籍的自然人, 合计拥有丙方100%的股权。丙方是一家在中国南京注册成立的有限责任公司。丙方在此确认出质人和质权人在本合同下的权利和义务并提供必要的协助以登记该质权;

 

Pledgors are 19 natural persons with the nationality of the People’s Republic of China (hereinafter referred to as “China”), and collectively hold 100% of the equity interest in Party C in record. Party C is a limited liability company registered in Nanjing, China. Party C acknowledges the respective rights and obligations of Pledgor and Pledgee under this Agreement, and intends to provide any necessary assistance in registering the Pledge;

 

2. 质权人是一家在中国注册的外商独资企业。质权人与出质人、出质人所拥有的丙方签订了技术咨询与服务协议等一系列旨在形成质权人控制丙方的协议(控制协议);

 

Pledgee is a wholly foreign-owned enterprise registered in China. Pledgee, Pledgor and Party C owned by Pledgor have executed an Technical Consultation and Service Agreement and other control agreements (the “Control Agreements”);

 

3. 为了保证出质人及丙方履行控制协议项下的义务, 按照约定向质权人支付咨询和服务费等到期款项, 出质人以其在丙方中拥有的全部股权向质权人就控制协议项下丙方的付款义务做出质押担保。

 

To ensure that Pledgor and Party C fully perform their obligations under the Control Agreements, and pay the consulting and service fees thereunder to the Pledgee when the sum becomes due, Pledgor hereby pledges to the Pledgee all of the equity interest he holds in Party C as security for payment of the consulting and service fees by Party C under the Control Agreements.

 

为了履行控制协议的条款, 各方商定按照以下条款签订本合同。

 

To perform the provisions of the Control Agreements, the Parties have mutually agreed to execute this Agreement upon the following terms.

 

2
Equity Pledge Agreement

 

 

第一条 定义

 

DEFINITIONS

 

除非本合同另有规定, 下列词语含义为:

 

Unless otherwise provided herein, the terms below shall have the following meanings:

 

1.1 质权:指出质人根据本合同第2条给予质权人的担保物权, 即指质权人所享有的, 以出质人质押给质权人的股权折价或拍卖、变卖该股权的价款优先受偿的权利。

 

Pledge: shall refer to the security interest granted by Pledgor to Pledgee pursuant to Section 2 of this Agreement, i.e., the right of Pledgee to be compensated on a preferential basis with the conversion, auction or sales price of the Equity Interest.

 

1.2 股权:指出质人现在和将来合法持有的其在丙方的全部股权权益。

 

Equity Interest: shall refer to all of the equity interest lawfully now held and hereafter acquired by Pledgor in Party C.

 

1.3 质押期限:指本合同第3条规定的期间。

 

Term of Pledge: shall refer to the term set forth in Section 3 of this Agreement.

 

1.4 控制协议:指出质人、丙方与质权人于201958日签订的技术咨询与服务协议等一系列控制性协议。

 

Control Agreements: shall refer to Technical Consultation and Service Agreements and other relevant control agreements executed by and among Pledgor, Party C and Pledgee on May 8, 2019.

 

1.5 违约事件:指本合同第7条所列任何情况。

 

Event of Default: shall refer to any of the circumstances set forth in Section 7 of this Agreement.

 

1.6 违约通知:指质权人根据本合同发出的宣布违约事件的通知。

 

Notice of Default: shall refer to the notice issued by Pledgee in accordance with this Agreement declaring an Event of Default.

 

第二条 质权

 

THE PLEDGE

 

出质人、丙方为完全履行控制协议, 以及按时和全额支付控制协议项下质权人应得的任何或全部的款项, 包括但不限于控制协议中规定的咨询和服务费的担保(无论该等费用的到期应付是由于到期日的到来、提前收款的要求或其它原因)之目的, 出质人特此将其现有或将拥有的丙方的全部股权权益质押给质权人。

 

As collateral security for the performance of the Control Agreements and the timely and complete payment when due (whether at stated maturity, by acceleration or otherwise) of any or all of the payments due by Party C and/or Pledgor, including without limitation the consulting and services fees payable to the Pledgee under the Control Agreements, Pledgor hereby pledges to Pledgee a first security interest in all of Pledgor’s right, title and interest, whether now owned or hereafter acquired by Pledgor, in the Equity Interest of Party C.

 

3
Equity Pledge Agreement

 

 

第三条 质押期限

 

TERM OF PLEDGE

 

3.1 本质权自本合同项下的股权出质在相应的市场监督管理机关登记之日起生效, 质权有效期持续到出质人不再担任丙方的股东或丙方履行所有控制协议项下义务为止。出质人应当将质押在公司股东名册上载明。

 

The Pledge shall become effective on such date when the pledge of the Equity Interest contemplated herein has been registered with relevant administration for market regulation (the “AMR”). The Pledge shall be continuously valid until the Pledgor is no longer a shareholder of Party C or the satisfaction of all its obligations by the Party C under the Control Agreements. The Pledgors shall be responsible for recording of this Agreement in the Company’s Register of Shareholders.

 

3.2 质押期限内, 如丙方未按控制协议交付咨询服务费等费用, 质权人有权但无义务按本合同的规定处分质权。

 

During the Term of Pledge, in the event Party C fails to pay the exclusive consulting or service fees in accordance with the Control Agreements, Pledgee shall have the right, but not the obligation, to dispose of the Pledge in accordance with the provisions of this Agreement.

 

第四条 质权凭证的保管

 

CUSTODY OF RECORDS FOR EQUITY INTEREST SUBJECT TO PLEDGE

 

4.1 在本合同规定的质押期限内, 出质人应将记载质权的股东名册交付质权人保管。出质人应在本合同签订之日起一周内将上述股东名册交付给质权人。质权人将在本合同规定的全部质押期间一直保管这些项目。

 

During the Term of Pledge set forth in this Agreement, Pledgor shall deliver to Pledgee’s custody the shareholders’ register containing the Pledge within one week from the execution of this Agreement. Pledgee shall have custody of such items during the entire Term of Pledge set forth in this Agreement.

 

4.2 在质押期限内, 质权人有权收取股权所产生的红利。

 

Pledgee shall have the right to collect dividends generated by the Equity Interest during the Term of Pledge.

 

4
Equity Pledge Agreement

 

 

第五条 出质人的声明和保证

 

REPRESENTATIONS AND WARRANTIES OF PLEDGOR

 

5.1 出质人是股权登记所有人。

 

Pledgor is the owner of the Equity Interest in record of register of shareholder.

 

5.2 质权人有权以本合同规定的方式处分并转让股权。

 

Pledgee shall have the right to dispose of and transfer the Equity Interest in accordance with the provisions set forth in this Agreement.

 

5.3 除本质权之外, 出质人未在股权上设置任何其他质押权利或其他担保权益。

 

Except for the Pledge, Pledgor has not placed any security interest or other encumbrance on the Equity Interest.

 

第六条 出质人的承诺和确认

 

COVENANTS AND FURTHER AGREEMENTS OF PLEDGOR

 

6.1 在本合同存续期间, 出质人向质权人承诺, 出质人将:

 

Pledgor hereby covenants to the Pledgee, that during the term of this Agreement, Pledgor shall:

 

(1) 除履行由出质人与质权人、丙方于本合同签署日签订的《股权处分合同》(股权处分合同)外, 未经质权人事先书面同意, 不得转让股权, 不得在股权上设立或允许存在任何担保或其他债务负担;

 

not transfer the Equity Interest, place or permit the existence of any security interest or other encumbrance on the Equity Interest, without the prior written consent of Pledgee, except for the performance of the Equity Option Agreement (the “Equity Option Agreement”) executed by Pledgor, the Pledgee and Party C on the execution date of this Agreement;

 

5
Equity Pledge Agreement

 

 

(2) 遵守并执行所有有关权利质押的法律、法规的规定, 在收到有关主管机关就质权发出或制定的通知、指令或建议时, 于五(5)个工作日内向质权人出示上述通知、指令或建议, 同时遵守上述通知、指令或建议, 或按照质权人的合理要求或经质权人同意就上述事宜提出反对意见和陈述;

 

comply with the provisions of all laws and regulations applicable to the pledge of rights, and within five (5) working days of receipt of any notice, order or recommendation issued or prepared by relevant competent authorities regarding the Pledge, shall present the aforementioned notice, order or recommendation to Pledgee, and shall comply with the aforementioned notice, order or recommendation or submit objections and representations with respect to the aforementioned matters upon Pledgee’s reasonable request or upon consent of Pledgee;

 

(3) 将任何可能导致对出质人股权或其任何部分的权利产生影响的事件或收到的通知, 以及可能改变出质人在本合同中的任何保证、义务或对出质人履行其在本合同中义务可能产生影响的任何事件或收到的通知及时通知质权人。

 

promptly notify Pledgee of any event or notice received by Pledgor that may have an impact on Pledgee’s rights to the Equity Interest or any portion thereof, as well as any event or notice received by Pledgor that may have an impact on any guarantees and other obligations of Pledgor arising out of this Agreement.

 

6.2 出质人同意, 质权人按本合同条款取得的对质权享有的权利, 不应受到出质人或出质人的继承人或出质人之委托人或任何其他人通过法律程序的中断或妨害。

 

Pledgor agrees that the rights acquired by Pledgee in accordance with this Agreement with respect to the Pledge shall not be interrupted or harmed by Pledgor or any heirs or representatives of Pledgor or any other persons through any legal proceedings.

 

6.3 出质人向质权人保证, 为保护或完善本合同对偿付控制协议项下咨询服务费等费用的担保, 出质人将诚实签署、并促使其他与质权有利害关系的当事人签署质权人所要求的所有的权利证书、契约和/或履行并促使其他有利害关系的当事人履行质权人所要求的行为, 并为本合同赋予质权人之权利、授权的行使提供便利, 与质权人或其指定的人(自然人/法人)签署所有的有关股权所有权的文件, 并在合理期间内向质权人提供其认为需要的所有的有关质权的通知、命令及决定。

 

To protect or perfect the security interest granted by this Agreement for payment of the consulting and service fees under the Control Agreements, Pledgor hereby undertakes to execute in good faith and to cause other parties who have an interest in the Pledge to execute all certificates, agreements, deeds and/or covenants required by Pledgee. Pledgor also undertakes to perform and to cause other parties who have an interest in the Pledge to perform actions required by Pledgee, to facilitate the exercise by Pledgee of its rights and authority granted thereto by this Agreement, and to enter into all relevant documents regarding ownership of Equity Interest with Pledgee or designee(s) of Pledgee (natural persons/legal persons). Pledgor undertakes to provide Pledgee within a reasonable time with all notices, orders and decisions regarding the Pledge that are required by Pledgee.

 

6
Equity Pledge Agreement

 

 

6.4 出质人向质权人保证, 出质人将遵守、履行本合同项下所有的保证、承诺、协议、陈述及条件。如出质人不履行或不完全履行其保证、承诺、协议、陈述及条件, 出质人应赔偿质权人由此遭受的一切损失。

 

Pledgor hereby undertakes to comply with and perform all guarantees, promises, agreements, representations and conditions under this Agreement. In the event of failure or partial performance of its guarantees, promises, agreements, representations and conditions, Pledgor shall indemnify Pledgee for all losses resulting therefrom.

 

6.5 出质人应在本协议签订后尽可能快地向市场监督管理部门办理质押登记手续。

 

The Pledgors shall process the registration procedures with the competent AMR concerning the Pledge as soon as practical after the execution of this Agreement.

 

6.6 未经事先书面通知质权人并获得其事先书面同意, 出质人不得将股权转让, 出质人的所有拟转让股权的行为无效。出质人转让股权所得价款应首先用于提前向质权人清偿担保债务或向与质权人约定的第三人提存。

 

Without notifying Pledgee in advance and obtaining Pledgee’s prior written consent, Pledgor shall not transfer the Equity Interest and any action for the proposed transfer of the Equity Interest of Pledgor shall be invalid. Any payment received by Pledgor for transfer of the Equity Interest shall be firstly used to repay the secured obligations to Pledgee or be placed in escrow with a third party as agreed with Pledgee.

 

第七条 违约事件

 

EVENT OF BREACH

 

7.1 下列事项均被视为违约事件:

 

The following circumstances shall be deemed Event of Default:

 

(1) 丙方未能按期、完整履行控制协议项下任何责任, 包括但不限于丙方未能按期足额支付控制协议项下的应付的咨询服务费等费用或有违反该协议其他义务的行为;

 

Party C fails to fully and timely fulfill any liabilities under the Control Agreements, including without limitation failure to pay in full any of the consulting and service fees payable under the Control Agreements or breaches any other obligations of Party C thereunder;

 

7
Equity Pledge Agreement

 

 

(2) 出质人或丙方实质违反本合同的任何条款;

 

Pledgor or Party C has committed a material breach of any provisions of this Agreement;

 

(3) 除履行股权处分合同外, 出质人舍弃出质的股权或未获得质权人书面同意而擅自转让或意图转让出质的股权;

 

Except for the performance of the Equity Option Agreement, Pledgor transfers or purports to transfer or abandons the Equity Interest pledged or assigns the Equity Interest pledged without the written consent of Pledgee; and

 

(4) 丙方的继承人或代管人只能履行部分或拒绝履行控制协议项下的支付责任;

 

The successor or custodian of Party C is capable of only partially performing or refusing to perform the payment obligations under the Control Agreements.

 

(5) 出质人因其所拥有的财产出现不利变化, 致使质权人认为出质人履行本合同项下的义务的能力已受到影响;

 

The occurrence of any adverse change to the assets or property of the Pledgor, which in Pledgee’s determination, may impact the ability of the Pledgor to perform its obligations hereunder.

 

(6) 按有关法律规定质权人不能或可能不能行使处分质权的其他情况。

 

The occurrence of any other circumstances under which the Pledgee is not or may not able to exercise its rights hereunder in accordance with the applicable law.

 

7.2 如知道或发现本第7.1条所述的任何事项或可能导致上述事项的事件已经发生, 出质人应立即以书面形式通知质权人。

 

Upon notice or discovery of the occurrence of any circumstances or event that may lead to the aforementioned circumstances described in Section 7.1, Pledgor shall immediately notify Pledgee in writing accordingly.

 

7.3 除非第7.1部分下的违约事件在质权人向出质人发出要求其修正此违约行为通知后的二十(20)天之内已经按质权人要求获得救济, 质权人在其后的任何时间, 可向出质人发出书面违约通知, 要求立即依据本合同第8条行使质权权利。

 

Unless an Event of Default set forth in this Section 7.1 has been successfully resolved to Pledgee’s satisfaction within twenty (20) days after the Pledgee delivers a notice to the Pledgor requesting ratification of such Event of Default, Pledgee may issue a Notice of Default to Pledgor in writing at any time thereafter, demanding to immediately dispose of the Pledge in accordance with the provisions of Section 8 of this Agreement.

 

8
Equity Pledge Agreement

 

 

第八条 质权的行使

 

EXERCISE OF PLEDGE

 

8.1 在控制协议所述的咨询服务费等费用未全部偿付前, 未经质权人书面同意, 出质人不得转让其拥有的丙方股权。

 

Prior to the full payment of the consulting and service fees described in the Control Agreements, without the Pledgee’s written consent, Pledgor shall not assign the Equity Interest in Party C.

 

8.2 在质权人行使其质押权利时, 质权人可以向出质人发出书面通知。

 

Pledgee may issue a written notice to Pledgor when exercising the Pledge.

 

8.3 受限于第7.3条的规定, 质权人可在按第7.3条发出违约通知之后的任何时间里对质权行使处分的权利。质权人决定行使处分质权的权利时, 出质人即不再拥有任何与股权有关的权利和利益。

 

Subject to the provisions of Section 7.3, Pledgee may exercise the right to enforce the Pledge at any time after the issuance of the Notice of Default in accordance with Section 7.3. Once Pledgee elects to enforce the Pledge, Pledgor shall cease to be entitled to any rights or interests associated with the Equity Interest.

 

8.4 在违约时, 根据中国有关法律的规定, 质权人有权按照法定程序处置质押股权。在中国法律允许的范围内, 对于处置的所得, 质权人无需给付出质人;出质人特此放弃其可能有的能向质权人要求任何质押股权处置所得的权利。

 

In the event of default, Pledgee is entitled to dispose of the Equity Interest in accordance with applicable PRC laws. Only to the extent permitted under applicable PRC laws, Pledgee has no obligation to account to Pledgor for proceeds of disposition of the Equity Interest, and Pledgor hereby waives any rights it may have to demand any such accounting from Pledgee.

 

8.5 质权人依照本合同处分质权时, 出质人和丙方应予以必要的协助, 以使质权人实现其质权。

 

When Pledgee disposes of the Pledge in accordance with this Agreement, Pledgor and Party C shall provide necessary assistance to enable Pledgee to enforce the Pledge in accordance with this Agreement.

 

9
Equity Pledge Agreement

 

 

第九条 协议的转让

 

ASSIGNMENT

 

9.1 除非经质权人事先同意, 出质人无权赠予或转让其在本合同项下的权利义务。

 

Without Pledgee’s prior written consent, Pledgor shall not have the right to assign or delegate its rights and obligations under this Agreement.

 

9.2 本合同对出质人及其继任人和经许可的受让人均有约束力, 并且对质权人及每一继任人和受让人有效。

 

This Agreement shall be binding on Pledgor and its successors and permitted assigns, and shall be valid with respect to Pledgee and each of its successors and assigns.

 

9.3 质权人可以在任何时候将其在控制协议项下的所有或任何权利和义务转让给其指定的人(自然人/法人), 在这种情况下, 受让人应享有和承担本合同项下质权人享有和承担的权利和义务, 如同其作为原合同方应享有和承担的一样。质权人转让控制协议项下的权利和义务时, 应质权人要求, 出质人应就此转让签署有关协议和/或文件。

 

At any time, Pledgee may assign any and all of its rights and obligations under the Control Agreements to its designee(s) (natural/legal persons), in which case the assigns shall have the rights and obligations of Pledgee under this Agreement, as if it were the original party to this Agreement. When the Pledgee assigns the rights and obligations under the Control Agreements, upon Pledgee’s request, Pledgor shall execute relevant agreements or other documents relating to such assignment.

 

9.4 因转让所导致的质权人变更后, 应质权人要求, 出质人应与新的质权人签订一份内容与本合同一致的新质押合同, 并在相应的市场监督管理机关进行登记。

 

In the event of a change in Pledgee due to an assignment, Pledgor shall, at the request of Pledgee, execute a new pledge agreement with the new pledgee on the same terms and conditions as this Agreement, and register the same with the relevant AMR.

 

9.5 出质人应严格遵守本合同和各方单独或共同签署的其他有关合同的规定, 包括股权处分合同和对质权人的授权委托书, 履行各合同项下的义务, 并不得进行任何足以影响合同的有效性和可强制执行性的作为/不作为行为。除非根据质权人的书面指示, 出质人不得行使其对质押股权还留存的权利。

 

Pledgor shall strictly abide by the provisions of this Agreement and other contracts jointly or separately executed by the Parties hereto or any of them, including the Equity Option Agreement and the Power of Attorney granted to Pledgee, perform the obligations hereunder and thereunder, and refrain from any action/omission that may affect the effectiveness and enforceability thereof. Any remaining rights of Pledgor with respect to the Equity Interest pledged hereunder shall not be exercised by Pledgor except in accordance with the written instructions of Pledgee.

 

10
Equity Pledge Agreement

 

 

第十条 终止

 

TERMINATION

 

在控制协议项下的咨询服务费等费用偿还完毕, 并且丙方不再承担控制协议项下的任何义务之后, 本合同终止, 并且在尽早合理可行的时间内, 质权人应解除本合同下的股权质押。

 

Upon the full payment of the consulting and service fees under the Control Agreements and upon termination of Party C’s obligations under the Control Agreements, this Agreement shall be terminated, and Pledgee shall then terminate the equity pledge under this Agreement as soon as reasonably practicable.

 

第十一条 手续费及其他费用

 

HANDLING FEES AND OTHER EXPENSES

 

一切与本合同有关的费用及实际开支, 其中包括但不限于法律费用、工本费、印花税以及任何其他税收、费用等全部由丙方承担。

 

All fees and out of pocket expenses relating to this Agreement, including but not limited to legal costs, costs of production, stamp tax and any other taxes and fees, shall be borne by Party C.

 

第十二条 保密责任

 

CONFIDENTIALITY

 

各方承认及确定有关本合同、本合同内容, 以及彼此就准备或履行本合同而交换的任何口头或书面资料均被视为保密信息。各方应当对所有该等保密信息予以保密, 而在未得到另一方书面同意前, 不得向任何第三者披露任何保密信息, 惟下列信息除外:(a)公众人士知悉或将会知悉的任何信息(惟并非由接受保密信息之一方擅自向公众披露);(b)根据适用法律法规、股票交易规则、或政府部门或法院的命令而所需披露之任何信息;或(c)由任何一方就本合同所述交易而需向其股东、投资者、法律或财务顾问披露之信息, 而该股东、法律或财务顾问亦需遵守与本条款相类似之保密责任。如任何一方工作人员或聘请机构的泄密均视为该方的泄密, 需依本合同承担违约责任。无论本合同以任何理由终止, 本条款仍然生效。

 

The Parties acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement are regarded as confidential information. Each Party shall maintain confidentiality of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any relevant confidential information to any third parties, except for the information that: (a) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or (c) is required to be disclosed by any Party to its shareholders, investors, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such shareholders, investors, legal counsels or financial advisors shall be bound by the confidentiality obligations similar to those set forth in this Section. Disclosure of any confidential information by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement. This Section shall survive the termination of this Agreement for any reason.

 

11
Equity Pledge Agreement

 

 

第十三条 适用法律和争议的解决

 

GOVERNING LAW AND RESOLUTION OF DISPUTES

 

13.1 本合同的订立、效力、解释、履行、修改和终止以及争议的解决均适用中国法律。

 

The execution, effectiveness, construction, performance, amendment and termination of this Agreement and the resolution of disputes hereunder shall be governed by the laws of China.

 

13.2 因解释和履行本合同而发生的任何争议, 本合同各方应首先通过友好协商的方式加以解决。如果在一方向其他方发出要求协商解决的书面通知后三十(30)天之内争议仍然得不到解决, 则任何一方均可将有关争议提交给位于南京的中国国际经济贸易仲裁委员会江苏仲裁中心, 由该中心按照其仲裁规则仲裁解决。仲裁应在南京进行, 使用之语言为中文。仲裁裁决是终局性的, 对各方均有约束力。

 

In the event of any dispute with respect to the construction and performance of this Agreement, the Parties shall first resolve the dispute through friendly negotiations. In the event the Parties fail to reach an agreement on the dispute within thirty (30) days after either Party’s request to the other Parties for resolution of the dispute through negotiations, either Party may submit the relevant dispute to the Jiangsu Branch of China International Economic and Trade Arbitration Commission for arbitration, in accordance with its Arbitration Rules. The arbitration shall be conducted in Nanjing, and the language used in arbitration shall be Chinese. The arbitration award shall be final and binding on all Parties.

 

13.3 因解释和履行本合同而发生任何争议或任何争议正在进行仲裁时, 除争议的事项外, 本合同各方仍应继续行使各自在本合同项下的其他权利并履行各自在本合同项下的其他义务。

 

Upon the occurrence of any disputes arising from the construction and performance of this Agreement or during the pending arbitration of any dispute, except for the matters under dispute, the Parties to this Agreement shall continue to exercise their respective rights under this Agreement and perform their respective obligations under this Agreement.

 

12
Equity Pledge Agreement

 

 

第十四条 通知

 

NOTICES

 

14.1 本合同项下要求或发出的所有通知和其他通信应通过专人递送、挂号邮寄、邮资预付或商业快递服务的方式发到该方下列地址。每一通知还应再以电子邮件送达。该等通知视为有效送达的日期按如下方式确定:

 

All notices and other communications required or permitted to be given pursuant to this Agreement shall be delivered personally or sent by registered mail, postage prepaid, by a commercial courier service to the address of such party set forth below. A confirmation copy of each notice shall also be sent by E-mail. The dates on which notices shall be deemed to have been effectively given shall be determined as follows:

 

通知如果是以专人递送、快递服务或挂号邮寄、邮资预付发出的, 则以于设定为通知的地址在签收或拒收之日为有效送达日。

 

Notices given by personal delivery, by courier service or by registered mail, postage prepaid, shall be deemed effectively given on the date of acceptance or refusal at the address specified for notices.

 

14.2 为通知的目的, 各方地址如下:

 

For the purpose of notices, the addresses of the Parties are as follows:

 

  甲方: 南京嵘科商务咨询服务有限公司
     
  Party A: Nanjing Rongke Business Consulting Service Co., Ltd.
     
  地址: 南京市高淳区东坝信息新材料产业园872
     
  Address: 872 Dongba IT & New Material Industry Park, Gaochun District, Nanjing, Jiangsu Province, China
     
  收件人Attn: 邵毅 Shao Yi
     
  乙方: 签字股东
     
  Party B: The undersigned shareholders
     
  地址: 见签字页所示地址
     
  Address: See the address in the signature pages

 

13
Equity Pledge Agreement

 

 

  丙方: 江苏旸谷文化发展有限公司
     
  Party C: Jiangsu Yanggu Culture Development Ltd.
     
  地址: 南京市建邺区嘉陵江东街50号康缘智汇港二期41512
     
  Address: Room 1512, Building 4, Kangyuan Zhihui Gang II, No.50 Jianglingjiang East Street, Jianye District, Nanjing, Jiangsu Province China
     
  收件人Attn: 邵毅 Shao Yi

 

14.3 任何一方变更接收通知的地址或联系人的, 应按本条规定给其他方发出通知。

 

If any Party change its address for notices or its contact person, a notice shall be delivered to the other Parties in accordance with the terms hereof.

 

第十五条 分割性

 

SEVERABILITY

 

如果本合同有任何一条或多条规定根据任何法律或法规在任何方面被裁定为无效、不合法或不可执行, 本合同其余规定的有效性、合法性或可执行性不应因此在任何方面受到影响或损害。各方应通过诚意磋商, 争取以法律许可以及各方期望的最大限度内有效的规定取代那些无效、不合法或不可执行的规定, 而该等有效的规定所产生的经济效果应尽可能与那些无效、不合法或不能强制执行的规定所产生的经济效果相似。

 

In the event that one or several of the provisions of this Agreement are found to be invalid, illegal or unenforceable in any aspect in accordance with any laws or regulations, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected or compromised in any respect. The Parties shall strive in good faith to replace such invalid, illegal or unenforceable provisions with effective provisions that accomplish to the greatest extent permitted by law and the intentions of the Parties, and the economic effect of such effective provisions shall be as close as possible to the economic effect of those invalid, illegal or unenforceable provisions.

 

14
Equity Pledge Agreement

 

 

第十六条 附件

 

ATTACHMENTS

 

本合同所列附件, 为本合同不可分割的组成部分。

 

The attachments set forth herein shall be an integral part of this Agreement.

 

第十七条 生效

 

EFFECTIVENESS

 

17.1 本协议自各方签署及盖章之日起生效。

 

This Agreement shall become effective upon and from the date on which it is signed by the authorized representative and seal of each Party.

 

17.2 本合同的任何修改、补充或变更, 均须采用书面形式, 经各方签字或盖章后生效。

 

Any amendments, changes and supplements to this Agreement shall be in writing and shall become effective after the affixation of the signatures or seals of the Parties.

 

17.3 本合同以中文和英文书就, 一式二十一(21)份, 质权人、出质人和丙方各持壹(1)份, 具有同等效力;中英文版本如有冲突, 应以中文版为准。

 

This Agreement is written in Chinese and English in twenty-one (21) copies. Pledgor, Pledgee and Party C shall hold one (1) copy respectively. Each copy of this Agreement shall have equal validity. In case there is any conflict between the Chinese version and the English version, the Chinese version shall prevail.

 

[本页其余部分刻意留为空白]

 

[The Remainder of this page is intentionally left blank]

 

15
Equity Pledge Agreement

 

 

[签字页]

 

[Signature Page]

 

有鉴于此, 各方已使得经其授权的代表于文首所述日期签署了本股权质押合同, 以昭信守。

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Equity Pledge Agreement as of the date first above written.

 

甲方: 南京嵘科商务咨询服务有限公司 (盖章)  
     
Party A: Nanjing Rongke Business Consulting Service Co., Ltd.(seal)  
     
姓名: 邵毅  
     
Name: Shao Yi  
     
职务: 授权代表人  
     
Title: Authorized Representative  
     
签字:    
     
By: /s/ Shao Yi  

 

 
Equity Pledge Agreement

 

 

[签字页]

 

[Signature Page]

 

有鉴于此, 各方已使得经其授权的代表于文首所述日期签署了本股权质押合同, 以昭信守。

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Equity Pledge Agreement as of the date first above written.

 

乙方:  
   
Party B:  
   
持股比例:  
   
Shareholding Ratio:  
   
地址:  
   
Address:  
   
签字:  
   
By:  

 

 
Equity Pledge Agreement

 

 

[签字页]

 

[Signature Page]

 

有鉴于此, 各方已使得经其授权的代表于文首所述日期签署了本股权质押合同, 以昭信守。

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Equity Pledge Agreement as of the date first above written.

 

丙方: 江苏旸谷文化发展有限公司 (盖章)  
     
Party C: Jiangsu Yanggu Culture Development Ltd. (seal)  
     
姓名: 邵毅  
     
Name: Shao Yi  
     
职务: 授权代表人  
     
Title: Authorized Representative  
     
签字:    
     
By: /s/Shao Yi  

 

 

Equity Pledge Agreement

 

Exhibit 10.3

 

股权处分合同

 

Equity Option Agreement

 

本股权处分合同(下称“本合同”)由以下各方于201958日在中华人民共和国(下称“中国”)南京市签订:

 

This Equity Option Agreement (this “Agreement”) is executed by and among the following Parties as of May 8, 2019 in Nanjing, the People’s Republic of China (“China” or the “PRC”):

 

甲方: 南京嵘科商务咨询服务有限公司
   
Party A: Nanjing Rongke Business Consulting Service Co., Ltd.
   
地址: 南京市高淳区东坝信息新材料产业园872
   
Address: 872 Dongba IT & New Material Industry Park, Gaochun District, Nanjing, Jiangsu Province, China
   
乙方: 签字股东
   
Party B : The undersigned shareholders
   
地址: 见签字页所示地址
   
Address: See the address in the signature pages
   
丙方: 江苏旸谷文化发展有限公司
   
Party C: Jiangsu Yanggu Culture Development Ltd.
   
地址: 南京市建邺区嘉陵江东街50号康缘智汇港二期41512
   
Address: Room 1512, Building 4, Kangyuan Zhihui Gang II, No.50 Jianglingjiang East Street, Jianye District, Nanjing, Jiangsu Province China

 

1

Equity Option Agreement

 

 

在本合同中, 甲方、乙方和丙方以下各称一方, 合称各方

 

In this Agreement, each of Party A, Party B and Party C shall be referred to as a “Party” respectively, and they shall be collectively referred to as the “Parties”.

 

鉴于, 乙方合计持有丙方100%的股权权益, 甲方与丙方签订了技术咨询与服务协议等一系列控制性协议(控制协议)。

 

Whereas, Party B collectively holds 100% of the equity interest in Party C. Party A and Party C have executed a Technical Consultation and Service Agreement and other control agreements (the “Control Agreements”).

 

现各方协商一致, 达成如下协议:

 

Now therefore, upon mutual discussion and negotiation, the Parties have reached the following agreement:

 

第一条 股权买卖

 

SALE AND PURCHASE OF EQUITY INTEREST

 

1.1 授予权利

 

Option Granted

 

鉴于甲方向乙方支付了人民币1元作为对价, 且乙方确认收到并认为该对价足够, 乙方在此不可撤销地同意, 在中国法律允许的前提下, 甲方可以按照自行决定的行使步骤, 并按照本合同第1.3条所述的价格, 要求乙方履行和完成中国法律要求的一切审批和登记手续, 使得甲方可以随时一次或多次从乙方购买, 或指定一人或多人(被指定人)乙方购买乙方所持有的丙方的全部或部分股权(“股权购买权”)。甲方的该股权购买权为独家的。除甲方和被指定人外, 任何第三人均不得享有股权购买权或其他与乙方股权有关的权利。丙方特此同意乙方向甲方授予股权购买权。本款及本合同所规定的指个人、公司、合营企业、合伙、企业、信托或非公司组织。

 

In consideration of the payment of RMB 1 by Party A, the receipt and adequacy of which is hereby acknowledged by Party B, Party B hereby irrevocably agrees that, on the condition that it is permitted by the PRC laws, Party A has the right to require Party B to fulfill and complete all approval and registration procedures required under PRC laws for Party A to purchase, or designate one or more persons (each, a “Designee”) to purchase, Party B’s equity interests in Party C, once or at multiple times at any time in part or in whole at Party A’s sole and absolute discretion and at the price described in Section 1.3 herein (such right being the “Equity Interest Purchase Option”). Party A’s Equity Interest Purchase Option shall be exclusive. Except for Party A and the Designee(s), no other person shall be entitled to the Equity Interest Purchase Option or other rights with respect to the equity interests of Party B. Party C hereby agrees to the grant by Party B of the Equity Interest Purchase Option to Party A. The term “person” as used herein shall refer to individuals, corporations, partnerships, partners, enterprises, trusts or non-corporate organizations.

 

2

Equity Option Agreement

 

 

1.2 行使步骤

 

Steps for Exercise of Equity Interest Purchase Option

 

甲方行使其股权购买权以符合中国法律和法规的规定为前提。甲方行使股权购买权时, 应向乙方发出书面通知(“股权购买通知”), 股权购买通知应载明以下事项:(a)甲方关于行使股权购买权的决定; (b)甲方拟从乙方购买的股权份额(“被购买股权”); 和(c) 被购买股权的购买日/转让日。

 

Subject to the provisions of the laws and regulations of China, Party A may exercise the Equity Interest Purchase Option by issuing a written notice to Party B (the “Equity Interest Purchase Option Notice”), specifying: (a) Party A’s decision to exercise the Equity Interest Purchase Option; (b) the portion of equity interests to be purchased from Party B (the “Optioned Interests”); and (c) the date for purchasing the Optioned Interests and/or the date for transfer of the Optioned Interests.

 

1.3 股权买价

 

Equity Interest Purchase Price

 

被购买股权的买价(基准买价)应为中国法律所允许的最低价格。如果在甲方行权时中国法律要求评估股权, 各方通过诚信原则另行商定, 并在评估基础上对该股权买价进行必要调整, 以符合当时适用之任何中国法律之要求(统称“股权买价”)。如果当基准买价高于1元时, 乙方免除甲方支付义务, 同意甲方无需履行支付。

 

The purchase price of the Optioned Interests (the “Base Price”) shall be the lowest price allowed by the laws of China. If appraisal is required by the laws of China at the time when Party A exercises the Equity Interest Purchase Option, the Parties shall negotiate in good faith and based on the appraisal result make necessary adjustment to the Equity Interest Purchase Price so that it complies with any and all then applicable laws of China (collectively, the “Equity Interest Purchase Price”). When the Base Price is higher than One RMB, Party B shall exempt Party A from the obligation of payment and agree that Party A shall not fulfill the payment.

 

1.4 转让被购买股权

 

Transfer of Optioned Interests

 

甲方每次行使股权购买权时:

 

For each exercise of the Equity Interest Purchase Option:

 

(1) 乙方应责成丙方及时召开股东会会议, 在该会议上, 应通过批准乙方向甲方和/或被指定人转让被购买股权的决议;

 

Party B shall cause Party C to promptly convene a shareholders’ meeting, at which a resolution shall be adopted approving Party B’s transfer of the Optioned Interests to Party A and/or the Designee(s);

 

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Equity Option Agreement

 

 

(2) 乙方应就其向甲方和/或被指定人转让被购买股权取得丙方其他股东同意该转让并放弃优先购买权的书面声明。

 

Party B shall obtain written statements from the other shareholders of Party C giving consent to the transfer of the equity interest to Party A and/or the Designee(s) and waiving any right of first refusal related thereto.

 

(3) 乙方应与甲方和/(在适用的情况下)被指定人按照本合同及股权购买通知的规定, 为每次转让签订股权转让合同;

 

Party B shall execute a share transfer contract with respect to each transfer with Party A and/or each Designee (whichever is applicable), in accordance with the provisions of this Agreement and the Equity Interest Purchase Option Notice regarding the Optioned Interests;

 

(4) 有关方应签署所有其他所需合同、协议或文件, 取得全部所需的政府批准和同意, 并采取所有所需行动, 在不附带任何担保权益的情况下, 将被购买股权的有效所有权转移给甲方和/或被指定人并使甲方和/或被指定人成为被购买股权的登记在册所有人。为本款及本合同的目的, 担保权益包括担保、抵押、第三方权利或权益, 任何购股权、收购权、优先购买权、抵销权、所有权扣留或其他担保安排等; 但为了明确起见, 不包括在本合同、乙方股权质押合同项下产生的任何担保权益。本款及本合同所规定的乙方股权质押合同指甲方、乙方和丙方于本合同签署之日, 乙方为担保丙方能履行丙方与甲方签订的控制协议项下的义务, 而向甲方质押其在丙方的全部乙方股权而签订的股权质押合同。

 

The relevant Parties shall execute all other necessary contracts, agreements or documents, obtain all necessary government licenses and permits and take all necessary actions to transfer valid ownership of the Optioned Interests to Party A and/or the Designee(s), unencumbered by any security interests, and cause Party A and/or the Designee(s) to become the registered owner(s) of the Optioned Interests. For the purpose of this Section and this Agreement, “security interests” shall include securities, mortgages, third party’s rights or interests, any stock options, acquisition right, right of first refusal, right to offset, ownership retention or other security arrangements, but shall be deemed to exclude any security interest created by this Agreement and Party B’s Equity Pledge Agreement. “Party B’s Equity Pledge Agreement” as used in this Section and this Agreement shall refer to the Equity Pledge Agreement (“Party B’s Equity Pledge Agreement”) executed by and among Party A, Party B and Party C as of the date hereof, whereby Party B pledges all of its equity interests in Party C to Party A, in order to guarantee Party C’s performance of its obligations under the Control Agreements executed by and between Party C and Party A.

 

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Equity Option Agreement

 

 

第二条 承诺

 

COVENANTS

 

2.1 有关丙方的承诺

 

Covenants regarding Party C

 

乙方(作为丙方的股东)和丙方在此承诺:

 

Party B (as the shareholders of Party C) and Party C hereby covenant as follows:

 

(1) 未经甲方的事先书面同意, 不以任何形式补充、更改或修改丙方公司章程文件, 增加或减少其注册资本, 或以其他方式改变其注册资本结构;

 

Without the prior written consent of Party A, they shall not in any manner supplement, change or amend the articles of association and bylaws of Party C, increase or decrease its registered capital, or change its structure of registered capital in other manners;

 

(2) 按照良好的财务和商业标准及惯例, 保持其公司的存续, 审慎地及有效地经营其业务和处理事务;

 

They shall maintain Party C’s corporate existence in accordance with good financial and business standards and practices by prudently and effectively operating its business and handling its affairs;

 

(3) 未经甲方的事先书面同意, 不在本合同签署之日起的任何时间出售、转让、抵押或以其他方式处置丙方的任何资产、业务或收入的合法或受益权益, 或允许在其上设置任何其他担保权益;

 

Without the prior written consent of Party A, they shall not at any time following the date hereof, sell, transfer, mortgage or dispose of in any manner any assets of Party C or legal or beneficial interest in the business or revenues of Party C, or allow the encumbrance thereon of any security interest;

 

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Equity Option Agreement

 

 

(4) 未经甲方的事先书面同意, 不发生、继承、保证或容许存在任何债务, 但(i)正常或日常业务过程中产生而不是通过借款方式产生的债务; 和(ii)已向甲方披露和得到甲方书面同意的债务除外;

 

Without the prior written consent of Party A, they shall not incur, inherit, guarantee or suffer the existence of any debt, except for (i) debts incurred in the ordinary course of business other than through loans; and (ii) debts disclosed to Party A for which Party A’s written consent has been obtained;

 

(5) 一直在正常业务过程中经营所有业务, 以保持丙方的资产价值, 不进行任何足以影响其经营状况和资产价值的作为/不作为;

 

They shall always operate all of Party C’s businesses during the ordinary course of business to maintain the asset value of Party C and refrain from any action/omission that may affect Party C’s operating status and asset value;

 

(6) 未经甲方的事先书面同意, 不得让丙方签订任何重大合同, 但在正常业务过程中签订的合同除外(就本段而言, 如果一份合同的总金额超过人民币100,000元, 即被视为重大合同);

 

Without the prior written consent of Party A, they shall not cause Party C to execute any major contract, except the contracts in the ordinary course of business (for purpose of this subsection, a contract with a price exceeding RMB 100,000 shall be deemed a major contract);

 

(7) 未经甲方的事先书面同意, 丙方不得向任何人提供贷款或信贷;

 

Without the prior written consent of Party A, they shall not cause Party C to provide any person with any loan or credit;

 

(8) 应甲方要求, 向其提供所有关于丙方的营运和财务状况的资料;

 

They shall provide Party A with information on Party C’s business operations and financial condition at Party A’s request;

 

(9) 如甲方提出要求, 丙方应从甲方接受的保险公司处购买和持有有关其资产和业务的保险, 该保险的金额和险种应与经营类似业务的公司一致;

 

If requested by Party A, they shall procure and maintain insurance in respect of Party C’s assets and business from an insurance carrier acceptable to Party A, at an amount and type of coverage typical for companies that operate similar businesses;

 

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Equity Option Agreement

 

 

(10) 未经甲方的事先书面同意, 丙方不得与任何人合并或联合, 或对任何人进行收购或投资;

 

Without the prior written consent of Party A, they shall not cause or permit Party C to merge, consolidate with, acquire or invest in any person;

 

(11) 将发生的或可能发生的与丙方资产、业务或收入有关的诉讼、仲裁或行政程序立即通知甲方;

 

They shall immediately notify Party A of the occurrence or possible occurrence of any litigation, arbitration or administrative proceedings relating to Party C’s assets, business or revenue;

 

(12) 为保持丙方对其全部资产的所有权, 签署所有必要或适当的文件, 采取所有必要或适当的行动和提出所有必要或适当的控告或对所有索偿进行必要和适当的抗辩;

 

To maintain the ownership by Party C of all of its assets, they shall execute all necessary or appropriate documents, take all necessary or appropriate actions and file all necessary or appropriate complaints or raise necessary and appropriate defenses against all claims;

 

(13) 未经甲方事先书面同意, 不得以任何形式派发股息予各股东, 但一经甲方要求, 丙方应立即将其所有可分配利润全部立即分配给其各股东; 及

 

Without the prior written consent of Party A, they shall ensure that Party C shall not in any manner distribute dividends to its shareholders, provided that upon Party A’s written request, Party C shall immediately distribute all distributable profits to its shareholders; and

 

(14) 根据甲方的要求, 委任由其指定的任何人士出任丙方的董事; 未经甲方事先书面同意, 不得更换丙方的董事。

 

At the request of Party A, they shall appoint any persons designated by Party A as directors of Party C; without the prior written consent of Party A, they shall not replace the directors of Party C.

 

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Equity Option Agreement

 

 

2.2 乙方的承诺

 

Covenants of Party B

 

乙方承诺:

 

Party B hereby covenants as follows:

 

(1) 未经甲方的事先书面同意, 不出售、转让、抵押或以其他方式处置其拥有的丙方的股权的合法或受益权益, 或允许在其上设置任何其他担保权益, 但根据乙方股权质押合同在该股权上设置的质押则除外;

 

Without the prior written consent of Party A, Party B shall not sell, transfer, mortgage or dispose of in any other manner any legal or beneficial interest in the equity interests in Party C held by Party B, or allow the encumbrance thereon of any security interest, except for the pledge placed on these equity interests in accordance with Party B’s Equity Pledge Agreement;

 

(2) 促使丙方股东会和/或董事会不批准在未经甲方的事先书面同意的情况下, 出售、转让、抵押或以其他方式处置任何乙方持有之丙方的股权的合法权益或受益权, 或允许在其上设置任何其他担保权益, 但批准根据乙方股权质押合同在乙方股权上设置的质押则除外;

 

Party B shall cause the shareholders’ meeting and/or the board of directors of Party C not to approve the sale, transfer, mortgage or disposition in any other manner of any legal or beneficial interest in the equity interests in Party C held by Party B, or allow the encumbrance thereon of any security interest, without the prior written consent of Party A, except for the pledge placed on these equity interests in accordance with Party B’s Equity Pledge Agreement;

 

(3) 未经甲方的事先书面同意的情况下, 对于丙方与任何人合并或联合, 或对任何人进行收购或投资, 乙方将促成丙方股东会或董事会不予批准;

 

Party B shall cause the shareholders’ meeting or the board of directors of Party C not to approve the merger or consolidation with any person, or the acquisition of or investment in any person, without the prior written consent of Party A;

 

(4) 将发生的或可能发生的任何关于其所拥有的股权的诉讼、仲裁或行政程序立即通知甲方;

 

Party B shall immediately notify Party A of the occurrence or possible occurrence of any litigation, arbitration or administrative proceedings relating to the equity interests in Party C held by Party B;

 

(5) 促使丙方股东会或董事会表决赞成本合同规定的被购买股权的转让并应甲方之要求采取其他任何行动;

 

Party B shall cause the shareholders’ meeting or the board of directors of Party C to vote their approval of the transfer of the Optioned Interests as set forth in this Agreement and to take any and all other actions that may be requested by Party A;

 

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Equity Option Agreement

 

 

(6) 为保持其对股权的所有权, 签署所有必要或适当的文件, 采取所有必要或适当的行动和提出所有必要或适当的控告或对所有索偿进行必要和适当的抗辩;

 

To the extent necessary to maintain Party B’s ownership in Party C, Party B shall execute all necessary or appropriate documents, take all necessary or appropriate actions and file all necessary or appropriate complaints or raise necessary and appropriate defenses against all claims;

 

(7) 应甲方的要求, 委任由其指定的任何人士出任丙方的董事和/或执行董事; 未经甲方事先书面同意, 不得更换丙方的董事;

 

Party B shall appoint any designee of Party A as director and/or executive director of Party C, at the request of Party A; without the prior written consent of Party A, they shall not replace the directors of Party C;

 

(8) 应甲方的要求, 不时向甲方和/或其指定的个人出具授权委托书, 授权甲方和/或其指定的个人行使与丙方有关的股东表决权;

 

Party B shall issue such power of attorney as Party A may request from time to time, to authorize Party A and/or the individual designated by Party A to exercise Party B’s voting rights as a shareholder in Party C.

 

(9) 经甲方随时要求, 应向其指定的代表在任何时间无条件地根据本合同的股权购买权立即转让其股权, 并放弃其对另一现有股东进行其相应股权转让所享有的优先购买权(如有的话); 和

 

At the request of Party A at any time, Party B shall promptly and unconditionally transfer its equity interests in Party C to Party A’s Designee(s) in accordance with the Equity Interest Purchase Option under this Agreement, and Party B hereby waives its right of first refusal to the respective share transfer by the other existing shareholder of Party C (if any); and

 

(10) 严格遵守本合同及乙方、丙方与甲方共同或分别签订的其他合同的各项规定, 切实履行该等合同项下的各项义务, 并不进行任何足以影响该等合同的有效性和可执行性的作为/不作为。如果乙方对于本合同项下或本合同各方签署的乙方股权质押合同项下或对甲方和/或其指定的个人出具的授权委托书中的股权, 还留存有任何权利, 除非甲方书面指示, 否则乙方仍不得行使该权利。

 

Party B shall strictly abide by the provisions of this Agreement and other contracts jointly or separately executed by and among Party B, Party C and Party A, perform the obligations hereunder and thereunder, and refrain from any action/omission that may affect the effectiveness and enforceability thereof. If Party B retains any additional rights other than those rights provided for under this Agreement, Party B’s Equity Pledge Agreement and the powers of attorney issued to Party A and/or the individual designated by Party A, Party B shall not exercise such rights without Party A’s written direction.

 

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Equity Option Agreement

 

 

第三条       陈述和保证

 

REPRESENTATIONS AND WARRANTIES

 

乙方和丙方特此在本合同签署之日向甲方共同及分别陈述和保证如下:

 

Party B and Party C hereby represent and warrant to Party A, jointly and severally, as of the date of this Agreement that:

 

3.1 其具有签订和交付本合同和其为一方的、根据本合同为每一次转让被购买股权而签订的任何股权转让合同(各称为“转让合同”), 并履行其在本合同和任何转让合同项下的义务的权力和能力。乙方和丙方同意在甲方行使购买权时, 他们将签署与本合同条款一致的转让合同。本合同和其是一方的各转让合同一旦签署后, 构成或将对其构成合法、有效及具有约束力的义务并可按照其条款对其强制执行;

 

They have the authority to execute and deliver this Agreement and any share transfer contracts to which they are parties concerning the Optioned Interests to be transferred thereunder (each, a “Transfer Contract”), and to perform their obligations under this Agreement and any Transfer Contracts. Party B and Party C agree to enter into Transfer Contracts consistent with the terms of this Agreement upon Party A’s exercise of the Equity Interest Purchase Option. This Agreement and the Transfer Contracts to which they are parties constitute or will constitute their legal, valid and binding obligations and shall be enforceable against them in accordance with the provisions thereof;

 

3.2 无论是本合同或任何转让合同的签署和交付还是其在本合同或任何转让合同项下的义务的履行均不会:(i)导致违反任何有关的中国法律; (ii)与丙方章程或其他组织文件相抵触; (iii)导致违反其是一方或对其有约束力的任何合同或文件, 或构成其是一方或对其有约束力的任何合同或文件项下的违约; (iv)导致违反有关向任何一方颁发的任何许可或批准的授予和()继续有效的任何条件; 或(v)导致向任何一方颁发的任何许可或批准中止或被撤销或附加条件;

 

The execution and delivery of this Agreement or any Transfer Contracts and the obligations under this Agreement or any Transfer Contracts shall not: (i) cause any violation of any applicable laws of China; (ii) be inconsistent with the articles of association, bylaws or other organizational documents of Party C; (iii) cause the violation of any contracts or instruments to which they are a party or which are binding on them, or constitute any breach under any contracts or instruments to which they are a party or which are binding on them; (iv) cause any violation of any condition for the grant and/or continued effectiveness of any licenses or permits issued to either of them; or (v) cause the suspension or revocation of or imposition of additional conditions to any licenses or permits issued to either of them;

 

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Equity Option Agreement

 

 

3.3 乙方对其在丙方拥有的股权拥有良好和可出售的所有权, 除乙方股权质押合同外, 乙方在上述股权上没有设置任何担保权益;

 

Party B has a good and merchantable title to the equity interests in Party C he holds. Except for Party B’s Equity Pledge Agreement, Party B has not placed any security interest on such equity interests;

 

3.4 丙方对所有资产拥有良好和可出售的所有权, 丙方在上述资产上没有设置任何担保权益;

 

Party C has a good and merchantable title to all of its assets, and has not placed any security interest on the aforementioned assets;

 

3.5 丙方没有任何未偿还债务, 除(i)在其正常的业务过程中发生的债务, 及(ii)已向甲方披露及经甲方书面同意债务除外;

 

Party C does not have any outstanding debts, except for (i) debt incurred in the ordinary course of business; and (ii) debts disclosed to Party A for which Party A’s written consent has been obtained.

 

3.6 丙方遵守适用于股权、资产的收购的所有法律和法规; 和

 

Party C has complied with all laws and regulations of China applicable to equity or asset acquisitions; and

 

3.7 目前没有悬而未决的或构成威胁的与股权、丙方资产有关的或与丙方有关的诉讼、仲裁或行政程序。

 

There are no pending or threatened litigation, arbitration or administrative proceedings relating to the equity interests in Party C, assets of Party C or Party C.

 

第四条 生效日

 

EFFECTIVE DATE

 

本协议自各方签署及盖章之日起生效。本协议在乙方拥有的全部丙方股权根据本协议的约定依法转让至甲方和/或被指定人名下后终止。

 

This Agreement shall become effective upon and from the date on which it is signed by the authorized representative and seal of each Party. This Agreement shall remain effective until all the equity interest owned by Party B in Party C has been legally transferred to Party A or the Designee(s) in accordance with this Agreement.

 

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Equity Option Agreement

 

 

第五条 法律适用和争议解决

 

GOVERNING LAW AND RESOLUTION OF DISPUTES

 

5.1 本合同的订立、效力、解释、履行、修改和终止以及争议解决均适用中国正式公布并可公开得到的法律。对中国正式公布并可公开得到的法律没有规定的事项, 将适用国际法律原则和惯例。

 

The execution, effectiveness, construction, performance, amendment and termination of this Agreement and the resolution of disputes hereunder shall be governed by the formally published and publicly available laws of China. Matters not covered by formally published and publicly available laws of China shall be governed by international legal principles and practices.

 

5.2 因解释和履行本合同而发生的任何争议, 本合同各方应首先通过友好协商的方式加以解决。如果在一方向其他方发出要求协商解决的书面通知后三十(30)天之内争议仍然得不到解决, 则任何一方均可将有关争议提交给位于南京的中国国际经济贸易仲裁委员会江苏仲裁中心, 由该中心按照其仲裁规则仲裁解决。仲裁应在南京进行, 使用之语言为中文。仲裁裁决是终局性的, 对各方均有约束力。

 

In the event of any dispute with respect to the construction and performance of this Agreement, the Parties shall first resolve the dispute through friendly negotiations. In the event the Parties fail to reach an agreement on the dispute within thirty (30) days after either Party’s request to the other Parties for resolution of the dispute through negotiations, either Party may submit the relevant dispute to the Jiangsu Branch of China International Economic and Trade Arbitration Commission for arbitration, in accordance with its Arbitration Rules. The arbitration shall be conducted in Nanjing, and the language used in arbitration shall be Chinese. The arbitration award shall be final and binding on all Parties.

 

第六条 税款、费用

 

TAXES AND FEES

 

每一方应承担根据中国法律因准备和签署本合同和各转让合同以及完成本合同和各转让合同拟定的交易而由该方发生的或对其征收的任何和全部的转让和注册的税、花费和费用。

 

Each Party shall pay any and all transfer and registration tax, expenses and fees incurred thereby or levied thereon in accordance with the laws of China in connection with the preparation and execution of this Agreement and the Transfer Contracts, as well as the consummation of the transactions contemplated under this Agreement and the Transfer Contracts.

 

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Equity Option Agreement

 

 

第七条 通知

 

NOTICES

 

7.1 本合同项下要求或发出的所有通知和其他通信应通过专人递送、挂号邮寄、邮资预付或商业快递服务的方式发到该方下列地址。每一通知还应再以电子邮件送达。该等通知视为有效送达的日期按如下方式确定:

 

All notices and other communications required or permitted to be given pursuant to this Agreement shall be delivered personally or sent by registered mail, postage prepaid, by a commercial courier service to the address of such Party set forth below. A confirmation copy of each notice shall also be sent by email. The dates on which notices shall be deemed to have been effectively given shall be determined as follows:

 

通知如果是以专人递送、快递服务或挂号邮寄、邮资预付发出的, 则以于设定为通知的地址在签收或拒收之日为有效送达日。

 

Notices given by personal delivery, by courier service or by registered mail, postage prepaid, shall be deemed effectively given on the date of acceptance or refusal at the address specified for notices.

 

7.2 为通知的目的, 各方地址如下:

 

For the purpose of notices, the addresses of the Parties are as follows:

 

  甲方: 南京嵘科商务咨询服务有限公司
     
  Party A: Nanjing Rongke Business Consulting Service Co., Ltd.
     
  地址: 南京市高淳区东坝信息新材料产业园872
     
  Address: 872 Dongba IT & New Material Industry Park, Gaochun District, Nanjing, Jiangsu Province, China
     
  收件人Attn: 邵毅 Shao Yi

 

13

Equity Option Agreement

 

 

  乙方: 签字股东
     
  Party B: The undersigned shareholders
     
  地址: 见签字页所示地址
     
  Address: See the address in the signature pages
     
  丙方: 江苏旸谷文化发展有限公司
     
  Party C: Jiangsu Yanggu Culture Development Ltd.
     
  地址: 南京市建邺区嘉陵江东街50号康缘智汇港二期41512
     
  Address: Room 1512, Building 4, Kangyuan Zhihui Gang II, No.50 Jianglingjiang East Street, Jianye District, Nanjing, Jiangsu Province China
     
  收件人Attn: 邵毅 Shao Yi

 

7.3 任何一方变更接收通知的地址或联系人的, 应按本条规定给另一方发出通知。

 

If any Party change its address for notices or its contact person, a notice shall be delivered to the other Party in accordance with the terms hereof.

 

第八条 保密责任

 

CONFIDENTIALITY

 

各方承认及确定有关本合同、本合同内容, 以及彼此就准备或履行本合同而交换的任何口头或书面资料均被视为保密信息。各方应当对所有该等保密信息予以保密, 而在未得到另一方书面同意前, 不得向任何第三者披露任何保密信息, 下列信息除外:(a)公众人士知悉或将会知悉的任何信息(并非由接受保密信息之一方擅自向公众披露); (b)根据适用法律法规、股票交易规则、或政府部门或法院的命令而所需披露之任何信息; 或(c)由任何一方就本合同所述交易而需向其股东、投资者、法律或财务顾问披露之信息, 而该股东、法律或财务顾问亦需遵守与本条款相类似之保密责任。如任何一方工作人员或聘请机构的泄密均视为该方的泄密, 需依本合同承担违约责任。无论本合同以任何理由终止, 本条款仍然生效。

 

The Parties acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement are regarded as confidential information. Each Party shall maintain confidentiality of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any relevant confidential information to any third parties, except for the information that: (a) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or (c) is required to be disclosed by any Party to its shareholders, investors, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such shareholders, investors, legal counsels or financial advisors shall be bound by the confidentiality obligations similar to those set forth in this Section. Disclosure of any confidential information by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement. This Section shall survive the termination of this Agreement for any reason.

 

14

Equity Option Agreement

 

 

第九条 进一步保证

 

FURTHER WARRANTIES

 

各方同意迅速签署为执行本合同的各项规定和目的而合理需要的或对其有利的文件, 以及为执行本合同的各项规定和目的而采取合理需要的或对其有利的进一步行动。

 

The Parties agree to promptly execute documents that are reasonably required for or are conducive to the implementation of the provisions and purposes of this Agreement and take further actions that are reasonably required for or are conducive to the implementation of the provisions and purposes of this Agreement.

 

第十条 其他

 

MISCELLANEOUS

 

10.1 修订、修改与补充

 

Amendment, change and supplement

 

对本合同作出修订、修改与补充, 必须经每一方签署书面协议。

 

Any amendment, change and supplement to this Agreement shall require the execution of a written agreement by all of the Parties.

 

10.2 完整合同

 

Entire agreement

 

除了在本合同签署后所作出的书面修订、补充或修改以外,本合同构成本合同各方就本合同标的物所达成的完整合同,取代在此之前就本合同标的物所达成的所有口头或书面的协商、陈述和合同。

 

Except for the amendments, supplements or changes in writing executed after the execution of this Agreement, this Agreement shall constitute the entire agreement reached by and among the Parties hereto with respect to the subject matter hereof, and shall supersede all prior oral and written consultations, representations and contracts reached with respect to the subject matter of this Agreement.

 

15

Equity Option Agreement

 

 

10.3 标题

 

Headings

 

本合同的标题仅为方便阅读而设, 不应被用来解释、说明或在其他方面影响本合同各项规定的含义。

 

The headings of this Agreement are for convenience only, and shall not be used to interpret, explain or otherwise affect the meanings of the provisions of this Agreement.

 

10.4 语言

 

Language

 

本合同以中文和英文书就, 一式二十一(21)份, 各方当事人各持壹(1)份, 具有同等效力; 中英文版本如有冲突, 应以中文版为准。

 

This Agreement is written in both Chinese and English language in twenty-one (21) copies, each party having one (1) copy with equal legal validity; in case there is any conflict between the Chinese version and the English version, the Chinese version shall prevail.

 

10.5 可分割性

 

Severability

 

如果本合同有任何一条或多条规定根据任何法律或法规在任何方面被裁定为无效、不合法或不可执行, 本合同其余规定的有效性、合法性或可执行性不应因此在任何方面受到影响或损害。各方应通过诚意磋商, 争取以法律许可以及各方期望的最大限度内有效的规定取代那些无效、不合法或不可执行的规定, 而该等有效的规定所产生的经济效果应尽可能与那些无效、不合法或不能强制执行的规定所产生的经济效果相似。

 

In the event that one or several of the provisions of this Agreement are found to be invalid, illegal or unenforceable in any aspect in accordance with any laws or regulations, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected or compromised in any respect. The Parties shall strive in good faith to replace such invalid, illegal or unenforceable provisions with effective provisions that accomplish to the greatest extent permitted by law and the intentions of the Parties, and the economic effect of such effective provisions shall be as close as possible to the economic effect of those invalid, illegal or unenforceable provisions.

 

16

Equity Option Agreement

 

 

10.6 继任者

 

Successors

 

本合同对各方各自的继任者和各方所允许的受让方应具有约束力并对其有利。

 

This Agreement shall be binding on and shall inure to the interest of the respective successors of the Parties and the permitted assigns of such Parties.

 

10.7 弃权

 

Waivers

 

任何一方可以对本合同的条款和条件作出弃权, 但必须经书面作出并经各方签字。一方在某种情况下就其他方的违约所作的弃权不应被视为该方在其他情况下就类似的违约已经对其他方作出弃权。

 

Any Party may waive the terms and conditions of this Agreement, provided that such a waiver must be provided in writing and shall require the signatures of the Parties. No waiver by any Party in certain circumstances with respect to a breach by other Parties shall operate as a waiver by such a Party with respect to any similar breach in other circumstances.

 

10.8 继续有效

 

Survival

 

(1) 合同期满或提前终止前因本合同而发生的或到期的任何义务在本合同期满或提前终止后继续有效。

 

Any obligations that occur or that are due as a result of this Agreement upon the expiration or early termination of this Agreement shall survive the expiration or early termination thereof.

 

(2) 本合同第578条和本第10.8条的规定在本合同终止后继续有效。

 

The provisions of Sections 5, 7, 8 and this Section 10.8 shall survive the termination of this Agreement.

 

17

Equity Option Agreement

 

 

10.9 违约责任

 

LIABILITY FOR BREACH OF AGREEMENT

 

(1) 各方同意并确认, 如一方(以下称“违约方”)实质性地违反本合同项下所作的任何一项约定, 或实质性地未履行本合同项 下的任何一项义务, 即构成本合同项下的违约(以下称违约), 守约方有权要求违约方在合理期限内补正或采取补救措施。如违约方在合理期限内或在守约方书面通知违约方并提出补正要求后十(10)天内仍未补正或采取补救措施的, 则守约方有权自行决定选择以下的任一种违约救济方式:(1)终止本合同, 并要求违约方给予全部的损害赔偿; (2)要求强制履行违约方在本合同项下的义务, 并要求违约方给予全部的损害赔偿; 或者(3)按照乙方股权质押合同的约定以质押股权折价, 拍卖或者变卖, 并以折价、拍卖或者变卖的价款优先受偿, 并要求违约方承担由此造成的全部损失;

 

The Parties agree and confirm that, if any Party (the “Defaulting Party”) is in material breach of any provisions herein or fails to perform any obligations hereunder in any material respect, such breach or failure shall constitute a default under this Agreement (the “Default”), which shall entitle non-defaulting Party to request Defaulting Party to rectify or remedy such Default with a reasonable period of time. If the Defaulting Party fails to rectify or remedy such Default within the reasonable period of time or within 10 days of non-defaulting Party’s written notice requesting for such rectification or remedy, the non-defaulting Party shall be entitled to elect any one of the following remedial actions: (a) to terminate this Agreement and request the Defaulting Party to fully compensate its losses and damages; (b) to request the specific performance by the Defaulting Party of its obligations hereunder and request the Defaulting Party to fully compensate non-defaulting Party’s losses and damages; or (c) to enforce the pledge under the Party B’s Equity Pledge Agreement by selling, auctioning or exchanging the pledged equity thereunder and receive payment in priority from the proceeds derived therefrom, and in the meantime, request the Defaulting Party to fully compensate non-defaulting Party for any losses as a result thereof.

 

(2) 本合同规定的权利和救济是累积的, 并不排斥法律规定的其他权利或者救济;

 

The rights and remedies provided for in this Agreement shall be accumulative and shall not affect any other rights and remedies stipulated at law.

 

[本页其余部分刻意留为空白]

 

[The Remainder of this page is intentionally left blank]

 

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Equity Option Agreement

 

 

[签字页]

 

[Signature Page]

 

有鉴于此, 各方已使得经其授权的代表于文首所述日期签署了本股权处分合同, 以昭信守。

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Equity Option Agreement as of the date first above written.

 

甲方: 南京嵘科商务咨询服务有限公司 (盖章)
Party A: Nanjing Rongke Business Consulting Service Co., Ltd.  (seal)
姓名: 邵毅
Name:  Shao Yi
   
职务: 授权代表人
Title: Authorized Representative
   
签字:  
By: /s/Shao Yi  

  

Equity Option Agreement

 

 

 

[签字页]

 

[Signature Page]

 

有鉴于此, 各方已使得经其授权的代表于文首所述日期签署了本股权处分合同, 以昭信守。

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Equity Option Agreement as of the date first above written.

 

乙方:  
Party B:  
   
持股比例:  
Shareholding Ratio:   
   
地址:  
Address:  
           
签字:  
By:                                               

 

 

Equity Option Agreement

 

 

 

[签字页]

 

[Signature Page]

 

有鉴于此, 各方已使得经其授权的代表于文首所述日期签署了本股权处分合同, 以昭信守。

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Equity Option Agreement as of the date first above written.

 

丙方: 江苏旸谷文化发展有限公司(盖章)
Party C: Jiangsu Yanggu Culture Development Ltd. (seal)
   
姓名: 邵毅
Name: Shao Yi
   
职务: 授权代表人
Title: Authorized Representative
   
签字:  
By: /s/Shao Yi  

 

 

Equity Option Agreement

 

Exhibit 10.4

 

股东表决权委托及财务支持协议

 

Voting Rights Proxy and Financial Supporting Agreement

 

本股东表决权委托及财务支持协议(以下称“本协议)201958日在中华人民共和国(下称“中国”)南京市签订:

 

This Voting Rights Proxy and Financial Supporting Agreement (the “Agreement”) is executed by and among the following Parties as of May 8, 2019 in Nanjing, the People’s Republic of China (“China” or the “PRC”):

 

甲方: 签字股东
   
Party A: The undersigned shareholders
   
地址: 见签字页所示地址
   
Address: See the address in the signature pages
   
乙方: 南京嵘科商务咨询服务有限公司
   
Party B: Nanjing Rongke Business Consulting Service Co., Ltd.
   
地址: 南京市高淳区东坝信息新材料产业园872
   
Address: 872 Dongba IT & New Material Industry Park, Gaochun District, Nanjing, Jiangsu Province, China
   
丙方: 江苏旸谷文化发展有限公司
   
Party C: Jiangsu Yanggu Culture Development Ltd.
   
地址: 南京市建邺区嘉陵江东街50号康缘智汇港二期41512
   
Address: Room 1512, Building 4, Kangyuan Zhihui Gang II, No.50 Jianglingjiang East Street, Jianye District, Nanjing, Jiangsu Province China

 

在本合同中, 甲方称“甲方”或“委托方”, 甲方、乙方和丙方以下各称“一方”, 合称“各方”。

 

In this Agreement, Party A shall be collectively referred to as “Party A” or the “Entrusting Party”; each of Party A, Party B and Party C shall be referred to as a “Party” respectively, and they shall be collectively referred to as the “Parties”.

 

1
Voting Rights Proxy and Financial Supporting Agreement

 

 

鉴于:

 

Whereas:

 

1. 甲方是丙方现时的股东, 合计持有丙方100%的股权.

 

Party A , the shareholders of Party C, collectively own 100% of the equity interest in Party C in record.

 

2. 委托方有意分别不可撤销地委托乙方或乙方指定的个人行使其在丙方中享有的表决权, 乙方有意接受该等委托。

 

The Entrusting Party is willing to unconditionally entrust Party B or Party B’s designee to vote on his or her behalf at the shareholders’ meeting of Party C, and Party B is willing to accept such proxy on behalf of Entrusting Party.

 

各方经友好协商, 兹一致协议如下:

 

Therefore, the Parties hereby agree as follows:

 

第一条 表决权委托

 

PROXY OF VOTING RIGHTS

 

1.1 委托方不可撤消地承诺, 其在本协议签订后将签署内容和格式如本协议附件的授权委托书(“授权委托书”), 分别授权乙方或乙方届时指定的人士(以下称“受托人”)代表其行使委托方作为丙方的股东, 依据丙方届时有效的章程所分别享有的权利, 包括但不限于(以下统称“委托权利”):

 

Entrusting Party hereby irrevocably covenants that, he/she shall execute the Power of Attorney (“POA”) set forth in Exhibit upon signing this Agreement and entrust Party B or Party B’s designee (“Designee”) to exercise all his or her rights as the shareholders of Party C under the Articles of Association of Party C, including without limitation to:

 

(1) 作为委托方的代理人, 根据丙方的章程提议召开和出席丙方的股东会会议;

 

propose to hold a shareholders’ meeting in accordance with the Articles of Association of Party C and attend shareholders’ meetings of Party C as the agent and attorney of Entrusting Party;

 

(2) 代表委托方对所有需要股东会讨论、决议的事项行使表决权, 包括但不限于指定和选举丙方的董事、总经理及其他应由股东任免的高级管理人员;

 

exercise all shareholder’s voting rights with respect to all matters to be discussed and voted in the shareholders’ meeting of Party C, including but not limited to designate and appoint the director, the chief executive officer and other senior management members of Party C;

 

2
Voting Rights Proxy and Financial Supporting Agreement

 

 

(3) 不时修订的中国法律法规规定的股东所应享有的其他表决权;以及

 

exercise other voting rights the shareholders are entitled to under the laws of China promulgated from time to time; and

 

(4) 不时修订的丙方章程项下的其他股东表决权。

 

exercise other voting rights the shareholders are entitled to under the Articles of Association of Party C amended from time to time;

 

乙方特此同意接受第1.1条所述该等委托。当收到乙方向委托方发出的更换受托人的书面通知, 委托方应立即指定乙方届时指定的其他人行使第1.1条的委托权利;除此外, 委托方不得撤销向受托人做出的委托和授权。

 

Party B hereby agrees to accept such proxy as set forth in Clause 1.1. Upon receipt of the written notice of change of Designee from Party B, the Entrusting Party shall immediately entrust such person to exercise the rights set forth in Clause 1.1. Except the aforesaid situation, the proxy shall be irrevocable and continuously valid.

 

1.2 对受托人行使上述委托权利所产生的任何法律后果, 委托方均予以认可并承担相应责任。

 

The Entrusting Party hereby acknowledges and ratify all the actions associated with the proxy conducted by the Designee.

 

1.3 委托方确认, 受托人在行使上述委托权利时, 无需事先征求委托方的意见。

 

The Parties hereby confirm that, Designee is entitled to exercise all proxy rights without the consent of Entrusting Party.

 

第二条 知情权

 

RIGHTS TO INFORMATION

 

2.1 为行使本协议下委托权利之目的, 受托人有权要求丙方提供相关信息, 查阅丙方相关资料, 丙方应对此予以充分配合。

 

For the purpose of this Agreement, the Designee is entitled to request relevant information of Party C and inspect the materials of Party C. Party C shall provide appropriate assistance to the Designee for his/her work.

 

3
Voting Rights Proxy and Financial Supporting Agreement

 

 

2.2 发生本协议项下的委托事项时, 委托方及丙方应及时通知乙方。

 

The Entrusting Party and Party C shall immediately inform Party B once the proxy matter happens.

 

第三条 委托权利的行使

 

PERFORMANCE OF PROXY RIGHTS

 

3.1 委托方将就受托人行使委托权利提供充分的协助, 包括在必要时及时签署及执行受托人已作出的股东会决议或其他相关的法律文件。

 

The Entrusting Party shall provide appropriate assistance to the Designee for the performance of proxy rights provided in this Agreement, including signing and executing the shareholders’ resolution and other relevant legal documents (if applicable) which have been confirmed by the Designee.

 

3.2 如果本协议有任何一条或多条规定根据任何法律或法规在任何方面被裁定为无效、不合法或不可执行, 本协议其余规定的有效性、合法性或可执行性不应因此在任何方面受到影响或损害。双方应通过诚意磋商, 争取以法律许可以及双方期望的最大限度内有效的规定取代那些无效、不合法或不可执行的规定, 而该等有效的规定所产生的经济效果应尽可能与那些无效、不合法或不能强制执行的规定所产生的经济效果相似。

 

In the event that one or several of the provisions of this Agreement are found to be invalid, illegal or unenforceable in any aspect in accordance with any laws or regulations, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected or compromised in any aspect. The Parties shall strive in good faith to replace such invalid, illegal or unenforceable provisions with effective provisions that accomplish to the greatest extent permitted by law and the intentions of the Parties, and the economic effect of such effective provisions shall be as close as possible to the economic effect of those invalid, illegal or unenforceable provisions.

 

第四条 财务支持

 

FINANCIAL SUPPORTING

 

考虑到委托方授予的上述投票权, 受托人同意安排向丙方提供有关于其业务的必要的资金(“财务支持”)。受托人同意如果因正常商业运作失败而丙方不能偿还其财务支持, 丙方将无返还义务。

 

In consideration of the foregoing grant of voting rights by the Entrusting Party, Party B agrees to arrange for funds to be provided as necessary to Party C in connection with the business (the “Financial Support”). Party B further agrees that should the business fails in the ordinary course of business, and as a result Party C is unable to repay the Financial Support, the Party C shall have no repayment obligation.

 

4
Voting Rights Proxy and Financial Supporting Agreement

 

 

第五条 声明与保证

 

REPRESENTATIONS AND WARRANTIES

 

5.1 委托方分别地声明与保证如下:

 

The Entrusting Party hereby represents and warrants to Party B as follows:

 

(1) 其拥有签订和履行本协议及授权委托书项下义务的完全权力和授权。本协议构成对其的合法的、具有约束力的义务, 并可根据本协议条款对其强制执行。

 

The Entrusting Party has full power and legal right to enter into this Agreement and perform his or her obligations under this Agreement and in executing the POA; This Agreement and the POA constitute legal, valid, binding and enforceable obligation of each Entrusting Party.

 

(2) 其已获得适当的授权签署、交付并履行本协议, 对本协议的签署和履行并不违反丙方公司文件的任何规定。

 

Each Entrusting Party has necessary authorization for the execution and delivery of this Agreement, and the execution, delivery and performance of this Agreement will not conflict with or violate any and all constitutional documents of Party C.

 

(3) 其是丙方的在册的合法股东, 除本协议及委托方、乙方与丙方签订的《股权质押协议》及《股权处分协议》所设定的权利外, 委托权利上不存在任何第三方权利或限制。根据本协议, 受托人可以根据丙方届时有效的章程完全、充分地行使委托权利。

 

Each Entrusting Party is the lawfully registered and beneficial owner of the shares of Party C, and none of the shares held by the Entrusting Party is subject to any encumbrance or other restrictions, except as otherwise provided under the Equity Pledge Agreement and Equity Option Agreement entered into by and between Party B, Party C and the Entrusting Party. According to this Agreement, the Designee has full power and legal rights to exercise the proxy rights according to the Articles of Association of Party C.

 

5.2 丙方兹声明与保证如下:

 

Party C hereby represents and warrants as follows:

 

(1) 其是根据其注册地法律适当注册并合法存续的有限责任公司, 具有独立法人资格;具有完全、独立的法律地位和法律能力签署、交付并履行本协议, 可以独立地作为一方诉讼主体。

 

Party C is a company legally registered and validly existing in accordance with the laws of China and has independent legal person status, and has full and independent civil and legal capacity to execute, deliver and perform this Agreement. It can sue and be sued as a separate entity;

 

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Voting Rights Proxy and Financial Supporting Agreement

 

 

(2) 其已采取必要的公司行为, 获得必要的授权, 并取得第三方和政府部门的同意及批准(若需)以签署和履行本协议;其对本协议的签署和履行并不违反法律法规的明确规定。

 

Party C has taken all necessary corporate actions, obtained all necessary authorization and the consent and approval from third parties and government agencies (if any) for the execution and performance of this Agreement. Party C’s execution and performance of this Agreement do not violate any explicit requirements under any law or regulation binding on Party C.

 

(3) 委托方是丙方的在册的合法股东。除本协议及委托方、乙方与丙方签订的《股权质押协议》及《股权处分协议》所设定的权利外, 委托权利上不存在任何第三方权利。根据本协议, 受托人可以根据丙方届时有效的章程完全、充分地行使委托权利。

 

Each Entrusting Party is the lawfully registered and beneficial owner of the shares of Party C, and none of the shares held by the Entrusting Party is subject to any encumbrance or other restrictions, except as otherwise provided under the Equity Pledge Agreement and Equity Option Agreement entered into by and between Party B, Party C and the Entrusting Party. According to this Agreement, the Designee has full power and legal rights to exercise the proxy rights according to the Articles of Association of Party C.

 

第六条 协议期限

 

TERM OF THIS AGREEMENT

 

6.1 本协议自各方签署及盖章之日起生效, 有效期二十(20)年;双方同意, 在本协议期满前, 乙方有权以书面通知的方式延长本协议的期限, 其他方必须无条件地同意该延期。

 

This Agreement shall become effective upon and from the date on which it is signed by the authorized representative and seal of each Party, with a term of twenty (20) years. The Parties agree that, this Agreement can be extended only if Party B gives its written consent of the extension of this Agreement before the expiration of this Agreement and the other Parties shall agree with this extension without reserve.

 

6.2 如委托方经乙方的事先同意转让了其持有的全部丙方的股权, 委托方在本协议下的义务与承诺将由受让方承担。

 

If the Entrusting Party has transferred all his or her equity interests in Party C subject to the prior consent of Party B, the obligations and warranties under this Agreement of the Entrusting Party shall be undertaken by the assignee.

 

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Voting Rights Proxy and Financial Supporting Agreement

 

 

第七条 通知

 

NOTICES

 

7.1 本合同项下要求或发出的所有通知和其他通信应通过专人递送、挂号邮寄、邮资预付或商业快递服务的方式发到该方下列地址。每一通知还应再以电子邮件送达。该等通知视为有效送达的日期按如下方式确定:

 

All notices and other communications required or permitted to be given pursuant to this Agreement shall be delivered personally or sent by registered mail, postage prepaid, by a commercial courier service to the address of such Party set forth below. A confirmation copy of each notice shall also be sent by email. The dates on which notices shall be deemed to have been effectively given shall be determined as follows:

 

通知如果是以专人递送、快递服务或挂号邮寄、邮资预付发出的, 则以于设定为通知的地址在签收或拒收之日为有效送达日。

 

Notices given by personal delivery, by courier service or by registered mail, postage prepaid, shall be deemed effectively given on the date of acceptance or refusal at the address specified for notices.

 

7.2 为通知的目的, 各方地址如下:

 

For the purpose of notices, the addresses of the Parties are as follows:

 

甲方: 签字股东
   
Party A: The undersigned shareholders
   
地址: 见签字页所示地址
   
Address: See the address in the signature pages
   
乙方: 南京嵘科商务咨询服务有限公司
   
Party B: Nanjing Rongke Business Consulting Service Co., Ltd.
   
地址: 南京市高淳区东坝信息新材料产业园872
   
Address: 872 Dongba IT & New Material Industry Park, Gaochun District, Nanjing, Jiangsu Province, China
   
收件人Attn: 邵毅 Shao Yi

 

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Voting Rights Proxy and Financial Supporting Agreement

 

 

丙方: 江苏旸谷文化发展有限公司
   
Party C: Jiangsu Yanggu Culture Development Ltd.
   
地址: 南京市建邺区嘉陵江东街50号康缘智汇港二期41512
   
Address: Room 1512, Building 4, Kangyuan Zhihui Gang II, No.50 Jianglingjiang East Street, Jianye District, Nanjing, Jiangsu Province China
   
收件人Attn: 邵毅 Shao Yi

 

7.3 任何一方变更接收通知的地址或联系人的, 应按本条规定给另一方发出通知。

 

If any Party change its address for notices or its contact person, a notice shall be delivered to the other Party in accordance with the terms hereof.

 

第八条 保密义务

 

CONFIDENTIALITY

 

各方承认及确定有关本合同、本合同内容, 以及彼此就准备或履行本合同而交换的任何口头或书面资料均被视为保密信息。各方应当对所有该等保密信息予以保密, 而在未得到另一方书面同意前, 不得向任何第三者披露任何保密信息, 下列信息除外:(a)公众人士知悉或将会知悉的任何信息(并非由接受保密信息之一方擅自向公众披露);(b)根据适用法律法规、股票交易规则、或政府部门或法院的命令而所需披露之任何信息;或(c)由任何一方就本合同所述交易而需向其股东、投资者、法律或财务顾问披露之信息, 而该股东、法律或财务顾问亦需遵守与本条款相类似之保密责任。如任何一方工作人员或聘请机构的泄密均视为该方的泄密, 需依本合同承担违约责任。无论本合同以任何理由终止, 本条款仍然生效。

 

The Parties acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement are regarded as confidential information. Each Party shall maintain confidentiality of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any relevant confidential information to any third parties, except for the information that: (a) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or (c) is required to be disclosed by any Party to its shareholders, investors, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such shareholders, investors, legal counsels or financial advisors shall be bound by the confidentiality obligations similar to those set forth in this Section. Disclosure of any confidential information by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement. This Section shall survive the termination of this Agreement for any reason.

 

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Voting Rights Proxy and Financial Supporting Agreement

 

 

第九条 违约责任

 

LIABILITY FOR BREACH OF AGREEMENT

 

9.1 各方同意并确认, 如任一方(“违约方”)违反本协议项下所作的任何一项约定, 或未履行或迟延履行本协议项下的任何一项义务, 即构成本协议项下的违约(“违约”), 其他未违约方(“守约方”)的任一方有权要求违约方在合理期限内补正或采取补救措施。如违约方在合理期限内或在另一方书面通知违约方并提出补正要求后十(10)天内仍未补正或采取补救措施的, 则

 

The Parties agree and confirm that, if either Party is in breach of any provisions herein or fails to perform its obligations hereunder, such breach or failure shall constitute a default under this Agreement, which shall entitle the non-defaulting Party to request the defaulting Party to rectify or remedy such default with a reasonable period of time. If the defaulting Party fails to rectify or remedy such default within the reasonable period of time or within 10 days of non-defaulting Party’s written notice requesting for such rectification or remedy, then the non-defaulting Party shall be entitled to elect the following remedial actions:

 

(1) 若任何委托方或丙方为违约方, 乙方有权终止本协议并要求违约方给予损害赔偿;

 

If the defaulting Party is any Entrusting Party or Party C, then Party B has the right to terminate this Agreement and request the defaulting Party to fully compensate its losses and damages;

 

(2) 若乙方为违约方, 守约方有权要求违约方给予损害赔偿, 但除非法律另有规定, 否则其在任何情况均无任何权利终止或解除本协议。

 

If the defaulting Party is Party B, then the non-defaulting Party has the right to request the defaulting Party to fully compensate its losses and damages, but in no circumstance shall the non-defaulting Party early terminate this Agreement unless the applicable law provides otherwise.

 

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Voting Rights Proxy and Financial Supporting Agreement

 

 

9.2 尽管有本协议其它规定, 本条规定的效力不受本协议中止或者终止的影响。

 

Notwithstanding otherwise provided under this Agreement, the validity of this Section shall not be affect by the suspension or termination of this Agreement.

 

第十条 法律适用和争议解决

 

GOVERNING LAW AND DISPUTE RESOLUTION

 

10.1 本协议的订立、效力、解释、履行、修改和终止以及争议的解决均适用中国法律。

 

The execution, effectiveness, interpretation, performance, amendment, termination and dispute resolution shall be governed by the law of the People’s Republic of China.

 

10.2 一切因执行本协议或与本协议有关的争执, 应由双方通过友好方式协商解决。如经协商不能得到解决时, 应提交位于南京的中国国际经济贸易仲裁委员会江苏仲裁中心, 根据提交仲裁时中国国际经济贸易仲裁委员会江苏仲裁中心的仲裁规则进行仲裁, 仲裁地点在南京, 仲裁语言为中文。仲裁裁决是终局性的, 对各方均由约束力。

 

In the event of any dispute with respect to this Agreement, the Parties shall first resolve the dispute through friendly negotiations. In the event the Parties fail to reach an agreement on the dispute, either Party may submit the relevant dispute to the Jiangsu Branch of China International Economic and Trade Arbitration Commission for arbitration, in accordance with its Arbitration Rules. The arbitration shall be conducted in Nanjing, and the language used in arbitration shall be Chinese. The arbitration award shall be final and binding on all Parties.

 

第十一条 协议的转让

 

ASSIGNMENT

 

11.1 未经乙方的事先书面同意, 其他方均不得向任何第三方转让其于本协议下的任何权利及/或义务;委托方、丙方在此同意, 乙方有权在书面通知委托方及丙方后, 将其在本协议下的任何权利及/或义务转让给任何第三方。

 

Without Party B’s prior written consent, other Parties shall not assign its rights and obligations under this Agreement to any third party. Entrusting Party and Party C agrees that Party B may assign its obligations and rights under this Agreement to any third party upon a prior written notice to Entrusting Party and Party C.

 

11.2 本协议对各方的合法继受人均具有约束力。

 

This Agreement shall be binding on the legal successors of the Parties.

 

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Voting Rights Proxy and Financial Supporting Agreement

 

 

第十二条 其他事项

 

MISCELLANEOUS

 

12.1 本合同规定的权利和救济是累积的, 并不排斥法律规定的其他权利或者救济。

 

The rights and remedies provided for in this Agreement shall be accumulative and shall not affect any other rights and remedies stipulated at law.

 

12.2 任何一方可以对本合同的条款和条件作出弃权, 但必须经书面作出并经各方签字。一方在某种情况下就其他方的违约所作的弃权不应被视为该方在其他情况下就类似的违约已经对其他方作出弃权。

 

Any Party may waive the terms and conditions of this Agreement, provided that such a waiver must be provided in writing and shall require the signatures of the Parties. No waiver by any Party in certain circumstances with respect to a breach by other Parties shall operate as a waiver by such a Party with respect to any similar breach in other circumstances.

 

12.3 本协议各条的标题仅为索引而设, 在任何情况下, 该等标题不得用于或影响对本协议条文的解释。

 

The headings of this Agreement are for convenience only, and shall not be used to interpret, explain or otherwise affect the meanings of the provisions of this Agreement.

 

12.4 本协议的任何修改、补充必须以书面形式进行, 并由本协议各方适当签署后方能生效。

 

Any amendment, change and supplement to this Agreement shall require the execution of a written agreement by all of the Parties.

 

12.5 本协议采用中文、英文两种文本, 中文文本与英文文本具有同等法律效力, 中文文本与英文文本不一致的, 以中文文本为准。正本一式二十一(21)份, 本协议之各方当事人各执壹(1)份。

 

This Agreement shall be signed in Chinese and English language bearing the same legal effect. In the event of any inconsistency between the Chinese and English language, the Chinese version of this Agreement shall prevail. This Agreement shall have twenty-one (21) counterparts, with each party holding one (1) original. All counterparts shall be given the same legal effect.

 

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Voting Rights Proxy and Financial Supporting Agreement

 

 

[签字页]

 

[Signature Pages]

 

有鉴于此, 各方已使得经其授权的代表于文首所述日期签署了本股东表决权委托及财务支持协议, 以昭信守。

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Voting Rights Proxy and Financial Supporting Agreement as of the date first above written.

 

甲方:    
     
Party A:    
     
持股比例:    
     
Shareholding Ratio:    
     
地址:    
     
Address:    
     
签字:    

 

By:    

 

  
Voting Rights Proxy and Financial Supporting Agreement

 

 

[签字页]

 

[Signature Page]

 

有鉴于此, 各方已使得经其授权的代表于文首所述日期签署了本股东表决权委托及财务支持协议, 以昭信守。

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Voting Rights Proxy and Financial Supporting Agreement as of the date first above written.

 

乙方: 南京嵘科商务咨询服务有限公司 (盖章)  
     
Party B: Nanjing Rongke Business Consulting Service Co., Ltd. (seal)  
     
姓名: 邵毅  
     
Name: Shao Yi  
     
职务: 授权代表人  
     
Title: Authorized Representative  
     
签字:    
     
By: /s/ Shao Yi  

 

  
Voting Rights Proxy and Financial Supporting Agreement

 

 

[签字页]

 

[Signature Page]

 

有鉴于此, 各方已使得经其授权的代表于文首所述日期签署了本股东表决权委托及财务支持协议, 以昭信守。

 

IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this Voting Rights Proxy and Financial Supporting Agreement as of the date first above written.

 

丙方: 江苏旸谷文化发展有限公司(盖章)  
     
Party C: Jiangsu Yanggu Culture Development Ltd. (seal)  
     
姓名: 邵毅  
     
Name: Shao Yi  
     
职务: 授权代表人  
     
Title: Authorized Representative  
     
签字:    
     
By: /s/Shao Yi  

 

  
Voting Rights Proxy and Financial Supporting Agreement

 

 

附件

 

Exhibit

 

授权委托书

 

Power of Attorney

 

签字股东系合计拥有江苏旸谷文化发展有限公司100%的股权(“本公司股权”)的股东, 就本公司股权, 特此不可撤销地授权南京嵘科商务咨询服务有限公司(“受托人”)在本授权委托书的有效期内行使如下权利:

 

The undersigned in the signature pages, holders of 100% of the entire registered capital in Jiangsu Yanggu Culture Development Ltd. (“Our Company’s Shareholding”), hereby irrevocably authorize Nanjing Rongke Business Consulting Service Co., Ltd. (“Designee”) to exercise the following rights relating to Our Company’s Shareholding during the term of this Power of Attorney:

 

授权受托人作为本公司唯一的排他的代理人就有关本公司股权的事宜全权代表本公司行使包括但不限于如下的权利:1)参加江苏旸谷文化发展有限公司的股东会;2)行使按照法律和江苏旸谷文化发展有限公司章程规定本公司所享有的全部股东权和股东表决权, 包括但不限于出售或转让或质押或处置本公司股权的全部或任何一部分;以及3)作为本公司的授权代表指定和任命江苏旸谷文化发展有限公司法定代表人(董事长)、董事、监事、总经理以及其他高级管理人员等。

 

The Designee is hereby authorized to act on behalf of our company as my exclusive agent and attorney with respect to all matters concerning Our Company’s Shareholding, including without limitation to: 1) attend shareholders’ meetings of Jiangsu Yanggu Culture Development Ltd.; 2) exercise all the shareholder’s rights and shareholder’s voting rights our company is entitled to under the laws of China and Articles of Association of Jiangsu Yanggu Culture Development Ltd., including but not limited to the sale or transfer or pledge or disposition of Our Company’s Shareholding in part or in whole; and 3) designate and appoint on behalf of our company the legal representative (chairperson), the director, the supervisor, the chief executive officer and other senior management members of Jiangsu Yanggu Culture Development Ltd..

 

受托人将有权在授权范围内代表本公司签署股权处分合同(本公司应要求作为合同方)中约定的转让合同, 如期履行本公司作为合同一方的与本授权委托书同日签署的股权质押合同和股权处分合同, 该权利的行使将不对本授权形成任何限制。

 

Without limiting the generality of the powers granted hereunder, the Designee shall have the power and authority under this Power of Attorney to execute the Transfer Contracts stipulated in Equity Option Agreement, to which our company is required to be a party, on behalf of our company, and to effect the terms of the Equity Pledge Agreement and Equity Option Agreement, both dated the date hereof, to which our company is a party.

 

  
Voting Rights Proxy and Financial Supporting Agreement

 

 

受托人就本公司股权的一切行为均视为本公司的行为, 签署的一切文件均视为本公司签署, 本公司会予以承认。

 

All the actions associated with Our Company’s Shareholding conducted by the Designee shall be deemed as our company’s own actions, and all the documents related to Our Company’s Shareholding executed by the Designee shall be deemed to be executed by our company. Our company hereby acknowledges and ratifies those actions and/or documents by the Designee.

 

除非南京嵘科商务咨询服务有限公司对本公司发出要求更换受托人的指令, 在本公司为江苏旸谷文化发展有限公司的股东期间, 本授权委托书不可撤销并持续有效, 自授权委托书签署之日起算。

 

Unless Nanjing Rongke Business Consulting Service Co., Ltd. issues an instruction to our company to change the Designee, this Power of Attorney is coupled with an interest and shall be irrevocable and continuously valid from the date of execution of this Power of Attorney, so long as our company is a shareholder of Jiangsu Yanggu Culture Development Ltd..

 

本授权委托书期间, 本公司特此放弃已经通过本授权委托书授权给受托人的与本公司股权有关的所有权利, 不再自行行使该等权利。

 

During the term of this Power of Attorney, our company hereby waive all the rights associated with Our Company’s Shareholding, which have been authorized to the Designee through this Power of Attorney, and shall not exercise such rights by our company.

 

本授权委托书以中文和英文书就, 中英文版本如有冲突, 应以中文版为准。

 

This Power of Attorney is written in Chinese and English; in case there is any conflict between the Chinese version and the English version, the Chinese version shall prevail.

 

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[签字页]

 

[Signature Pages]

 

委托人:    
     
Authorizer:    
     
持股比例:    
     
Shareholding Ratio:    
     
地址:    
     
Address:    
     
签字:    

 

By:    
     
日期: 201958  
     
Date: May 8, 2019  

 

 

Voting Rights Proxy and Financial Supporting Agreement

 

Exhibit 10.5

 

EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of this ____day of ____, 2019 (the “Effective Date”), by and between Oriental Culture Holding Ltd., a Cayman Islands company (the “Company”), and ______ (the “Executive”).

 

WITNESSETH:

 

WHEREAS, the parties desire to enter into this Agreement setting forth the terms and conditions of the employment relationship between the Executive and the Company.

 

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, the parties hereto agree as follows:

 

1. EMPLOYMENT.

 

1.1 Agreement to Employ. The Company hereby agrees to employ Executive, and Executive hereby agrees to serve, subject to the provisions of this Agreement, as an officer and employee of the Company.

 

1.2 Duties and Schedule. Executive shall serve as the Company’s ______ (“ ”). The responsibilities of the Executive shall be subject to the bylaws of the Company and determined by the Board of Directors of the Company (the “Board”). The Executive shall report directly to the Board and shall have such responsibilities as designated by the Board of the Company to the extent that such responsibilities are not inconsistent with all applicable laws, regulations and rules. Executive shall devote his best efforts and all of his business time to his position with the Company.

 

2. TERM OF EMPLOYMENT. Unless Executive’s employment shall sooner terminate pursuant to Section 4, the Company shall employ Executive for a one-year term commencing on the Effective Date (the “Term”), which Term shall be renewable upon mutual agreement of the Company and the Executive, as approved by the Board.

 

3. COMPENSATION.

 

3.1  Salary. Executive’s salary during the Term shall be RMB_____ per year (the “Salary”), payable monthly.

 

3.2 Bonus. At the sole discretion of the Board, or any committee duly designated by the Board and authorized to act thereto, the Executive shall be eligible for an annual cash bonus.

 

3.3 Vacation. Executive shall be entitled to __ days of paid vacation per year. In the event that Executive remains employed by the Company for 3 years or more, Executive shall be entitled to ___ days of paid vacation.

 

3.4 Business Expenses. Executive shall be reimbursed by the Company for all ordinary and necessary expenses incurred by Executive; provided that they are incurred and approved in writing in accordance with the Company’s expense policy.

 

3.5 Benefits. During the Term, Executive shall be allowed to participate, on the same basis generally as other employees of the Company, in all general employee benefit plans and programs, including improvements or modifications of the same, which may exist as of the Effective Date or thereafter and which are made available by the Company to all or substantially all of its employees. Such benefits, plans, and programs may include, without limitation, any health, and dental insurance, if and when instituted. Any benefit plan currently existing or instituted by the Company after the Effective Date may be altered, change or discontinued by the Company at its sole discretion and at any time without obligation of any nature to Executive. Except as specifically provided herein, nothing in this Agreement is to be construed or interpreted to increase or alter in any way the rights, participation, coverage, or benefits under such benefit plans or programs to other than those provided to other employees pursuant to the terms and conditions of such benefit plans and programs.  

 

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4. TERMINATION.

 

4.1 Death. This Agreement shall terminate immediately upon the death of Executive, and Executive’s estate or Executive’s legal representative, as the case may be, shall be entitled to Executive’s accrued and unpaid Salary as of the date of Executive’s death, plus all other compensation and benefits that were vested through the date of Executive’s death.

 

4.2 Disability. In the event of Executive’s Disability, this Agreement shall terminate and Executive shall be entitled to (a) accrued and unpaid Salary and vacation through the first date that a Disability is determined; and (b) all other compensation and benefits that were vested through the first date that a Disability has been determined. “Disability” means the good faith determination of the Board that Executive has become so physically or mentally incapacitated or disabled as to be unable to satisfactorily perform his duties hereunder for a period of ninety (90) consecutive calendar days or for one- hundred twenty (120) days in any three-hundred sixty (360) day period, such determination based upon a certificate as to such physical or mental disability issued by a licensed physician and/or psychiatrist (as the case may be) mutually agreed upon by Executive and the Company.

 

4.3 Termination by Company for Cause.  The Company may terminate the Executive for Cause and such termination shall take effect upon the receipt by Executive of the Notice of Termination. Upon the effective date of the termination for Cause, Executive shall be solely entitled to accrued and unpaid Salary through such effective date. Cause means: (i) engaging in any act, omission or misconduct that is injurious to the Company or an affiliate; (ii) gross negligence or willful misconduct in connection with the performance of duties; (iii) conviction of a criminal offense (other than minor traffic offenses); (iv) fraud, embezzlement or misappropriation of funds or property of the Company or an affiliate; (v) material breach of any term of any employment or other services, confidentiality, intellectual property or non-competition agreements, if any, between the Executive and the Company or an affiliate; (vi) the entry of an order duly issued by any regulatory agency (including federal, state and local regulatory agencies and self-regulatory bodies) having jurisdiction over the Company or an affiliate requiring the removal of the Executive from any office held with the Company or prohibiting the Executive from participating in the business or affairs of the Company or any affiliate; or (vii) the revocation or threatened revocation of any of the Company’s or an affiliate’s government licenses, permits or approvals, which is primarily due to the Executive’s action or inaction and such revocation or threatened revocation would be alleviated or mitigated in any material respect by the termination of the Executive’s employment or services with the Company or an affiliate.

 

 4.4 Voluntary Termination by Executive. The Executive may voluntarily terminate his employment for any reason and such termination shall take effect 30 days after the receipt by Company of the Notice of Termination. Upon the effective date of such termination, Executive shall be entitled to (a) accrued and unpaid Salary and vacation through such termination date; and (b) all other compensation and benefits that were vested through such termination date.  In the event Executive is terminated without notice, it shall be deemed a termination by the Company for Cause.

 

4.5 Notice of Termination. Any termination of the employment by the Company or the Executive shall be communicated by a notice in accordance with Section 8.4 of this Agreement (the “Notice of Termination”).   Such notice shall (a) indicate the specific termination provision in this Agreement relied upon and (b) if the termination is for Cause, the date on which the Executive’s employment is to be terminated.

 

4.6 Severance. The Executive shall not be entitled to severance payments upon any termination provided in Section 4 herein.

 

5. EMPLOYEE’S REPRESENTATION. The Executive represents and warrants to the Company that: (a) he is subject to no contractual, fiduciary or other obligation which may affect the performance of his duties under this Agreement; (b) he has terminated, in accordance with their terms, any contractual obligation which may affect his performance under this Agreement; and (c) his employment with the Company will not require him to use or disclose proprietary or confidential information of any other person or entity.

 

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6. CONFIDENTIAL INFORMATION Except as permitted or directed by the Board of Directors of the Company in writing, during the time the Executive is employed by the Company or at any time thereafter, the Executive shall not use for his personal purposes nor divulge, furnish, or make accessible to anyone or use in any way (other than in the ordinary course of the business of the Company) any confidential or secret information or knowledge of the Company, whether developed by himself or by others. Such confidential and/or secret information encompassed by this Section 6 includes, but is not limited to, the Company’s customer and supplier lists, business plans, software, systems, and financial, marketing, and personnel information. The Executive agrees to refrain from any acts or omissions that would reduce the value of any confidential or secret knowledge or information to the Company, both during his employment hereunder and at any time after the termination of his employment. The Executive’s obligations of confidentiality under this Section 6 shall not apply to any knowledge or information that is now published publicly or that subsequently becomes generally publicly known, other than as a direct or indirect result of a breach of this Agreement by the Executive.

 

7. NON-COMPETITION: NON-SOLICITATION; INVENTIONS.

 

7.1 Non-Competition.  During the employment of the Executive under this Agreement and for a period of six (6) months after termination of such employment, the Executive shall not at any time compete on his own behalf, or on behalf of any other person or entity, with the Company or any of its affiliates within all territories in which the Company does business with respect to the business of the Company or any of its affiliates as such business shall be conducted on the date hereof or during the employment of the Executive under this Agreement. The ownership by the Executive of not more than 5% of a corporation, partnership or other enterprise shall not constitute a violation hereof.

 

7.2 Non-Solicitation.  During the employment of the Executive under this Agreement and thereafter Executive shall not at any time (i) solicit or induce, on his own behalf or on behalf of any other person or entity, any employee of the Company or any of its affiliates to leave the employ of the Company or any of its affiliates; or (ii) solicit or induce, on his own behalf or on behalf of any other person or entity, any customer or Prospective Customer of the Company or any of their respective affiliates to reduce its business with the Company or any of its affiliates. For the purposes of this Agreement, “Prospective Customer” shall mean any individual, corporation, trust or other business entity which has either (a) entered into a nondisclosure agreement with the Company or any Company subsidiary or affiliate or (b) has within the preceding 12 months received a currently pending and not rejected written proposal in reasonable detail from the Company or any of the Company’s subsidiary or affiliate.

 

7.3 Inventions and Patents. The Company shall be entitled to the sole benefit and exclusive ownership of any inventions or improvements in products, processes, or other things that may be made or discovered by Executive while he is in the service of the Company, and all patents for the same. During the Term, Executive shall do all acts necessary or required by the Company to give effect to this section and, following the Term, Executive shall do all acts reasonably necessary or required by the Company to give effect to this section.  In all cases, the Company shall pay all costs and fees associated with such acts by Executive.

 

7.4 Return of Property.  The Executive agrees that all property in the Executive’s possession that he obtains or is assigned in the course of his employment with the Company, including, without limitation, all documents, reports, manuals, memoranda, customer lists, credit cards, keys, access cards, and all other property relating in any way to the business of the Company, is the exclusive property of the Company, even if the Executive authored, created, or assisted in authoring or creating such property. The Executive shall return to the Company all such property immediately upon termination of employment or at such earlier time as the Company may request.

 

7.5 Court Ordered Revisions. If any portion of this Section 7 is found by a court of competent jurisdiction to be invalid or unenforceable, but would be valid and enforceable if modified, this Section 7 shall apply with such modifications necessary to make this Section 7 valid and enforceable.  Any portion of this Section 7 not required to be so modified shall remain in full force and effect and not be affected thereby.

 

7.6 Specific Performance. The Executive acknowledges that the remedy at law for any breach of any of the provisions of Section 7 will be inadequate, and that the Company shall be entitled, in addition to any remedy at law or in equity, to preliminary and permanent injunctive relief and specific performance.

 

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8. MISCELLANEOUS.

 

8.1 Indemnification.  The Company and each of its subsidiaries shall, to the maximum extent provided under applicable law, indemnify and hold Executive harmless from and against any expenses, including reasonable attorney’s fees, judgments, fines, settlements and other legally permissible amounts (“Losses”), incurred in connection with any proceeding arising out of, or related to, Executive’s employment by the Company, other than any such Losses incurred as a result of Executive’s negligence or willful misconduct.  The Company shall, or shall cause a subsidiary thereof to, advance to Executive any expenses, including attorney’s fees and costs of settlement, incurred in defending any such proceeding to the maximum extent permitted by applicable law.  Such costs and expenses incurred by Executive in defense of any such proceeding shall be paid by the Company or applicable subsidiary in advance of the final disposition of such proceeding promptly upon receipt by the Company of (a) written request for payment; (b) appropriate documentation evidencing the incurrence, amount and nature of the costs and expenses for which payment is being sought; and (c) an undertaking adequate under applicable law made by or on behalf of Executive to repay the amounts so advanced if it shall ultimately be determined pursuant to any non-appealable judgment or settlement that Executive is not entitled to be indemnified by the Company or any subsidiary thereof.  The Company will provide Executive with coverage under all directors and officers liability insurance policies that it has in effect during the Term, with no deductible to Executive.

 

 8.2 Applicable Law. Except as may be otherwise provided herein, this Agreement shall be governed by and construed in accordance with the laws of the Cayman Islands, applied without reference to principles of conflict of laws. Each party hereby irrevocably submits to the exclusive jurisdiction of the courts sitting in Cayman Islands.

 

8.3 Amendments. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors or legal representatives.

 

8.4 Notices.  All notices and other communications hereunder shall be in writing and shall be given by hand-delivery to the other party, by an international mail courier, or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

 

If to the Executive:

 

________________________

________________________

 

 

If to the Company:

________________________

________________________

Attn:  Board of Directors

 

Or to such other address as either party shall have furnished to the other in writing in accordance herewith.  Notices and communications shall be effective when delivered to the addressee.

 

8.5 Withholding. The Company may withhold from any amounts payable under the Agreement, such federal, state and local income, unemployment, social security and similar employment related taxes and similar employment related withholdings as shall be required to be withheld pursuant to any applicable law or regulation.

 

8.6 Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement and any such provision which is not valid or enforceable in whole shall be enforced to the maximum extent permitted by law.

 

8.7 Captions. The captions of this Agreement are not part of the provisions and shall have no force or effect.

 

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8.8 Entire Agreement. This Agreement contains the entire agreement among the parties concerning the subject matter hereof and supersedes all prior agreements, understandings, discussions, negotiations and undertakings, whether written or oral, between the parties with respect thereto.

 

8.9 Survival. The respective rights and obligations of the parties hereunder shall survive any termination of this Agreement or the Executive’s employment hereunder to the extent necessary to the intended preservation of such rights and obligations.

 

8.10 Waiver. Either Party's failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions, or prevent that party thereafter from enforcing each and every other provision of this Agreement.

 

8.11 Successors.  This Agreement is personal to Executive and, without the prior express written consent of the Company, shall not be assignable by Executive. This Agreement shall inure to the benefit of and be enforceable by Executive’s estate, heirs, beneficiaries, and/or legal representatives. This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.

 

8.12 Joint Efforts/Counterparts. Preparation of this Agreement shall be deemed to be the joint effort of the parties hereto and shall not be construed more severely against any party.  This Agreement may be signed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

 

8.13 Representation by Counsel.   Each Party hereby represents that it has had the opportunity to be represented by legal counsel of its choice in connection with the negotiation and execution of this Agreement.

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.

 

 

EXECUTIVE: 

 

ORIENTAL CULTURE HOLDING LTD 

     
     
     
/s/                                  /s/                               

 

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Exhibit 10.6

 

INDEMNIFICATION AGREEMENT

 

This Indemnification Agreement (this “Agreement”), dated as of ______________, is by and between Oriental Culture Holding LTD, a company incorporated under the laws of the Cayman Islands (the “Company”) and ______________ (the “Indemnitee”).

 

RECITALS

 

WHEREAS, Indemnitee is a director or officer of the Company and in such capacity renders valuable services to the Company;

 

WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other claims being asserted against directors and officers of public companies;

 

WHEREAS, the board of directors of the Company (the “Board”) has determined that enhancing the ability of the Company to retain and attract as directors and officers the most capable persons is in the best interests of the Company and that the Company therefore should seek to assure such persons that indemnification is available; and

 

WHEREAS, in recognition of the need to provide Indemnitee with substantial protection against personal liability, in order to procure Indemnitee’s continued service as a director or officer of the Company and to enhance Indemnitee’s ability to serve the Company in an effective manner, and in order to provide such protection pursuant to express contract rights (intended to be enforceable irrespective of, among other things, any amendment to the Company’s Certificate of Incorporation or Memorandum and Articles of Association (collectively, the “Constituent Documents”), any change in the composition of the Board or any change in control or business combination transaction relating to the Company), the Company wishes to provide in this Agreement for the indemnification of, and the advancement of Expenses (as defined in Section 1 below) to, Indemnitee as set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the foregoing and the Indemnitee’s agreement to continue to provide services to the Company, the parties agree as follows:

 

AGREEMENT

 

1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

 

(a) “Beneficial Owner” has the meaning given to the term “beneficial owner” in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

(b) “Change in Control” means the occurrence after the date of this Agreement of any of the following events:

 

(i) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing 51% or more of the Company’s then outstanding Voting Securities;

 

(ii) the consummation of a reorganization, merger or consolidation, unless immediately following such reorganization, merger or consolidation, all of the Beneficial Owners of the Voting Securities of the Company immediately prior to such transaction beneficially own, directly or indirectly, more than 51% of the combined voting power of the outstanding Voting Securities of the entity resulting from such transaction;

 

 

 

(iii) during any period of two consecutive years, not including any period prior to the execution of this Agreement, individuals who at the beginning of such period constituted the Board (including for this purpose any new directors whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved) cease for any reason to constitute at least a majority of the Board; or

 

(iv) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.

 

(c) “Claim” means:

 

(i) any threatened, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal, administrative, arbitrative, investigative or other, and whether made pursuant to federal, state or other law; or

 

(ii) any inquiry, hearing or investigation that the Indemnitee determines might lead to the institution of any such action, suit, proceeding or alternative dispute resolution mechanism.

 

(d) “Disinterested Director” means a director of the Company who is not and was not a party to the Claim in respect of which indemnification is sought by Indemnitee.

 

(e) “Expenses” means any and all expenses, including attorneys’ and experts’ fees, court costs, transcript costs, travel expenses, duplicating, printing and binding costs, telephone charges, and all other costs and expenses incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness or participate in, any Claim. Expenses also shall include (i) Expenses incurred in connection with any appeal resulting from any Claim, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (ii) for purposes of Section 4 only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.

 

(f) “Expense Advance” means any payment of Expenses advanced to Indemnitee by the Company pursuant to Section 3 or Section 4 hereof.

 

(g) “Indemnifiable Event” means any event or occurrence, whether occurring before, on or after the date of this Agreement, related to Indemnitee’s services as a director or officer of the Company or any subsidiary of the Company.

 

(h) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently performs, nor in the past five years has performed, services for either: (i) the Company or Indemnitee (other than in connection with matters concerning Indemnitee under this Agreement or of other indemnitees under similar agreements) or (ii) any other party to the Claim giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

 

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(i) “Losses” means any and all Expenses, damages, losses, liabilities, judgments, fines, penalties (whether civil, criminal or other), ERISA excise taxes, amounts paid or payable in settlement, including any interest, assessments, any federal, state, local or foreign taxes imposed as a result of the actual or deemed receipt of any payments under this Agreement and all other charges paid or payable in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness or participate in, any Claim.

 

(j) “Person” means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, governmental entity or other entity and includes the meaning set forth in Sections 13(d) and 14(d) of the Exchange Act.

 

(k) “Standard of Conduct Determination” shall have the meaning ascribed to it in Section 8(b) below.

 

(l) “Voting Securities” means any securities of the Company that vote generally in the election of directors.

 

2. Indemnification. Subject to Section 8 and Section 9 of this Agreement, the Company shall indemnify Indemnitee, to the fullest extent permitted by the laws of the Cayman Islands in effect on the date hereof, or as such laws may from time to time hereafter be amended to increase the scope of such permitted indemnification, against any and all Losses if Indemnitee was or is or becomes a party to or participant in, or is threatened to be made a party to or participant in, any Claim by reason of or arising in part out of an Indemnifiable Event, including, without limitation, Claims brought by or in the right of the Company, Claims brought by third parties, and Claims in which the Indemnitee is solely a witness.

 

3. Advancement of Expenses. Indemnitee shall have the right to advancement by the Company, prior to the final disposition of any Claim by final adjudication to which there are no further rights of appeal, of any and all Expenses actually and reasonably paid or incurred by Indemnitee in connection with any Claim arising out of an Indemnifiable Event at the written request of Indemnitee. Indemnitee shall set forth in such request reasonable evidence that such Expenses have been paid or incurred by Indemnitee. Indemnitee’s right to such advancement is not subject to the satisfaction of any standard of conduct. Without limiting the generality or effect of the foregoing, within thirty days after any request by Indemnitee, the Company shall, in accordance with such request, (a) pay such Expenses on behalf of Indemnitee, (b) advance to Indemnitee funds in an amount sufficient to pay such Expenses, or (c) reimburse Indemnitee for such Expenses. In connection with any request for Expense Advances, Indemnitee shall not be required to provide any documentation or information to the extent that the provision thereof would undermine or otherwise jeopardize attorney-client privilege. The Company’s obligation to pay Expense Advances to Indemnitee is contingent upon Indemnitee’s execution and delivery to the Company of an undertaking to repay any amounts paid, advanced, or reimbursed by the Company for such Expenses to the extent that it is ultimately determined, following the final disposition of such Claim, that Indemnitee is not entitled to indemnification hereunder. Indemnitee’s obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon.

 

4. Indemnification for Expenses in Enforcing Rights. To the fullest extent allowable under applicable law, the Company shall also indemnify Indemnitee against, and, if requested by Indemnitee, shall advance to Indemnitee subject to and in accordance with Section 3, any Expenses actually and reasonably paid or incurred by Indemnitee in connection with any action or proceeding by Indemnitee for (a) indemnification or reimbursement or advance payment of Expenses by the Company under any provision of this Agreement, or under any other agreement or provision of the Constituent Documents now or hereafter in effect relating to Claims relating to Indemnifiable Events, and/or (b) recovery under any directors’ and officers’ liability insurance policies maintained by the Company. However, in the event that Indemnitee is ultimately determined not to be entitled to such indemnification or insurance recovery, as the case may be, then all amounts advanced under this Section 4 shall be repaid.

 

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5. Partial Indemnity. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for a portion of any Losses in respect of a Claim related to an Indemnifiable Event but not for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.

 

6. Notification and Defense of Claims.

 

(a) Notification of Claims. Indemnitee shall notify the Company in writing as soon as practicable of any Claim which could relate to an Indemnifiable Event or for which Indemnitee could seek Expense Advances, including a brief description (based upon information then available to Indemnitee) of the nature of, and the facts underlying, such Claim. The failure by Indemnitee to timely notify the Company hereunder shall not relieve the Company from any liability hereunder unless the Company’s ability to participate in the defense of such claim was materially and adversely affected by such failure. If at the time of the receipt of such notice, the Company has directors’ and officers’ liability insurance in effect under which coverage for Claims related to Indemnifiable Events is potentially available, the Company shall give prompt written notice to the applicable insurers in accordance with the procedures set forth in the applicable policies. The Company shall provide to Indemnitee a copy of such notice delivered to the applicable insurers, and copies of all subsequent correspondence between the Company and such insurers regarding the Claim, in each case substantially concurrently with the delivery or receipt thereof by the Company.

 

(b) Defense of Claims. The Company shall be entitled to participate in the defense of any Claim relating to an Indemnifiable Event at its own expense and, except as otherwise provided below, to the extent the Company so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. After notice from the Company to Indemnitee of its election to assume the defense of any such Claim, the Company shall not be liable to Indemnitee under this Agreement or otherwise for any Expenses subsequently directly incurred by Indemnitee in connection with Indemnitee’s defense of such Claim other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ its own legal counsel in such Claim, but all Expenses related to such counsel incurred after notice from the Company of its assumption of the defense shall be at Indemnitee’s own expense; provided, however, that if (i) Indemnitee’s employment of its own legal counsel has been authorized by the Company, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of such Claim, (iii) after a Change in Control, Indemnitee’s employment of its own counsel has been approved by the Independent Counsel or (iv) the Company shall not in fact have employed counsel to assume the defense of such Claim, then Indemnitee shall be entitled to retain its own separate counsel (but not more than one law firm) and all Expenses related to such separate counsel shall be borne by the Company.

 

7. Procedure upon Application for Indemnification. In order to obtain indemnification pursuant to this Agreement, Indemnitee shall submit to the Company a written request therefor, including in such request such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of the Claim. Indemnification shall be made insofar as the Company determines Indemnitee is entitled to indemnification in accordance with Section 8 below.

 

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8. Determination of Right to Indemnification.

 

(a) Mandatory Indemnification; Indemnification as a Witness.

 

(i) To the extent that Indemnitee shall have been successful on the merits or otherwise in defense of any Claim relating to an Indemnifiable Event or any portion thereof or in defense of any issue or matter therein, including without limitation dismissal without prejudice, Indemnitee shall be indemnified against all Losses relating to such Claim in accordance with Section 2 to the fullest extent allowable by law, and no Standard of Conduct Determination (as defined in Section 8(b)) shall be required.

 

(ii) To the extent that Indemnitee’s involvement in a Claim relating to an Indemnifiable Event is to prepare to serve and serve as a witness, and not as a party, the Indemnitee shall be indemnified against all Losses incurred in connection therewith to the fullest extent allowable by law and no Standard of Conduct Determination (as defined in Section 8(b)) shall be required.

 

(b) Standard of Conduct. To the extent that the provisions of Section 8(a) are inapplicable to a Claim related to an Indemnifiable Event that shall have been finally disposed of, any determination of whether Indemnitee has satisfied any applicable standard of conduct that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the Company (a “Standard of Conduct Determination”) shall be made as follows:

 

(i) if no Change in Control has occurred, (A) by a majority vote of the Disinterested Directors, even if less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum or (C) if there are no such Disinterested Directors, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee; and

 

(ii) if a Change in Control shall have occurred, (A) if the Indemnitee so requests in writing, by a majority vote of the Disinterested Directors, even if less than a quorum of the Board or (B) otherwise, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee.

 

(c) Making the Standard of Conduct Determination. The Company shall use its reasonable best efforts to cause any Standard of Conduct Determination required under Section 8(b) to be made as promptly as practicable. If the person or persons designated to make the Standard of Conduct Determination under Section 8(b) shall not have made a determination within thirty days after the later of (A) receipt by the Company of a written request from Indemnitee for indemnification pursuant to Section 7 (the date of such receipt being the “Notification Date”) and (B) the selection of an Independent Counsel, if such determination is to be made by Independent Counsel, then Indemnitee shall be deemed to have satisfied the applicable standard of conduct; provided that such 30-day period may be extended for a reasonable time, if the person or persons making such determination in good faith requires such additional time to obtain or evaluate information relating thereto. Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement of Indemnitee to indemnification under this Agreement shall be required to be made prior to the final disposition of any Claim.

 

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(d) Payment of Indemnification. If, in regard to any Losses:

 

(i) Indemnitee shall be entitled to indemnification pursuant to Section 8(a);

 

(ii) no Standard Conduct Determination is legally required as a condition to indemnification of Indemnitee hereunder; or

 

(iii) Indemnitee has been determined or deemed pursuant to Section 8(b) or Section 8(c) to have satisfied the Standard of Conduct Determination,

 

then the Company shall pay to Indemnitee, within thirty days after the later of (A) the Notification Date or (B) the earliest date on which the applicable criterion specified in clause (i), (ii) or (iii) is satisfied, an amount equal to such Losses.

 

(e) Selection of Independent Counsel for Standard of Conduct Determination. If a Standard of Conduct Determination is to be made by Independent Counsel pursuant to Section 8(b), the Independent Counsel shall be selected by the Board, and the Company shall give written notice to Indemnitee advising of the identity of the Independent Counsel so selected. If Indemnitee, within five days after receiving written notice of selection from the Company, deliver to the other a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not satisfy the criteria set forth in the definition of “Independent Counsel” in Section 1, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person or firm so selected shall act as Independent Counsel. If such written objection is properly and timely made and substantiated, (i) the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit; and (ii) the Board may, at its option, select an alternative Independent Counsel and give written notice to the Indemnitee advising the identity of the alternative Independent Counsel so selected, in which case the provisions of the two immediately preceding sentences, the introductory clause of this sentence and numbered clause (i) of this sentence shall apply to such subsequent selection and notice. If applicable, the provisions of clause (ii) of the immediately preceding sentence shall apply to successive alternative selections. If no Independent Counsel that is permitted under the foregoing provisions of this Section 8(e) to make the Standard of Conduct Determination shall have been selected within twenty days after the Company gives its initial notice pursuant to the first sentence of this Section 8(e), either the Company or Indemnitee may petition a court of competent jurisdiction to resolve any objection which shall have been made by the Indemnitee to the selection of Independent Counsel and/or to appoint as Independent Counsel a person to be selected by such court or such other person as the court shall designate, and the person or firm with respect to whom all objections are so resolved or the person or firm so appointed will act as Independent Counsel. In all events, the Company shall pay all of the reasonable fees and expenses of the Independent Counsel incurred in connection with the Independent Counsel’s determination pursuant to Section 8(b).

 

(f) Presumptions and Defenses.

 

(i) Indemnitee’s Entitlement to Indemnification. In making any Standard of Conduct Determination, the person or persons making such determination shall presume that Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification, and the Company shall have the burden of proof to overcome that presumption and establish that Indemnitee is not so entitled. Any Standard of Conduct Determination that is adverse to Indemnitee may be challenged by the Indemnitee in a court of competent jurisdiction. No determination by the Company (including by its directors or any Independent Counsel) that Indemnitee has not satisfied any applicable standard of conduct may be used as a defense to any legal proceedings brought by Indemnitee to secure indemnification or reimbursement or advance payment of Expenses by the Company hereunder or create a presumption that Indemnitee has not met any applicable standard of conduct.

 

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(ii) Reliance as a Safe Harbor. For purposes of this Agreement, and without creating any presumption as to a lack of good faith if the following circumstances do not exist, Indemnitee shall be deemed to have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company if Indemnitee’s actions or omissions to act are taken in good faith reliance upon the records of the Company, including its financial statements, or upon information, opinions, reports or statements furnished to Indemnitee by the officers or employees of the Company or any of its subsidiaries in the course of their duties, or by committees of the Board or by any other Person (including legal counsel, accountants and financial advisors) as to matters Indemnitee reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company. In addition, the knowledge and/or actions, or failures to act, of any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnity hereunder.

 

(iii) No Other Presumptions. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, will not create a presumption that Indemnitee did not meet any applicable standard of conduct or have any particular belief, or that indemnification hereunder is otherwise not permitted.

 

(iv) Defense to Indemnification and Burden of Proof. It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Losses incurred in defending against a Claim related to an Indemnifiable Event in advance of its final disposition) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed. In connection with any such action or any related Standard of Conduct Determination, the burden of proving such a defense or that the Indemnitee did not satisfy the applicable standard of conduct shall be on the Company.

 

9. Exclusions from Indemnification. Notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated to:

 

(a) indemnify or advance funds to Indemnitee for Expenses or Losses with respect to proceedings initiated by Indemnitee, including any proceedings against the Company or its directors, officers, employees or other indemnitees and not by way of defense, except:

 

(i) proceedings referenced in Section 4 above (unless a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous); or

 

(ii) where the Company has joined in or the Board has consented to the initiation of such proceedings;

 

(b) indemnify Indemnitee if a final decision by a court of competent jurisdiction determines that such indemnification is prohibited by applicable law;

 

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(c) indemnify Indemnitee for the disgorgement of profits arising from the purchase or sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Exchange Act, or any similar successor statute;

 

(d) indemnify or advance funds to Indemnitee for Indemnitee’s reimbursement to the Company of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements under Section 304 of the Sarbanes-Oxley Act of 2002 in connection with an accounting restatement of the Company or the payment to the Company of profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act); or

 

(e) indemnify Indemnitee for any Losses incurred as a result of Indemnitee’s gross negligence or willful misconduct.

 

10. Settlement of Claims. The Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Claim related to an Indemnifiable Event effected without the Company’s prior written consent, which shall not be unreasonably withheld. The Company shall not settle any Claim related to an Indemnifiable Event in any manner that would impose any Losses on the Indemnitee without the Indemnitee’s prior written consent.

 

11. Duration. All agreements and obligations of the Company contained herein shall continue during the period that Indemnitee is a director or officer of the Company and shall continue thereafter (i) so long as Indemnitee may be subject to any possible Claim relating to an Indemnifiable Event (including any rights of appeal thereto) and (ii) throughout the pendency of any proceeding (including any rights of appeal thereto) commenced by Indemnitee to enforce or interpret his or her rights under this Agreement, even if, in either case, he or she may have ceased to serve in such capacity at the time of any such Claim or proceeding.

 

12. Non-Exclusivity. The rights of Indemnitee hereunder will be in addition to any other rights Indemnitee may have under the Constituent Documents, any other contract or otherwise (collectively, “Other Indemnity Provisions”); provided, however, that (a) to the extent that Indemnitee otherwise would have any greater right to indemnification under any Other Indemnity Provision, Indemnitee will be deemed to have such greater right hereunder and (b) to the extent that any change is made to any Other Indemnity Provision which permits any greater right to indemnification than that provided under this Agreement as of the date hereof, Indemnitee will be deemed to have such greater right hereunder.

 

13. Liability Insurance. The Company shall from time to time make the good faith determination whether or not it is practicable for the Company to obtain and maintain a policy or policies of insurance providing the officers and directors of the Company with coverage for losses incurred in connection with their services to the Company or to ensure the Company’s performance of its indemnification obligations under this Agreement. To the extent the Company maintains an insurance policy or policies providing directors’ and officers’ liability insurance, Indemnitee shall be covered by such policy or policies, in accordance with its or their terms. Upon reasonable request, the Company will provide to Indemnitee copies of all directors’ and officers’ liability insurance applications, binders, policies, declarations and endorsements, if applicable.

 

14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment to Indemnitee in respect of any Losses to the extent Indemnitee has otherwise received payment under any insurance policy, the Constituent Documents, Other Indemnity Provisions or otherwise of the amounts otherwise indemnifiable by the Company hereunder.

 

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15. Subrogation. In the event of payment to Indemnitee under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee. Indemnitee shall execute all documents required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.

 

16. Amendments. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be binding unless in the form of a writing signed by the party against whom enforcement of the waiver is sought, and no such waiver shall operate as a waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver. Except as specifically provided herein, no failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver thereof.

 

17. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company), assigns, spouses, heirs and personal and legal representatives. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part of the business and/or assets of the Company, by written agreement, to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.

 

18. Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any portion thereof) are held by a court of competent jurisdiction to be invalid, illegal, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law.

 

19. Notices. All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and made if (i) delivered by hand; (ii) otherwise delivered against receipt therefor; (iii) mailed by postage prepaid, certified or registered mail; (iv) sent by a recognized courier with next-day or second-day delivery to the last known address of the other party; or (v) sent by e-mail with confirmation of receipt:

 

(a) if to Indemnitee, to the address set forth on the signature page hereto.

 

(b) if to the Company:

The Board of Directors

Oriental Culture Holding LTD

Room 1512 Block 4 Kang Yuan Zhihui Gang

No 50 Jialingjiang East Road

Jianye District, Nanjing City

Jiangsu Province 210000

People’s Republic of China

Tel: + (86) 25 85766891

 

Notice of change of address shall be effective only when given in accordance with this Section. All notices complying with this Section shall be deemed to have been received on the date of delivery or on the third business day after mailing.

 

20. Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the Cayman Islands without regard to the conflict of laws principles thereof.

 

21. Headings. The headings of the sections and paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction

 

22. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original, and all of which together shall constitute one and the same Agreement.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

 

  Oriental Culture Holding LTD 
     
  By:  
  Name:         
  Title:  
     
  INDEMNITEE
   
   
  Name:  
  Address:  
     
     
  E-mail:  

 

 

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Exhibit 10.8

 

Oriental Culture Holding Ltd.

DIRECTOR AGREEMENT

 

This Director Agreement (the “Agreement”) is made and entered into as of ______ (the “Effective Date”), by and between Oriental Culture Holding Ltd., a Cayman Islands company (the “Company”), and ______, an individual (the “Director”).

 

I. SERVICES

1.1 Board of Directors. The Company has appointed the Director to the Company’s Board of Directors (the “Board “) and a member of the Audit Committee, the Corporate Governance and Nominating Committee and the Compensation Committee of the Board, effective on the Effective Date. Director agrees to perform such tasks as may be necessary to fulfill Director’s obligations as a member of the Board and serve as a director so long as he is duly appointed or elected and qualified in accordance with the applicable provisions of the Memorandum and Articles of Association, Bylaws and any applicable stockholders’ agreement of the Company and until such time as he resigns, fails to stand for election, fails to be elected by the stockholders of the Company or is removed from his position. Director may at any time and for any reason resign or be removed from such position (subject to any other contractual obligation or other obligation imposed by operation of law), in which event the Company shall have no obligation under this Agreement with respect to the Director.

 

1.2 Director Services. Director’s services to the Company hereunder shall include service on the Board to manage the business of the Company in accordance with applicable law and stock exchange rules as well as the Memorandum and Articles of Association and Bylaws of the Company, serving on committees of the Board as appointed and such other services mutually agreed to by Director and the Company (the “Director Services”).

 

1.3 Member of Committees. Director agrees to serve as the Chairman of the _____Committee and a member of the ____ Committee and the ______ Committee of the Board. The Company and the Director acknowledge that all official appointments to committees of the Board are made by the Board.

 

1.4 Expiration Date. This Agreement shall terminate upon the “Expiration Date”, which shall be the earlier of the date on which Director ceases to be a member of the Board for any reason, including death, resignation, removal, or failure to be elected by the stockholders of the Company, or the date of termination of this Agreement in accordance with Section 5.2 hereof.

 

II. COMPENSATION

2.1 Expense Reimbursement. The Company shall reimburse Director for all reasonable travel and other out-of-pocket expenses incurred in connection with the Director Services rendered by Director.

 

2.2 Fees to Director. The Company agrees to pay Director a fee of _____ per month for Director Services, service as the Chairman of the _____Committee, a member of the ______Committee and the _______Committee of the Board and other services mutually agreed by the parties. The fee to the Director shall be paid by the Company quarterly.

 

 

 

III. CONFIDENTIALITY AND NONDISCLOSURE

3.1 Confidentiality. During the term of this Agreement, and for a period of two (2) years after the Expiration Date, Director shall maintain in strict confidence all information he has obtained or shall obtain from the Company, which the Company has designated as “confidential” or which is by its nature confidential, relating to the Company’s business, operations, properties, assets, services, condition (financial or otherwise), liabilities, employee relations, customers (including customer usage statistics), suppliers, prospects, technology, or trade secrets, except to the extent such information (i) is in the public domain through no act or omission of the Director, (ii) is required to be disclosed by law or a valid order by a court or other governmental body, or (iii) is independently learned by Director outside of this relationship with the Company (the “Confidential Information”).

 

3.2 Nondisclosure and Nonuse Obligations. Director will use the Confidential Information solely to perform his obligations for the benefit of the Company hereunder. Director will treat all Confidential Information of the Company with the same degree of care as Director treats his own Confidential Information, and Director will use his best efforts to protect the Confidential Information. Director will not use the Confidential Information for his own benefit or the benefit of any other person or entity, except as being specifically permitted in this Agreement. Director will immediately give notice to the Company of any unauthorized use or disclosure by or through him, or of which he becomes aware, of the Confidential Information. Director agrees to assist the Company in remedying any such unauthorized use or disclosure of the Confidential Information.

 

3.3 Return of Company Property. All materials furnished to Director by the Company, whether delivered to Director by the Company or made by Director in the performance of Director Services under this Agreement (the “Company Property”), are the sole and exclusive property of the Company. Director agrees to promptly deliver the original and any copies of the Company Property to the Company at any time upon the Company’s request. Upon termination of this Agreement by either party for any reason, Director agrees to promptly deliver to the Company or destroy, at the Company’s option, the original and any copies of the Company Property. Director agrees to certify in writing that Director has so returned or destroyed all such Company Property.

 

IV. COVENAN TS OF DIRECTOR

4.1 No Conflict of interest. During the term of this Agreement, and for a period of one (1) year after the Expiration Date, Director shall not be employed by, own, manage, control or participate in the ownership, management, operation or control of any person, firm, partnership, corporation or unincorporated association or entity of any kind that is competitive with the Company or otherwise undertake any obligation inconsistent with the terms hereof. Director represents that nothing in this Agreement conflicts with Director’s obligations to his current affiliation or other current relationships with the entity or entities. A business shall be deemed to be “competitive with the Company” for purpose of this Article IV if and to the extent it engages in the business substantially similar to the Company’s businesses described in its annual report. The ownership by the Director of not more than 5% of a corporation, partnership or other enterprise shall not constitute a violation hereof.

 

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4.2 Noninterference with Business. During the term of this Agreement, and for a period of two (2) years after the Expiration Date, Director agrees not to interfere with the business of the Company in any manner. By way of example and not of limitation, Director agrees not to solicit or induce any employee, independent contractor, customer or supplier of the Company to terminate or breach his, her or its employment, contractual or other relationship with the Company.

 

V. TERM AND TERMINATION

5. 1 Term. This Agreement is effective as of the date first written above and will continue until the Expiration Date.

 

5.2 Termination. Either party may terminate this Agreement at any time upon thirty (30) days prior written notice to the other party, or such shorter period as the parties may agree upon.

 

5.3 Survival. The rights and obligations contained in Articles Ill and IV will survive any termination or expiration of this Agreement.

 

VI. MISCELLANEOUS

6.1 Assignment. Except as expressly permitted by this Agreement, neither party shall assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.

 

6.2 No Waiver. The failure of any party to insist upon the strict observance and performance of the terms of this Agreement shall not be deemed a waiver of other obligations hereunder, nor shall it be considered a future or continuing waiver of the same terms.

 

6.3 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth on the signature page of this Agreement or such other address s either party may specify in writing.

 

6.4 Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.

 

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6.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all Director Services undertaken by Director for the Company.

 

6.6 Amendments. This Agreement may only be amended, modified or changed by an agreement signed by the Company and Director. The terms contained herein may not be altered, supplemented or interpreted by any course of dealing or practices.

 

6.7 Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

6.8 Governing Law. Any disputes arising from or in connection with this Agreement, and the rights and obligations of the parties hereunder, shall be determined in accordance with the law of Cayman Islands applicable to agreements made and to be performed entirely in Cayman Islands.

 

(Signature pages to follow)

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

Company: Oriental Culture Holding Ltd.   Director:
         
By:     By:  
Name:     Name:  
Address:     Address:  

 

 

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Exhibit 10.9

 

Fixed Asset Transfer Contract

 

Transferor: Nanjing Culture and Artwork Property Exchange Co., Ltd (hereinafter, “Party A”)

 

Transferee: Kashi Longrui Business Management Services Co., Ltd (hereinafter, “Party B”)

 

Party A and Party B hereby enter into the following agreement on transfer of Party A’s fixed assets through friendly consultations:

 

1. Party A agrees to transfer a group of fixed assets to Party B for a price of RMB 2.04 million Yuan and Party B agrees to pay such amount to Party A in full prior to November 30, 2018. The specific list of transferred assets and transfer prices are shown in the annex, which shall constitute integral part of this contract and bear the same legal effect as this contract.

 

2. Both parties confirm that Party A will transfer any and all of the aforesaid fixed assets to Party B prior to September 30, 2018. The vouchers and written descriptions related to such assets shall be delivered by Party A along with the transfer.

 

3. Party B will become the lawful owner of such fixed assets and has any and all rights and obligations related to the assets transferred hereunder as of the delivery date set forth herein.

 

4. Liabilities for default: either party shall be deemed in default if it violates any representations, warranties or undertakings made by it herein or any terms of this agreement. The defaulting party shall pay the non-defaulting party liquidated damages in full.

 

5. Dispute resolution: Any dispute arising hereunder shall be resolved by both parties through consultations, failing which either party has the right to submit the dispute to court governing the place of Party A for adjudication.

 

6. This agreement will take effect upon being signed and sealed by both parties. This agreement is made in duplicate, one copy for each party and each copy bearing the same legal effect. Any matters not specified herein shall be resolved by both parties and incorporated into additional agreements to be executed by both parties, which agreements shall bear the same legal effect as this agreement.

 

Party A (sea): Party B(seal):
Authorized representative (signature): Authorized representative (signature):
Date: Date:

 

Annex: List of fixed assets transferred and transfer prices

Exhibit 10.10

 

Website Advertising Space Leasing Agreement

 

Party A: Kashi Jinwang Art Purchase E-commerce Co., Ltd (Lessor)

 

Party B: Kashi Longrui Business Management Services Co., Ltd (Lessee)

 

According to the applicable Chinese laws and regulations, Party A and Party B hereby reach the following agreement on Party B leasing advertising space on Party A’s website (www.njjwyg.com) through friendly consultations, intending to be bound hereby:

 

I. Cooperation

 

Party A will be responsible for releasing website advertisements for Party B and updating the related contents provided by Party B in a timely manner. The advertising contents and documents shall be prepared by Party B and delivered to Party A for uploading. The advertising space shall provide external links, provided that the websites or webpage to which the links point shall be provided by Party B. The websites or webpage to which the links point may not contain any illegal or vulgar contents or any virus, Trojan or malicious code.

 

II. Advertising location: Party A’s website (www.njjwyg.com).

 

III. Advertisement format: height 30cm x width 5cm, gif, jpg or FLASH soundless animation.

 

IV. Advertising period: from January 1, 2019 to December 31, 2021.

 

V. The annual rent of the advertising space is 1,200,000 Yuan (in words: one million two hundred thousand Yuan only), inclusive of tax.

 

As of the effective date of this agreement, the actual fee shall be calculated by the number of days of actual advertisement release on Party A’s website and settled subject to consultations between the two parties.

 

VI. Each party’s rights and obligations

 

1. Party A shall be responsible for releasing Party B’s advertisements on its website and notify Party B of its decision as to whether or not to continue the cooperation prior to the expiration of this agreement.

 

 

 

 

2. Party A shall accept the supervision and examination of its advertising location and advertisement messages by Party B at any time during the period of advertisement.

 

3. Party A shall accurately release Party B’s advertisement messages on its website at such time and place as specified herein.

 

4. Party A shall confirm and examine the advertisement messages provided by Party B and may require Party B to make modifications to any advertising contents or form of expression that are incompliant with laws and regulations, provided that Party A has the right to refuse to release any advertisement for Party B prior to Party B making the aforesaid modifications.

 

5. Party B shall provide Party A with related materials (business qualification certificates and advertisement messages) and ensure the related advertisement messages are lawful, true and accurate.

 

6. Party B may notify Party A to update and modify its advertisement messages during the period of advertisement.

 

7. Party A will not be responsible for any dispute between Party B and any third party due to any advertisements of Party B released on Party A’s website.

 

8. The advertising space leased by Party B hereunder shall be used solely for display of corporate products and corporate image.

 

VII. Liabilities for default

 

1. During the period of advertisement, if the advertisement is terminated due to the fault of Party A, Party A shall refund the remaining advertising fee as of the termination to Party B.

 

2. During the period of advertisement, if the advertisement is terminated due to the fault of Party B, Party A will not be liable in any manner and will not refund the remaining advertising fee.

 

VIII. Force majeure

 

1. If the advertisement release by Party B is adversely affected by the changed national policies and regulations, force majeure or other accidents, neither party shall be liable to the other party.

 

2. In case of occasional short interruption of services due to maintenance activities the telecom department or website maintenance by Party A or the reduced speed of access to Party B’s advertisements or temporary interruption of advertising services due to occasional traffic jam online, which Party B hereby recognizes as normal, neither party shall be liable to the other party.

 

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IX. Renewal of fee

 

1. Party B has the right of first refusal to the advertising space purchased by it hereunder 30 days prior to the expiration of the advertisement period.

 

2. If Party B fails to renew the lease of the advertising space 30 days prior to the expiration of the advertisement period, such advertising space will be open for public bidding on the principle of “first come first serve”.

 

X. Termination

 

This agreement may be terminated if:

 

1. Both parties agree to terminate this agreement through consultations or both parties fail to renew this agreement upon the expiration of this agreement. or

 

2. This contract is rendered unable to continue in force due to force majeure or accident, where both parties may request termination of this agreement.

 

XI. Others

 

1. This agreement shall take effect upon being signed and sealed by both parties and any modification thereto will not take effect unless agreed upon by both parties and made in writing.

 

2. This agreement is made in duplicate, one copy for each party and each copy bearing the same legal effect. Any matters not specified herein shall be resolved by both parties through consultations.

 

3. Any dispute arising hereunder shall be resolved by both parties through consultations, failing which either party has the right to submit the dispute to court governing the place of Party A for adjudication.

 

(The following is intentionally left blank)

 

Party A: Kashi Jinwang Art Purchase E-commerce Co., Ltd (seal):

 

Authorized agent:

 

Date:

 

Party B: Kashi Longrui Business Management Services Co., Ltd (seal):

 

Authorized agent:

 

Date:

 

 

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Exhibit 10.11

 

No.

 

Technical Maintenance Services Contract

 

Party A: Hunan Huaqiang Artwork Trading Center Co., Ltd

 

Party B: Nanjing Yanyu Information Technology Co., Ltd.

 

In accordance with the Contract Law of the People’s Republic of China and through friendly consultations, regarding the technical maintenance services of the trading system of Hunan Huaqiang ARtwork Trading Center Co., Ltd, in the principle of equality and mutual consent, the parties hereby agree as follows:

 

I Services

 

The services herein refer to the operation and maintenance, technical support and other services provided by Party B for the application software developed by it for Party A, mainly including:

 

1) Daily technical support services: Consulting, analyzing and answering all kinds of questions encountered by Party A’s personnel in the process of using Party B’s software, and helping Party A’s personnel correctly use and maintain the relevant software system.

 

2) Application software troubleshooting: Timely eliminating problems in the process of using the software system, and restoring the normal operation of the system. Party B undertakes to remove any fault in the transaction process caused by the software system of Party B and restore the normal operation of the system in time, without adversely affecting the completion of the transaction plan of Party A on the same day.

 

3) Application software upgrade: During the maintenance service period, in the process of using the application software, through friendly consultations between Party A and Party B, Party B shall be responsible for software modification and upgrade of the existing system upon certain new modifications or suggestions raised by Party A without making any major adjustments or changes to the entire system, in order to meet the requirements of Party A.

 

 

 

 

II Service Mode

 

Party B shall provide Party A with the following service modes:

 

1) Hotline service: Party B shall provide Party A with a hotline to ensure timely service provision.

 

2) Remote online services: When necessary, Party B shall, with the consent of Party A, remotely log on to the system to provide daily inspection, system maintenance and troubleshooting services for the system.

 

3) On-site services: If any maintenance work or system failure cannot be solved remotely, Party B shall dispatch engineers to the site where the software server is located as soon as possible to solve the problems as soon as possible.

 

4) Dedicated customer service representative: Party B shall appoint dedicated customer service personnel who shall be fully responsible for service of Party A and establish dedicated maintenance files to ensure that Party B’s customer service personnel have a good understanding of the previous and current situation of the system and improve the service quality.

 

III Working Conditions and Collaboration Matters

 

1) During the system maintenance, Party A shall designate relevant personnel to keep in touch with and cooperate with Party B to ensure that Party B can timely obtain relevant information required for system maintenance.

 

2) When Party B needs to log in the system remotely online for maintenance work, Party A shall promptly provide necessary login information and open corresponding security settings to ensure that Party B can carry out remote maintenance smoothly.

 

3) When Party A requests Party B to upgrade and modify the system software, it shall provide relevant written requests and necessary documents.

 

4) Party B shall keep strictly confidential the relevant business data in Party A’s system and shall not disclose the relevant data to any third party without Party A’s prior consent.

 

2

 

 

IV Term and Method of Performance

 

1) The service period corresponding to this contract is 3 years, from July 1, 2018 to June 30, 2021.

 

2) Upon execution of the maintenance contract and receiving the corresponding maintenance fee from Party A pursuant to this contract, Party B shall commerce performing the services set forth in the contract.

 

3) If Party A requires Party B to continue to provide relevant technical maintenance services five working days prior to the expiration of the maintenance service period, the maintenance fee shall be subject to further consultations between both parties.

 

V Compensation and Payment Method

 

1) The fee for technical maintenance services provided by Party B for Party A’s trading system is RMB 12500/ month.

 

2) Party A shall pay Party B the service fee for the first month in full within 5 working days of execution of this contract, i.e., RMB 12500 Yuan (say RMB twelve thousand and five hundred Yuan only).

 

VI Account details

 

Payee: Nanjing Yanyu Information Technology Co., Ltd.

Deposit Bank: Ping An Bank Aoti Branch

Bank Account Number: 1500003708178

 

VII Dispute resolution

 

All disputes arising from the performance of this contract shall be resolved by both parties through friendly consultations. If no agreement can be reached through consultations, either party has the right to bring a lawsuit to the people’s court where Party B is located. In the course of dispute resolution, this contract shall continue to be performed, except for the part under consultations or litigation.

 

3

 

 

VIII Force Majeure

 

If the continued performance of this contract is rendered impossible due to war, earthquake, fire or flood, the affected party shall immediately notify the other party of the event. In case of breach of contract caused by force majeure, the affected party may be exempted from all or part of the liability for breach of contract depending upon the extent of effects of force majeure on the performance of the contract.

 

IX Others

 

This contract is made in quadruplicate, two copies for each party. This contract shall come into force upon signature and seal by both parties.

 

The following is intentionally left blank and the signature page follows.

 

Party A: Hunan Huaqiang ARtwork Trading Center Co., Ltd (Seal)

 

Signature of representative:

 

Date:

 

Party B: Nanjing Yanyu Information Technology Co., Ltd.

 

Signature of representative:

 

Date:

 

 

4

 

Exhibit 10.12

 

No.

 

Technical Maintenance Services Contract

 

Party A: Kashi Jinwang Art Purchase E-commerce Co., Ltd

Address: Room 1405-6, Shaanxi building, Headquarters Economy Area, Shenka Avenue, Kashi Economic Development Area, Kashi Area, Xinjiang

 

Party B: Nanjing Yanyu Information Technology Co., Ltd.

Address: No. 530, Information New Materials Industrial Park, Dongba Town, Nanjing, Jiangsu Province

 

In accordance with the Contract Law of the People's Republic of China and through friendly consultations, regarding the technical maintenance services of the trading system of Kashi Jinwang Art Purchase E-commerce Co., Ltd, in the principle of equality and mutual consent, the parties hereby agree as follows:

 

I Services

 

The services herein refer to the operation and maintenance, technical support and other services provided by Party B for the application software developed by it for Party A, mainly including:

 

1) Daily technical support services: Consulting, analyzing and answering all kinds of questions encountered by Party A’s personnel in the process of using Party B’s software, and helping Party A’s personnel correctly use and maintain the relevant software system.

 

2) Application software troubleshooting: Timely eliminating problems in the process of using the software system, and restoring the normal operation of the system. Party B undertakes to remove any fault in the transaction process caused by the software system of Party B and restore the normal operation of the system in time, without adversely affecting the completion of the transaction plan of Party A on the same day.

 

3) Application software upgrade: During the maintenance service period, in the process of using the application software, through friendly consultations between Party A and Party B, Party B shall be responsible for software modification and upgrade of the existing system upon certain new modifications or suggestions raised by Party A without making any major adjustments or changes to the entire system, in order to meet the requirements of Party A.

 

 

 

 

II Service Mode

 

Party B shall provide Party A with the following service modes:

 

1) Hotline service: Party B shall provide Party A with a hotline to ensure timely service provision.

 

2) Remote online services: When necessary, Party B shall, with the consent of Party A, remotely log on to the system to provide daily inspection, system maintenance and troubleshooting services for the system.

 

3) On-site services: If any maintenance work or system failure cannot be solved remotely, Party B shall dispatch engineers to the site where the software server is located as soon as possible to solve the problems as soon as possible.

 

4)Dedicated customer service representative: Party B shall appoint dedicated customer service personnel who shall be fully responsible for service of Party A and establish dedicated maintenance files to ensure that Party B’s customer service personnel have a good understanding of the previous and current situation of the system and improve the service quality.

 

III Working Conditions and Collaboration Matters

 

1) During the system maintenance, Party A shall designate relevant personnel to keep in touch with and cooperate with Party B to ensure that Party B can timely obtain relevant information required for system maintenance.

 

2)When Party B needs to log in the system remotely online for maintenance work, Party A shall promptly provide necessary login information and open corresponding security settings to ensure that Party B can carry out remote maintenance smoothly.

 

3) When Party A requests Party B to upgrade and modify the system software, it shall provide relevant written requests and necessary documents.

 

4) Party B shall keep strictly confidential the relevant business data in Party A’s system and shall not disclose the relevant data to any third party without Party A’s prior consent.

 

2

 

 

IV Term and Method of Performance

 

1) The service period corresponding to this contract is 3 years, from October 1, 2018 to September 30, 2021; if Party A fails to give a written notice of termination to Party B one month prior to the expiration of the service period, this agreement shall be automatically renewed for one year.

 

2) Upon execution of the maintenance contract and receiving the corresponding maintenance fee from Party A pursuant to this contract, Party B shall commerce performing the services set forth in the contract.

 

3) If Party A requires Party B to continue to provide relevant technical maintenance services five working days prior to the expiration of the maintenance service period, the maintenance fee shall be subject to further consultations between both parties.

 

V Compensation and Payment Method

 

1) The fee for technical maintenance services provided by Party B for Party A’s trading system is RMB 60000/ month.

 

2) Party A shall pay Party B the service fee for the first quarter in full within 20 working days of execution of this contract, i.e., RMB 180000 Yuan (say RMB one hundred and eighty thousand Yuan only).

 

VI Account details

 

Payee: Nanjing Yanyu Information Technology Co., Ltd.

Deposit Bank: Ping An Bank Aoti Branch

Bank Account Number: 1500003708178

 

3

 

 

VII Dispute resolution

 

All disputes arising from the performance of this contract shall be resolved by both parties through friendly consultations. If no agreement can be reached through consultations, either party has the right to bring a lawsuit to the people’s court where Party B is located. In the course of dispute resolution, this contract shall continue to be performed, except for the part under consultations or litigation.

 

VIII Force Majeure

 

If the continued performance of this contract is rendered impossible due to war, earthquake, fire or flood, the affected party shall immediately notify the other party of the event. In case of breach of contract caused by force majeure, the affected party may be exempted from all or part of the liability for breach of contract depending upon the extent of effects of force majeure on the performance of the contract.

 

IX Others

 

This contract is made in quadruplicate, two copies for each party. This contract shall come into force upon signature and seal by both parties.

 

The following is intentionally left blank and the signature page follows.

 

Party A: Kashi Jinwang Art Purchase E-commerce Co., Ltd (Sale) 

 

Signature of representative:

 

Date:

 

Party B: Nanjing Yanyu Information Technology Co., Ltd.

 

Signature of representative:

 

Date:

 

4

 

 

Exhibit 10.13

 

No.

 

Technical Maintenance Services Contract

 

Party A: Nanjing Jinwang Art Purchase E-commerce Co., Ltd 

Address: 4/F, Building 5, #18, Jialingjiang East Street, Jianye District, Nanjing

 

Party B: Nanjing Yanyu Information Technology Co., Ltd.

Address: No. 530, Information New Materials Industrial Park, Dongba Town, Nanjing, Jiangsu Province

 

In accordance with the Contract Law of the People's Republic of China and through friendly consultations, regarding the technical maintenance services of the trading system of Nanjing Jinwang Art Purchase E-commerce Co., Ltd, in the principle of equality and mutual consent, the parties hereby agree as follows:

 

I Services

 

The services herein refer to the operation and maintenance, technical support and other services provided by Party B for the application software developed by it for Party A, mainly including:

 

1) Daily technical support services: Consulting, analyzing and answering all kinds of questions encountered by Party A’s personnel in the process of using Party B’s software, and helping Party A’s personnel correctly use and maintain the relevant software system.

 

2) Application software troubleshooting: Timely eliminating problems in the process of using the software system, and restoring the normal operation of the system. Party B undertakes to remove any fault in the transaction process caused by the software system of Party B and restore the normal operation of the system in time, without adversely affecting the completion of the transaction plan of Party A on the same day.

 

3) Application software upgrade: During the maintenance service period, in the process of using the application software, through friendly consultations between Party A and Party B, Party B shall be responsible for software modification and upgrade of the existing system upon certain new modifications or suggestions raised by Party A without making any major adjustments or changes to the entire system, in order to meet the requirements of Party A.

 

 

 

 

II Service Mode

 

Party B shall provide Party A with the following service modes:

 

1) Hotline service: Party B shall provide Party A with a hotline to ensure timely service provision.

 

2) Remote online services: When necessary, Party B shall, with the consent of Party A, remotely log on to the system to provide daily inspection, system maintenance and troubleshooting services for the system.

 

3) On-site services: If any maintenance work or system failure cannot be solved remotely, Party B shall dispatch engineers to the site where the software server is located as soon as possible to solve the problems as soon as possible.

 

4)Dedicated customer service representative: Party B shall appoint dedicated customer service personnel who shall be fully responsible for service of Party A and establish dedicated maintenance files to ensure that Party B’s customer service personnel have a good understanding of the previous and current situation of the system and improve the service quality.

 

III Working Conditions and Collaboration Matters

 

1) During the system maintenance, Party A shall designate relevant personnel to keep in touch with and cooperate with Party B to ensure that Party B can timely obtain relevant information required for system maintenance.

 

2)When Party B needs to log in the system remotely online for maintenance work, Party A shall promptly provide necessary login information and open corresponding security settings to ensure that Party B can carry out remote maintenance smoothly.

 

3) When Party A requests Party B to upgrade and modify the system software, it shall provide relevant written requests and necessary documents.

 

4) Party B shall keep strictly confidential the relevant business data in Party A’s system and shall not disclose the relevant data to any third party without Party A’s prior consent.

 

2

 

 

IV Term and Method of Performance

 

1) The service period corresponding to this contract is 3 years, from July 1, 2018 to June 30, 2021; if Party A fails to give a written notice of termination to Party B one month prior to the expiration of the service period, this agreement shall be automatically renewed for one year.

 

2) Upon execution of the maintenance contract and receiving the corresponding maintenance fee from Party A pursuant to this contract, Party B shall commerce performing the services set forth in the contract.

 

3) If Party A requires Party B to continue to provide relevant technical maintenance services five working days prior to the expiration of the maintenance service period, the maintenance fee shall be subject to further consultations between both parties.

 

V Compensation and Payment Method

 

1) The fee for technical maintenance services provided by Party B for Party A’s trading system is RMB 60000/ month.

 

2) Party A shall pay Party B the service fee for the first quarter in full within 5 working days of execution of this contract, i.e., RMB 180000 Yuan (say RMB one hundred and eighty thousand Yuan only).

 

VI Account details

 

Payee: Nanjing Yanyu Information Technology Co., Ltd.

Deposit Bank: Ping An Bank Aoti Branch

Bank Account Number: 1500003708178

 

VII Dispute resolution

 

All disputes arising from the performance of this contract shall be resolved by both parties through friendly consultations. If no agreement can be reached through consultations, either party has the right to bring a lawsuit to the people’s court where Party B is located. In the course of dispute resolution, this contract shall continue to be performed, except for the part under consultations or litigation.

 

3

 

 

VIII  Force Majeure

 

If the continued performance of this contract is rendered impossible due to war, earthquake, fire or flood, the affected party shall immediately notify the other party of the event. In case of breach of contract caused by force majeure, the affected party may be exempted from all or part of the liability for breach of contract depending upon the extent of effects of force majeure on the performance of the contract.

 

IX Others

 

This contract is made in quadruplicate, two copies for each party. This contract shall come into force upon signature and seal by both parties.

 

The following is intentionally left blank and the signature page follows.

 

Party A: Nanjing Jinwang Art Purchase E-commerce Co., Ltd (Seal)

 

Signature of representative:

 

Date: July 1, 2018

 

Party B: Nanjing Yanyu Information Technology Co., Ltd.

 

Signature of representative:

 

Date: July 1, 2018

 

4

 

 

Exhibit 10.14

 

Cooperation Agreement

 

Party A: Kashi Dongfang Cangpin Culture Development Co., Ltd

 

Party B: Zhongcang Warehouse Co., Ltd

 

Party A and Party B hereby reach the following agreement on Party B providing specialized art collection custodianship and warehousing services to Party A through consultations and on the principle of equality, freewill and shared development.

 

I. Cooperation

 

1. Subject of cooperation

 

Party A is a comprehensive art collection company with rich operating experience in art collections and equipped with modern art collection custodianship and warehousing business system. Party B is an art collection warehousing and custodianship center equipped with modern art collection custodianship and warehousing business system.

 

Party A and Party B agree that the art collections operated by Party A will be kept in the custody of Party B’s warehouse where Party B will provide custodianship and warehousing services for art collections and both parties jointly develop a system and conduct system interfacing for cooperation by making full use of respective resources.

 

2. Cooperation mode:

 

1) Party A shall provide the subject matter of warehousing.

 

2) Party B shall solicit art collections, make public announcements of verification and custodianship, and provide verification and custodianship of artworks and artwork warehousing management, among others.

 

3. Profit distribution

 

Party B will charge the service fee based on the actually used warehouse area and according to its tariff, which tariff shall be agreed upon by both parties separately.

 

II. Each party’s rights and obligations

 

1. Party A’s rights and obligations

 

1) Party A has the right to examine the status of warehoused inventory at any time and from time to time.

 

2) Party A has the right to raise improvement requirements for deficiencies found in the actual operations of Party B, whereupon Party B shall make express response to the improvements requested by Party A and take corresponding measures within one week.

 

3) Where the enactment of or change to the related rules and regulations of Party A during the term of this contract involves the operation and service provision of Party B, Party A shall so notify Party B in writing promptly, failing which Party B will not be liable in any manner.

 

 

 

 

4) Party A shall notify Party B one month in advance of its intention to remove its goods from the warehouse in order for Party B to make sufficient preparation for removal from warehouse.

 

2. Party B’s rights and obligations:

 

1) Party B shall establish the verification and custodianship center and complete its rules and regulations.

 

2) Party B shall provide service requirements and endeavor to provide support conducive to the performance of services set forth herein.

 

3) While the art collections is in Party Bs custody, Party B shall ensure the quality of collections is not damaged and shall procure sufficient commercial insurance for the art collections.

 

4) Party B shall take stock of art collections on a regular basis to ensure the goods are intact and the quantities thereof accurate, whereupon Party B shall promptly submit the inventorying reports to Party A for reconciliation.

 

5) Party B shall be solely responsible for any and all direct and indirect economic losses incurred to Party A due to the fault of Party B.

 

III. Others

 

1. Expiration and termination

 

Either party who intends to terminate this agreement shall do so in writing only; the request for termination of this agreement shall be filed to the other party six months in advance and, subject to mutual consent of both parties to termination, both parties shall deliver to each other the materials and articles, failing which either party at fault shall be held liable for default.

 

Whereas the cooperation contemplated hereunder is considerably innovative and might be subject to laws and regulations and requirements of government and regulatory authorities, if both parties are rendered unable to perform this agreement due to the change to the laws and regulations, requirements, approval or consent of government or regulatory authorities, both parties have the right to terminate this agreement without being liable to each other for default. In case of resulting material effects on performance of this agreement, both parties may terminate this agreement with mutual consent.

 

2. Liabilities for default:

 

1) Party B has the right to terminate this agreement if this agreement cannot be performed in full or in part due to Party A’s failure to perform this agreement for its own reasons. In such case, Party A shall pay Party B liquidated damages of 500,000 Yuan.

 

2

 

 

2) Party A has the right to terminate this agreement if this agreement cannot be performed in full or in part due to Party B’s failure to perform this agreement. In such case, Party B shall pay Party A liquidated damages of 500,000 Yuan.

 

3. Confidentiality

 

Unless as otherwise specified by applicable laws and regulations and other normative legal documents or required by competent government or regulatory authorities, neither party may disclose to any third party any confidential information in connection with execution and performance of this agreement without the prior written consent of the other party, except to respective attorneys or other intermediaries engaged by it. This section shall remain valid within two years of expiration or early termination of this agreement.

 

4. Further provisions

 

If either party is rendered unable to perform the related terms of this agreement due to such force majeure as government policy and regulatory measures, both parties may execute supplementary agreements with respect to the affected terms through further consultations.

 

Any matters not specified herein shall be agreed upon by both parties in the spirit of mutual benefit and friendly consultations and incorporated into this agreement in the form of memo or annex; the memos or annexes hereto shall bear the same legal effect as this agreement.

 

If any dispute arising hereunder cannot be resolved by both parties through consultations, either party has the right to sue to the people’s court having competent jurisdiction over the place of the other party.

 

This agreement is made in four copies, two copies for each party and each copy bearing the same legal effect, and this agreement will take effect upon being sealed by both parties or signed by legal representatives of both parties.

 

IV. Term

 

The term of this agreement shall commence from the effective date hereof and expire on December 31, 2021. If both parties intend to continue the cooperation contemplated hereunder prior to the expiration of this agreement, both parties shall discuss the subsequent cooperation on the basis of this agreement and execute another cooperation agreement three months prior to the expiration of this agreement.

 

(The following is intentionally left blank)

 

Party A: Kashi Dongfang Cangpin Culture Development Co., Ltd (seal):

Authorized representative:

Date: 9/1/2018

 

Party B: Zhongcang Warehouse Co., Ltd (seal):

Authorized representative:

Date: 9/1/2018

 

3

 

 

Amendment to Cooperation Agreement

 

Party A: Kashi Dongfang Cangpin Culture Development Co., Ltd

 

Party B: Zhongcang Warehouse Co., Ltd

 

Both parties executed the Cooperation Agreement with respect to custodianship and warehousing of art collections (hereinafter, “original contract”). Now, therefore, both parties hereby reach the following supplementary agreement on the payment of fees set forth in the original contract through friendly consultations:

 

1. Section 1.3 of the original contract shall be modified as “Party B will charge the warehousing fee at the rate of 2%/piece of price of applicable commodities when first sold on the online platform of China International Culture and Artwork Property Exchange Co., Ltd”, effective as of the effective date of this amendment.

 

2. Any and all other terms of the original contract shall remain unchanged and continue in full force and effect.

 

3. The provisions of this amendment shall prevail in case of any inconsistency between the terms of this amendment and the original contract.

 

4. This amendment is made in duplicate, one copy for each party, and will take effect upon being signed and sealed by both parties.

 

Party A: Kashi Dongfang Cangpin Culture Development Co., Ltd (seal):

Authorized representative:

Date: 9/15/2018

 

Party B: Zhongcang Warehouse Co., Ltd (seal):

Authorized representative:

Date:9/15/2018

 

 

4

 

Exhibit 10.15

 

Office Premises Use Contract

 

Party A: Nanjing Culture and Artwork Property Exchange Co., Ltd

 

Party B: Kashi Longrui Business Management Services Co., Ltd

 

Whereas Party A has a cooperative relationship with Party B. Now, Therefore, both parties enter into the following agreement on Party B using the office premises of Party A for office purposes on the basis of equal cooperation and mutual benefit, intending to be bound hereby:

 

I. Term: from January 1, 2019 to December 31, 2019.

 

II. Each party’s rights and obligations

 

1. Party A will provide Party B with office premises, including but not limited to office area, office supplies and broadband internet access.

 

2. Party B shall pay Party A monthly use fee of RMB 90000 Yuan (in words; ninety thousand Yuan only) prior to the 10th day of each month, whereupon Party B may use the office area, office supplies and other facilities provided by Party A.

 

3. Party A has the ownership of the fixed assets and facilities on the office premises and Party A shall coordinate with the property owner, administration of industry and commence, tax, legal and other external relations.

 

4. Party A shall maintain, service and make additions to facilitates and equipment within the office premises and bear the cleaning, employment and labor costs in connection with the office premises.

 

5. Both parties shall jointly maintain the sanitation, safety and security of the office environment.

 

6. Both parties shall conduct business in compliance with law and comply with the rules and regulations related to property rights and the national policies and regulations.

 

 

 

 

III. Liabilities for default

 

Party B shall be deemed in default if it commits any of the following acts, in which case Party A has the right to terminate this contract:

 

1. Party B fails to pay the rent within one month of the payment due date;

 

2. Party B causes losses to Party A due to its illegal business operations.

 

IV. Others

 

1. This contract shall take effect upon being signed and sealed by both parties. Any matters not specified herein shall be resolved by both parties through friendly consultations and may be incorporated into additional agreements with the mutual consent of both parties, which agreements shall bear the same legal effect as this agreement.

 

2. Any dispute arising hereunder shall be resolved by both parties through consultations, failing which either party has the right to submit the dispute to court governing the place of Party A for adjudication.

 

3. This agreement is made in duplicate, one copy for each party and each copy bearing the same legal effect.

 

Party A’s seal: Party B’s seal:
Nanjing Culture and Artwork Property Exchange Co., Ltd Kashi Longrui Business Management Services Co., Ltd
Legal representative/authorized representative: Legal representative/authorized representative:
Date: January 1, 2019 Date:

 

 

 

 

 

Exhibit 10.16

 

No.

 

Technical Maintenance Services Contract

 

Party A: Nanjing Culture and Artwork Property Exchange Co., Ltd.

Address: No.1, Zixia East Road, Maqun Street, Qixia District, Nanjing

 

Party B: Nanjing Yanyu Information Technology Co., Ltd.

Address: No. 530, Information New Materials Industrial Park, Dongba Town, Nanjing, Jiangsu Province

 

In accordance with the Contract Law of the People's Republic of China and through friendly consultations, regarding the technical maintenance services of the trading system of Nanjing Culture and Artwork Property Exchange Co., Ltd, in the principle of equality and mutual consent, the parties hereby agree as follows:

 

I Services

 

The services herein refer to the operation and maintenance, technical support and other services provided by Party B for the application software developed by it for Party A, mainly including:

 

1) Daily technical support services: Consulting, analyzing and answering all kinds of questions encountered by Party A's personnel in the process of using Party B's software, and helping Party A's personnel correctly use and maintain the relevant software system.

 

2) Application software troubleshooting: Timely eliminating problems in the process of using the software system, and restoring the normal operation of the system. Party B undertakes to remove any fault in the transaction process caused by the software system of Party B and restore the normal operation of the system in time, without adversely affecting the completion of the transaction plan of Party A on the same day.

 

3) Application software upgrade: During the maintenance service period, in the process of using the application software, through friendly consultations between Party A and Party B, Party B shall be responsible for software modification and upgrade of the existing system upon certain new modifications or suggestions raised by Party A without making any major adjustments or changes to the entire system, in order to meet the requirements of Party A.

 

 

 

 

II Service Mode

 

Party B shall provide Party A with the following service modes:

 

1) Hotline service: Party B shall provide Party A with a hotline to ensure timely service provision.

 

2) Remote online services: When necessary, Party B shall, with the consent of Party A, remotely log on to the system to provide daily inspection, system maintenance and troubleshooting services for the system.

 

3) On-site services: If any maintenance work or system failure cannot be solved remotely, Party B shall dispatch engineers to the site where the software server is located as soon as possible to solve the problems as soon as possible.

 

4) Dedicated customer service representative: Party B shall appoint dedicated customer service personnel who shall be fully responsible for service of Party A and establish dedicated maintenance files to ensure that Party B's customer service personnel have a good understanding of the previous and current situation of the system and improve the service quality.

 

III Working Conditions and Collaboration Matters

 

1) During the system maintenance, Party A shall designate relevant personnel to keep in touch with and cooperate with Party B to ensure that Party B can timely obtain relevant information required for system maintenance.

 

2) When Party B needs to log in the system remotely online for maintenance work, Party A shall promptly provide necessary login information and open corresponding security settings to ensure that Party B can carry out remote maintenance smoothly.

 

3) When Party A requests Party B to upgrade and modify the system software, it shall provide relevant written requests and necessary documents.

 

4) Party B shall keep strictly confidential the relevant business data in Party A's system and shall not disclose the relevant data to any third party without Party A's prior consent.

 

2

 

 

IV Term and Method of Performance

 

1) The service period corresponding to this contract is 3 years, from July 1, 2018 to June 30, 2021; if Party A fails to give a written notice of termination to Party B one month prior to the expiration of the service period, this agreement shall be automatically renewed for one year.

 

2) Upon execution of the maintenance contract and receiving the corresponding maintenance fee from Party A pursuant to this contract, Party B shall commerce performing the services set forth in the contract.

 

3) If Party A requires Party B to continue to provide relevant technical maintenance services five working days prior to the expiration of the maintenance service period, the maintenance fee shall be subject to further consultations between both parties.

 

V Compensation and Payment Method

 

1) The fee for technical maintenance services provided by Party B for Party A's trading system is RMB 12500/ month.

 

VI Account details

 

Payee: Nanjing Yanyu Information Technology Co., Ltd.

Deposit Bank: Ping An Bank Aoti Branch

Bank Account Number: 1500003708178

 

VII Dispute resolution

 

All disputes arising from the performance of this contract shall be resolved by both parties through friendly consultations. If no agreement can be reached through consultations, either party has the right to bring a lawsuit to the people's court where Party B is located. In the course of dispute resolution, this contract shall continue to be performed, except for the part under consultations or litigation.

 

3

 

 

VIII Force Majeure

 

If the continued performance of this contract is rendered impossible due to war, earthquake, fire or flood, the affected party shall immediately notify the other party of the event. In case of breach of contract caused by force majeure, the affected party may be exempted from all or part of the liability for breach of contract depending upon the extent of effects of force majeure on the performance of the contract.

 

IX Others

 

This contract is made in quadruplicate, two copies for each party. This contract shall come into force upon signature and seal by both parties.

 

The following is intentionally left blank and the signature page follows.

 

Party A: Nanjing Culture and Artwork Property Exchange Co., Ltd (Sale)

 

Signature of representative:

 

Date: July 1, 2018

 

Party B: Nanjing Yanyu Information Technology Co., Ltd.

 

Signature of representative:

 

Date: July 1, 2018

 

 

4

 

Exhibit 10.17

 

No.

 

Technical Maintenance Services Contract

 

Party A: Jinling Cultural Property Rights Exchange Co., Ltd

Address: 7/F, Building 5, #18, Jialingjiang East Street, Jianye District, Nanjing

 

Party B: Nanjing Yanyu Information Technology Co., Ltd.

Address: No. 530, Information New Materials Industrial Park, Dongba Town, Nanjing, Jiangsu Province

 

In accordance with the Contract Law of the People's Republic of China and through friendly consultations, regarding the technical maintenance services of the trading system of Jinling Cultural Property Rights Exchange Co., Ltd, in the principle of equality and mutual consent, the parties hereby agree as follows:

 

I Services

 

The services herein refer to the operation and maintenance, technical support and other services provided by Party B for the application software developed by it for Party A, mainly including:

 

1) Daily technical support services: Consulting, analyzing and answering all kinds of questions encountered by Party A’s personnel in the process of using Party B’s software, and helping Party A’s personnel correctly use and maintain the relevant software system.

 

2) Application software troubleshooting: Timely eliminating problems in the process of using the software system, and restoring the normal operation of the system. Party B undertakes to remove any fault in the transaction process caused by the software system of Party B and restore the normal operation of the system in time, without adversely affecting the completion of the transaction plan of Party A on the same day.

 

3) Application software upgrade: During the maintenance service period, in the process of using the application software, through friendly consultations between Party A and Party B, Party B shall be responsible for software modification and upgrade of the existing system upon certain new modifications or suggestions raised by Party A without making any major adjustments or changes to the entire system, in order to meet the requirements of Party A.

 

 

 

 

II Service Mode

 

Party B shall provide Party A with the following service modes:

 

1) Hotline service: Party B shall provide Party A with a hotline to ensure timely service provision.

 

2) Remote online services: When necessary, Party B shall, with the consent of Party A, remotely log on to the system to provide daily inspection, system maintenance and troubleshooting services for the system.

 

3) On-site services: If any maintenance work or system failure cannot be solved remotely, Party B shall dispatch engineers to the site where the software server is located as soon as possible to solve the problems as soon as possible.

 

4)Dedicated customer service representative: Party B shall appoint dedicated customer service personnel who shall be fully responsible for service of Party A and establish dedicated maintenance files to ensure that Party B’s customer service personnel have a good understanding of the previous and current situation of the system and improve the service quality.

 

III Working Conditions and Collaboration Matters

 

1) During the system maintenance, Party A shall designate relevant personnel to keep in touch with and cooperate with Party B to ensure that Party B can timely obtain relevant information required for system maintenance.

 

2)When Party B needs to log in the system remotely online for maintenance work, Party A shall promptly provide necessary login information and open corresponding security settings to ensure that Party B can carry out remote maintenance smoothly.

 

3) When Party A requests Party B to upgrade and modify the system software, it shall provide relevant written requests and necessary documents.

 

4) Party B shall keep strictly confidential the relevant business data in Party A’s system and shall not disclose the relevant data to any third party without Party A’s prior consent.

 

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IV Term and Method of Performance

 

1) The service period corresponding to this contract is 3 years, from July 1, 2018 to June 30, 2021; if Party A fails to give a written notice of termination to Party B one month prior to the expiration of the service period, this agreement shall be automatically renewed for one year.

 

2) Upon execution of the maintenance contract and receiving the corresponding maintenance fee from Party A pursuant to this contract, Party B shall commerce performing the services set forth in the contract.

 

3) If Party A requires Party B to continue to provide relevant technical maintenance services five working days prior to the expiration of the maintenance service period, the maintenance fee shall be subject to further consultations between both parties.

 

V Compensation and Payment Method

 

1) The fee for technical maintenance services provided by Party B for Party A’s trading system is RMB 12500/ month.

 

2) Party A shall pay Party B the service fee for the first month in full within 5 working days of execution of this contract, i.e., RMB 12500 Yuan (say RMB twelve thousand five hundred Yuan only).

 

VI Account details

 

Payee: Nanjing Yanyu Information Technology Co., Ltd.

Deposit Bank: Ping An Bank Aoti Branch

Bank Account Number:

 

VII Dispute resolution

 

All disputes arising from the performance of this contract shall be resolved by both parties through friendly consultations. If no agreement can be reached through consultations, either party has the right to bring a lawsuit to the people’s court where Party B is located. In the course of dispute resolution, this contract shall continue to be performed, except for the part under consultations or litigation.

 

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VIII  Force Majeure

 

If the continued performance of this contract is rendered impossible due to war, earthquake, fire or flood, the affected party shall immediately notify the other party of the event. In case of breach of contract caused by force majeure, the affected party may be exempted from all or part of the liability for breach of contract depending upon the extent of effects of force majeure on the performance of the contract.

 

IX Others

 

This contract is made in quadruplicate, two copies for each party. This contract shall come into force upon signature and seal by both parties.

 

The following is intentionally left blank and the signature page follows.

 

Party A: Jinling Cultural Property Rights Exchange Co., Ltd (Seal)

 

Signature of representative:

 

Date:

 

Party B: Nanjing Yanyu Information Technology Co., Ltd.(Seal)

 

Signature of representative: Ding Wenyong

 

Date: October 1, 2018

 

 

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Exhibit 21.1

 

List of Principal Subsidiaries and Variable Interest Entities of the Registrant

 

Principal Subsidiaries   Place of Incorporation
Oriental Culture Investment Development Limited   Hong Kong
China International Assets and Equity of Artworks Exchange Limited   Hong Kong
HKDAEx Limited   Hong Kong
Nanjing Rongke Business Consulting Service Co., Ltd   PRC
     
Consolidated Variable Interest Entity   Place of Incorporation
Jiangsu Yanggu Culture Development Company Limited   PRC
     
Subsidiaries of Consolidated Variable Interest Entities   Place of Incorporation
Nanjing Yanqing Information Technology Co., Ltd   PRC
Nanjing Yanyu Information Technology Co., Ltd.   PRC
Kashi Longrui Business Management Services Ltd.   PRC
Kashi Dongfang Cangpin Culture Development Company Limited   PRC

 

Exhibit 23.1

 

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in the Registration Statement (Form F-1) of Oriental Culture Holding LTD of our report dated May 13, 2019 relating to the consolidated financial statements of Oriental Culture Holding LTD for the year ended December 31, 2018. We also consent to the reference to us under the heading “Experts” in such Registration Statement.

 

Very truly yours,

 

 

Flushing, New York

November 12, 2019