As filed with the U.S. Securities and Exchange Commission on December 18, 2019.

Registration No. 333-233992

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

 

 

Amendment No. 2

to

FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 

 

 

MingZhu Logistics Holdings Limited

明珠货运控股有限公司

(Exact name of Registrant as specified in its charter)

 

 

 

Not Applicable

(Translation of Registrant’s name into English)

 

 

 

Cayman Islands   4700   Not Applicable
(State or other jurisdiction of
incorporation or organization)
  (Primary Standard Industrial
Classification Code Number)
  (I.R.S. Employer
Identification No.)

 

27F, Yantian Modern Industry Service Center

No. 3018 Shayan Road, Yantian District

Shenzhen, Guangdong, China 518081

Tel: (86) 755-25209839

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

 

 

 

Puglisi & Associates
850 Library Avenue, Suite 204
Newark, DE 19711
Tel: (302) 738-6680

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

 

 

 

Copies to:

 

Richard I. Anslow, Esq.
Jonathan Deblinger, Esq.
Wei Wang, Esq.
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, NY 10105
Phone: (212) 370-1300
Fax: (212) 370-7889
 

Joel D. Mayersohn, Esq.

Dickinson Wright PLLC

350 East Las Olas Blvd.

Ft. Lauderdale, FL 33301

Phone: (954) 991-5426
Fax: (844) 670-6009

 

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 the Class of Securities to be Registered   Proposed Maximum Aggregate Offering
Price(1)
    Amount of Registration Fee(5)  
Ordinary shares, par value $0.001 per share (2)   $ 11,500,000     $ 1,393.8  
Underwriter Warrants (3)   $ -     $ -  
Ordinary shares underlying Underwriter Warrants (2) (4)   $  1,322,500     $ 160.3  
Total   $ 12,822,500     $ 1,554.1  

 

(1)

Estimated solely for the purpose of calculating the registration fee under Rule 457(o) of the Securities Act of 1933, as amended (the “Securities Act”).  Includes ordinary shares that are issuable upon the exercise of the over-allotment option of the underwriters.

 

(2) Pursuant to Rule 416 under the Securities Act, the securities being registered hereunder include such indeterminate number of additional ordinary shares as may be issued after the date hereof as a result of share splits, share dividends or similar transactions.

 

(3) In accordance with Rule 457(g) under the Securities Act, because the shares of the registrant’s ordinary shares underlying the underwriters’ warrants (“Underwriter Warrants”) are registered hereby, no separate registration fee is required with respect to the warrants registered hereby.
   
(4) As estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(g) under the Securities Act.  As estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(g) under the Securities Act, the proposed maximum aggregate offering price of the Underwriter Warrants is $1,322,500 (which is equal to 115% of $1,150,000).

 

(5) Previously paid.

 

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.

 

PRELIMINARY PROSPECTUS (Subject to Completion)   Dated  December 18, 2019

 

________ Ordinary Shares

 

 

MingZhu Logistics Holdings Limited

明珠货运控股有限公司

 

This is the initial public offering of ordinary shares of MingZhu Logistics Holdings Limited明珠货运控股有限公司, a Cayman Islands exempted company. We are offering          ordinary shares. We expect the initial public offering price of the shares to be $     per share. Prior to this offering, there has been no public market for our ordinary shares. We have applied to have our ordinary shares listed on the Nasdaq Capital Market (“Nasdaq”) under the symbol “YGMZ.” We cannot guarantee that we will be successful in listing our ordinary shares on the Nasdaq; however, we will not complete this offering unless we are so listed.

 

Following the completion of this offering, we will be a “controlled company” under the listing requirements of Nasdaq. Mr. Jinlong Yang, our founder and chairman of our board of directors, will beneficially own approximately        % of the aggregate voting power of our outstanding ordinary shares upon completion of this offering. We do not intend to rely on the controlled company exemptions under the Nasdaq listing rules. See “Risk Factors” and “Management — Controlled Company.”

 

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. See “Prospectus Summary — Implications of Being an Emerging Growth Company.”

 

Investing in our ordinary shares is highly speculative and involves a significant degree of risk. See “Risk Factors” beginning on page 7 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  
Public offering price   $     $    
Underwriting fee and commissions(1)(2)   $     $    
Proceeds to us, before expenses   $     $    

 

 

(1) Represents underwriting discount and commissions equal to $[●] per share, which is the underwriting discount we have agreed to pay on investors that participate in this Offering.

 

(2) Does not include a non-accountable expense allowance equal to 1% of the gross proceeds of this offering, payable the underwriters, or the reimbursement of certain expenses of the underwriters. In addition to the underwriting discounts listed above and the non-accountable expense allowance described in the footnote, we have agreed to issue upon the closing of this offering, compensation warrants to the underwriters exercisable for a period of five years from the effective date of this registration statement entitling the representative to purchase up to 5% of the number of shares sold in this offering at a per share exercise price equal to 115% of the public offering price. The registration statement of which this prospectus is a part also covers such warrants and the shares issuable upon the exercise thereof. See “Underwriting” of this prospectus for additional information regarding total underwriter compensation.

 

This offering is being conducted on a firm commitment basis. The underwriters are obligated to take and pay for all of the shares if any such shares are taken. We have granted the underwriters an option for a period of 45 days after the closing of this offering to purchase up to 15% of the total number of our ordinary shares to be offered by us pursuant to this offering (excluding shares subject to this option), solely for the purpose of covering over-allotments, at the initial public offering price less the underwriting discount. If the underwriters exercise the option in full, the total underwriting discounts and commissions payable will be $             based on an offering price $          per share, and the total proceeds to us, before expenses, will be $             . If we complete this offering, net proceeds will be delivered to our company on the closing date. We will not be able to use such proceeds in China, however, until we complete capital contribution procedures which requires prior approval from certain PRC regulators. See remittance procedures in the section titled “Use of Proceeds” beginning on page 31.

 

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   7
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS AND INDUSTRY DATA   30
USE OF PROCEEDS   31
CAPITALIZATION   32
DILUTION   33
ENFORCEABILITY OF CIVIL LIABILITIES   34
SUMMARY CONSOLIDATED FINANCIAL AND OPERATING DATA   35
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS   36
OUR INDUSTRY   52
BUSINESS   63
REGULATIONS   84
MANAGEMENT   91
PRINCIPAL SHAREHOLDERS   97
RELATED PARTY TRANSACTIONS   98
DESCRIPTION OF SHARE CAPITAL   100
SHARES ELIGIBLE FOR FUTURE SALE   105
TAXATION   106
UNDERWRITING   111
EXPENSES RELATING TO THIS OFFERING   116
LEGAL MATTERS   116
EXPERTS   116
WHERE YOU CAN FIND ADDITIONAL INFORMATION   116
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS   F-1

 

You should rely only on the information contained in this prospectus. We have not, and the underwriters have not, authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should not assume that the information contained in this prospectus is accurate as of any date other than the date on the front of this prospectus.

 

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 7. 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 of this prospectus.

 

This prospectus contains information from a report commissioned by us and prepared by Frost & Sullivan, an independent market research firm, to provide information on the transportation industry in China and certain regions thereof.

 

All references to “we,” “us,” “our,” or similar terms used in this prospectus refer to MingZhu Logistics Holdings Limited明珠货运控股有限公司, a Cayman Islands exempted company, including its wholly-owned subsidiaries, unless the context otherwise indicates.

 

“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 “$” or “U.S. dollars” refers to the legal currency of the United States.

 

Overview

 

We are one of China’s fastest growing trucking services provider in China with over 17 years of experience in the transportation and logistics industry. We formed our first operating subsidiary in 2002 to engage in the business of trucking services and subsequently formed four other wholly owned subsidiaries. Our current operations are conducted through our subsidiaries. We experienced a steady growth in our business in recent years and our revenue increased by 5.9% for the nine months ended September 30, 2019 comparing to the same period in 2018 with an increase of 34.1% in 2018 compared to 2017. As a result of our continuous growth, we have become the second largest transportation service provider in the Guangdong region and have been recognized and accredited by the China Federation of Logistics and Purchasing as a 3A-grade trucking service provider.

 

Our transportation services operate out of two terminals, one in the Guangdong region, and one in the Xinjiang region. We primarily provide Dedicated Truckload Services within the PRC. We have created a successful business model that has allowed us to expand our customer base and market coverage whilst maintaining good relations with our existing customers. With the proceeds raised, we intend to carry out our strategy that will allow us to reach our mission to become China’s largest and most trusted transportation company.

 

We operate a truckload fleet with 139 tractors and 90 trailers, all of which are owned by us. Given the large scale of our fleet, we offer both network density and broad geographic coverage to meet our customers’ diverse transportation needs within the PRC.

 

Our customers primarily include sizeable logistics companies, freight forwarders and warehouse operators in the PRC. During the nine months ended September 30, 2019, and 2018, we had 37 and 40 customers, and sales to our top five customers accounted for approximately 62.3% and 64.8%, respectively. During the fiscal years 2018 and 2017, we had 40 and 36 customers, respectively, and our top five customers accounted for approximately 63.9% and 71.4% of our total revenue, respectively. 

 

We generate revenue from our trucking service business. Our total revenue was $20,735,260 and $19,588,457 for the nine months ended September 30, 2019 and 2018, respectively, representing an increase of approximately 5.9%. Our total revenue was $27,676,789 and $20,616,011 for the fiscal years of 2018 and 2017, respectively, representing an increase of approximately 34.1%. We recorded an income from operations of approximately $1,639,260 and $2,862,641 for the nine months ended September 30, 2019, respectively. For the nine months ended September 30, 2019, our revenue generated from Guangdong and Xinjiang provinces accounted for 50.8% and 49.2%, respectively, of our total revenue. We recorded an income from operations of approximately $4,034,766 and $2,317,476 for the fiscal years of 2018 and 2017, respectively. For the fiscal year ended December 31, 2018, our revenue generated from Guangdong and Xinjiang provinces accounted for 52.2% and 47.8%, respectively, of our total revenue. For the fiscal year ended December 31, 2017, our revenue generated from Guangdong and Xinjiang provinces accounted for 75.3% and 24.7%, respectively, of our total revenue.

 

Our Strengths

 

We believe that the following strengths differentiate us from our competitors and provide us with advantages for realizing the potential of market opportunity:

.

  Substantial Industry Experience
     
  Long-Standing Relationships with Customers in the PRC, primarily including sizeable third-party logistics companies
     
  Experienced and Motivated Management Team
     
  Sizable Fleet Consisting of Over 130 Tractors and 90 Trailers
     
  Well-Functioned Network
     
  Fleet and Maintenance System designed to Optimize Life-Cycle Investment

 

1

 

 

Our Strategies

 

Our principal objective is to sustain a continuous growth in our business and maintain our competitive advantages such that we can be positioned as a leading player in the transportation industry in the PRC. We plan to implement the following strategies to further develop our existing transportation business and reputation in the PRC:

 

Attract and retain top talent at all levels to ensure sustainable growth
     
Expand and upgrade our fleet size in response to the increase in market demands
     
Strengthen our information technology system
     
Maintain stable relationships with our major customers and suppliers and expand our customer base
     
Further expand into Xinjiang and other less competitive new markets
     

Acquire and invest in strategic entities

 

Corporate Structure

 

The following diagram illustrates our corporate structure as of the date of this prospectus, including our subsidiaries. For more detail on our corporate history, please refer to “Business - Corporate History and Structure” on page 82 of this prospectus.

  

 

2

 

 

Summary of Risks Affecting Our Company

 

Our business is subject to numerous risks described in the section titled “Risk Factors” and elsewhere in this prospectus. The main risks set forth below and others you should consider are discussed more fully in the section entitled “Risk Factors” beginning on page 7, which you should read in its entirety.

 

Our reliance on major customers and any loss of our major customers or changes in their demands for our services would likely have a material adverse effect on our business, results of operations, financial conditions and prospect.
     
Our principal shareholder (controlled by our Chairman and Chief Executive Officer) will continue to exert substantial influence over our company.
     
Our executive officers have no prior experience in operating a U.S. public company, and their inability to operating the public company aspects of our business could harm us.
     
We are exposed to credit risk from our customers.
     
Our cash flow position may deteriorate owing to the difference in timing between receipt of payments from our customers and payments to our suppliers and subcontractors if we are unable to manage such timing difference and its impact on our cash flow properly.
     
We have identified material weaknesses in our internal accounting controls, which we may be unable to remediate despite the efforts we plan to make to address such weaknesses.
     
Changes in China’s economic, political or social conditions or government policies could have a material adverse effect on our business and operations.
     
An active trading market for our ordinary shares may not develop following this offering, and the trading price of our ordinary shares may be volatile, each of which could result in substantial losses to investors.
     
Because we are incorporated under Cayman Islands law, investors may face difficulties in protecting their interests, and investors’ ability to protect their rights through U.S. courts may be limited.

 

Implications of Being an Emerging Growth Company

 

As a company with less than $1.07 billion in revenue during our last fiscal year, we qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act, or JOBS Act, enacted in April 2012, and may take advantage of reduced reporting requirements that are otherwise applicable to public companies. These provisions include, but are not limited to:

 

being permitted to present 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 our filings with the Securities and Exchange Commission, or the SEC;
     
not being required to comply with the auditor attestation requirements in the assessment of our internal control over financial reporting;
     
reduced disclosure obligations regarding executive compensation in periodic reports, proxy statements and registration statements; and
     
exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved.

 

We may take advantage of these provisions until the last day of our fiscal year following the fifth anniversary of the date of the first sale of our ordinary shares pursuant to this offering. However, if certain events occur before the end of such five-year period, including if we become a “large accelerated filer,” our annual gross revenues exceed $1.07 billion or we issue more than $1.0 billion of non-convertible debt in any three-year period, we will cease to be an emerging growth company before the end of such five-year period.

 

In addition, Section 107 of the JOBS Act 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. We have elected to take advantage of the extended transition period for complying with new or revised accounting standards and acknowledge such election is irrevocable pursuant to Section 107 of the JOBS Act.

 

3

 

 

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

 

  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.

 

Corporate Information

 

Our principal executive offices are located at 27F, Yantian Modern Industry Service Center, No. 3018 Shayan Road, Yantian District, Shenzhen, Guangdong, China 518081, and our telephone number at that address is (86) 755-25209839. Our website is www.szygmz.com. Information contained on, or available through, our website does not constitute part of, and is not deemed incorporated by reference into, this prospectus. Our registered office in the Cayman Islands is located at Ogier Global (Cayman) Limited, 89 Nexus Way, Camana Bay, Grand Cayman KY1-9009 Cayman Islands. Our agent for service of process in the United States is Puglisi & Associates, located at 850 Library Avenue, Suite 204, Newark, Delaware 19711.

 

Conventions that Apply to this Prospectus

 

This prospectus contains information and statistics relating to China’s economy and the industries in which we operate derived from various publications issued by market research companies and PRC governmental entities, which have not been independently verified by us, the underwriters or any of their affiliates or advisers including Frost & Sullivan, an independent market research and consulting firm with respect to information on the transportation industry in China. The information in such sources may not be consistent with other information compiled in or outside of China.

 

We use U.S. dollars as the reporting currency in our financial statements and in this prospectus. Monetary assets and liabilities denominated in Renminbi are translated into U.S. dollars at the rates of exchange as of the applicable balance sheet date. Equity accounts are translated at historical exchange rates, and revenues, expenses, gains and losses are translated using the average rates for the applicable period. In other parts of this prospectus, any Renminbi denominated amounts are accompanied by the related translations. With respect to amounts not recorded in our consolidated financial statements included elsewhere in this prospectus, all translations from Renminbi to U.S. dollars were made at RMB 7.1477 to $1.00, the exchange rate set forth in the H.10 statistical release of the Federal Reserve Board at September 30, 2019. We make no representation that the Renminbi or U.S. dollar amounts referred to in this prospectus could have been or could be converted into U.S. dollars or Renminbi, as the case may be, at any particular rate or at all. The PRC government restricts or prohibits the conversion of Renminbi into foreign currency and foreign currency into Renminbi for certain types of transactions — overseas investments in areas including real estate, hotels, cinemas, the entertainment industry, and sports clubs will be limited, while investments in some sectors such as gambling will be banned.

 

Unless the context indicates otherwise, all information in this prospectus assumes no exercise by the underwriters of their over-allotment option.

 

4

 

 

Summary Consolidated Financial and Operating Data

 

The following summary consolidated statements of income and comprehensive income for the nine months ended September 30, 2019 and 2018 and the years ended December 31, 2018 and 2017, and the summary consolidated balance sheet data as of September 30, 2019, December 31, 2018 and 2017, have been derived from our consolidated financial statements included elsewhere in this prospectus. 

 

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.

 

    For the Nine Months
Ended
September 30,
    For the Year Ended
December 31,
 
    2019     2018     2018     2017  
Selected Consolidated Statements of Income and Comprehensive Income Data:   USD     USD     USD     USD  
    (Unaudited)     (Unaudited)              
Revenues     20,735,260       19,588,457       27,646,789       20,616,011  
Transportation costs    

17,951,763

      15,746,947       22,399,066       16,806,258  
General and administrative expenses    

1,100,652

      916,846       1,147,101       1,452,369  
Income from operations     1,639,260       2,862,641       4,034,766       2,317,476  
Other (expenses) income     (112,488 )     (118,114 )     (173,851 )     (391,121 )
Income before income taxes     1,526,772       2,744,527       3,860,915       1,926,355  
Provision for income taxes     500,739       700,801       1,006,028       688,265  
Net income     1,026,033       2,043,726       2,854,887       1,238,090  
Other comprehensive income (loss)     (377,649 )     (408,795 )     (419,684 )     291,244  
Comprehensive income     648,384       1,634,931       2,435,203       1,529,334  
Earnings per share - basic and diluted     1,026.03       2,043.73       2,854.89       1,238.09  
Weighted average ordinary shares outstanding     1,000       1,000       1,000       1,000  

 

    September 30,
2019
    December 31,
2018
    December 31,
2017
 
Selected Consolidated Balance Sheet Data:   USD     USD     USD  
    (Unaudited)              
Current assets     18,469,303       10,567,898       11,471,380  
Property and equipment, net     4,224,761       4,988,774       5,431,913  
Total assets     23,073,843       15,883,551       17,297,480  
Total debt (including current maturities)     3,196,735       2,522,726       3,843,967  
Capital lease and financing obligations     1,693,551       1,464,109       1,781,414  
Shareholders’ equity     9,153,415       8,505,031       5,040,587  

 

5

 

 

The Offering

 

Securities being offered:                    ordinary shares on a firm commitment basis.
     
Initial offering price:   We estimate the initial public offering price for the ordinary shares will be $            per ordinary share.
     
Number of ordinary shares outstanding before the offering:   1,000 ordinary shares.
     
Number of ordinary shares outstanding after the offering:                 ordinary shares, assuming full exercise of the underwriters’ over-allotment option, and           ordinary shares, assuming no exercise of the underwriters’ over-allotment option.
     
Underwriters’ Over-Allotment Option   We have granted the underwriters an option for a period of up to 45 days to purchase up to              additional ordinary shares.
     
Use of proceeds:   We intend to use the net proceeds of this offering for expansion of fleet size, operational improvement as well as strategic acquisitions and alliances based on market conditions and for other general corporate purposes. As of the date of this prospectus, we are not a party to any agreement or understanding with respect any such acquisitions or alliances. For more information on the use of proceeds, see “Use of Proceeds” on page 31.
     
Lock-up agreements   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 from 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 $500,000 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 that we have to indemnify the underwriters pursuant to the terms of an underwriting agreement with the underwriters.
     
Proposed Nasdaq symbol:   We have applied to have our ordinary shares listed on the Nasdaq under the symbol “YGMZ.”
     

Risk factors:

 

Investing in our ordinary shares is highly speculative and involves a significant 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 7.

 

6

 

 

RISK FACTORS

 

Investing in our ordinary shares is highly speculative and involves a significant degree of risk. You should carefully consider the following risks, as well as other information contained in this prospectus, before making an investment in our company. The risks discussed below could materially and adversely affect our business, prospects, financial condition, results of operations, cash flows, ability to pay dividends and the trading price of our ordinary shares. Additional risks and uncertainties not currently known to us or that we currently deem to be immaterial may also materially and adversely affect our business, prospects, financial condition, results of operations, cash flows and ability to pay dividends, and you may lose all or part of your investment.

 

Risks Related to Our Business and Industry

 

Our reliance on major customers and any loss of our major customers or changes in their demands for our services would likely have a material adverse effect on our business, results of operations, financial conditions and prospect.

 

We have historically relied on a limited number of major customers for a significant portion of our revenue and we anticipate that such reliance will remain unchanged in the near future. During the nine months ended September 30, 2019, and 2018, sales to our top five customers accounted for approximately 62.3% and 64.8%, respectively. For the nine months ended September 30, 2019, Xinjiang Dijiu Energy Co., Ltd. and Changshan Zhongka Yunli Supply Chain Management Co., Ltd. accounted for 23.1% and 16.5% of total revenue. Guangzhou Hoolinks Technologies Co., Ltd, Chanji Prefecture Jiukang Logistics Co., Ltd. and Changshan Zhongka Yunli Supply Chain Management Co., Ltd. accounted for 23.3%, 12.4% and 10.5% of total revenue for the nine months ended September 30, 2018, respectively. For the years ended December 31, 2018 and 2017, top five customers accounted for 63.9% and 71.4% of our total revenue, respectively. In particular, for the year ended December 31, 2018, Chanji Prefecture Jiukang Logistics Co., Ltd. and Guangzhou Hoolinks Technologies Co., Ltd. accounted for 20.4% and 16.3% of our revenue, respectively. For the year ended December 31, 2017, Changshan Zhongka Yunli Supply Chain Management Co., Ltd., Best Logistics Technology Co., Ltd. and Foshan Bufeng Lianhua Management Consultation Co., Ltd. accounted for 29.2%, 15.4% and 11.0% of our total revenue, respectively.

 

Our service agreements with our customers are generally for an average term of one year. While certain service contracts contain options of renewal, there is no assurance that our major customers will continue their business relationship with us, or the revenue generated from dealings with them will be maintained or increased in the future. In particular, if there is any claim against us related to the quality of our services from our major customers, such claim would affect the relationship with our major customers or substantially reduce their demand of our trucking services.

 

If we are unable to enter into new service contracts with our customers upon expiry of the current contracts, or there is a reduction or cessation of demands from these customers for whatever reasons and we are unable to enter into service contracts of comparable size and terms in substitution, our business, financial conditions and results of operation may be materially and adversely affected. In addition, any deterioration on our customers’ ability to use our services and/or pay for our services in a timely manner will also have a material adverse effect on our business, results of operations, financial conditions and prospect.

 

Although a number of our business strategies will help mitigate risks resulting from our reliance on major customers, see “Business – Our Strategies”, “Business – Customers – Our relationship with major customers,” there is no assurance that these strategies will be implemented successfully or, if implemented, fully mitigate the risks in connection with the loss of one or more major customers.

 

None of our service agreements with our customers are on an exclusive basis.

 

None of our service agreements with our customers are on an exclusive basis and our customers can engage other trucking services provider(s) for the provision of transportation and delivery services in addition to or in lieu of us.

 

Though we have had stable business relationships with our major customers, there is no assurance that our major customers will not engage one or more service providers for the provision of trucking services during the term of our service agreements with them. We cannot assure you that we can generate the same level of or increased revenue from our major customers as compared to the existing scenario. Any appointment of any additional logistics services providers by our major customers could therefore have a material adverse impact on our business, financial condition and operating results.

 

If we are unable to collect our receivables from our existing customers, our results of operations and cash flows could be adversely affected.

 

Our business depends on our ability to successfully obtain payment from our customers of the amounts they owe us for our services. As of September 30, 2019, we had accounts receivable recorded at $13,244,698 of which $71,956 were allowanced and $1,415,429 were past due but not impaired, accounting for approximately 11% of our total accounts receivable. As of December 31, 2018 and 2017, we recorded accounts receivable amounted to $7,481,932, and $8,199,216, respectively, of which approximately $89,069 and $29,518 were allowanced and $890,845 and $765,699 were past due but not impaired, respectively, accounting for approximately 11.9% and 9.3% of our total accounts receivable.

 

We establish an allowance for doubtful accounts based upon estimates, historical experience and other factors surrounding the credit risk of specific customers. However, actual losses on customer receivables balance could differ from those that we anticipate and as a result we might need to adjust our allowance. There is no guarantee that we will accurately assess the creditworthiness of our customers. Macroeconomic conditions, including related turmoil in the global financial system, could also result in financial difficulties for our customers, including limited access to the credit markets, insolvency or bankruptcy, and as a result could cause customers to delay payments to us, requesting modifications to their payment arrangements that could increase our receivables balance or default on the payment obligations to us. As a result, an extended delay or default in payment relating to a significant account will have a material and adverse effect on the aging schedule and turnover days of our account receivable. If we are unable to collect our receivables from our customers in accordance with the contracts with our customers, our results of operations and cash flows could be adversely affected.

 

7

 

 

We may incur losses in the future.

 

We had a net income of $1,026,033 and $2,043,726 for the nine months ended September 30, 2019 and 2018, respectively. We had a net income of $2,854,887 and $1,238,090, respectively, for the fiscal years ended December 31, 2018 and 2017. Despite our history of generating net income, we anticipate that our operating expenses, together with the increased general administrative expenses of a growing public company, will increase in the foreseeable future as we seek to maintain and continue to grow our business, attract potential customers and further enhance our services. These efforts may prove more expensive than we currently anticipate, and we may not succeed in increasing our revenue sufficiently to offset these higher expenses. As a result of the foregoing and other factors, we may incur net losses in the future and may be unable to achieve or maintain profitability on a quarterly or annual basis for the foreseeable future.

 

We generate a significant portion of our revenue from transportation services of slack coal in Xinjiang. Our reliance on such services subjects us to risks resulting from any decline in the business performance of our customers in the slack coal industry and adverse events in the slack coal industry or in the Xinjiang region in general.

 

We have relied upon transportation services of slack coal in Xinjiang for a significant portion of revenue. For the nine months ended September 30, 2019 and 2018, we had revenue generated from Xinjiang province accounting for 49.2% and 44.6%, respectively. For the fiscal years ended December 31, 2018 and 2017, our revenue generated from Xinjiang province accounted for 47.8% and 24.7%, respectively, of our total revenue. Although we plan to diversify our services and customer base as we further expand into the Xinjiang market, we anticipate that we will at least to certain extent continue to rely on transportation services of slack coal in the near future. As such, our business performance will be affected by the slack coal industry in Xinjiang and the business performance of our customers in that industry. If these customers’ sales decline, such decline may likely lead to a corresponding decrease in demand for our services. Furthermore, any adverse developments in the slack coal industry or in the Xinjiang region in general could also materially and adversely affect our business, financial condition and results of operations.

 

The agreements governing the loan facilities MingZhu currently has contain restrictions and limitations that could significantly affect our ability to operate our business, raise capital, as well as significantly affect our liquidity, and therefore could adversely affect our results of operations.

 

Under its loan agreements with existing lenders, MingZhu has the obligation to notify its lenders prior to certain corporate actions. Such corporation actions include, among other events, mergers, equity offerings, transfers of material assets, involvement in a material lawsuit and certain material related party transactions. In addition, pursuant to its loan agreements, MingZhu cannot provide guarantees to any third party, prioritize repayment of other loans, pay dividends to its shareholders or consummate a reorganization or share ownership restructuring without prior written consent of certain lenders. See “Business – Material Contracts.”

 

The foregoing provisions restrict, among other aspects, MingZhu’s ability to:

 

  incur or permit to exist any additional indebtedness or liens;

 

  guarantee or otherwise become liable with respect to the obligations of another party or entity;

 

  acquire any assets or enter into merger or joint venture transactions; and

 

  consummate certain related party transactions.

 

Our ability to comply with these provisions may be affected by events beyond our control.  A failure to comply with any of such provisions will constitute an event of default under existing loan agreements of MingZhu, upon which the lenders will have the right to take a number of remedial actions that could adversely affect our liquidity and results of operations. See “-Defaults under our loan agreements could result in a substantial loss of our assets.”

 

Defaults under our loan agreements could result in a substantial loss of our assets and adversely affect our financial condition and operating results.

 

A failure to repay any of the indebtedness under our loan agreements as they become due or to otherwise comply with the covenants contained therein could result in an event of default thereunder. In addition, the loan agreements between MingZhu and certain lenders contain a cross-default provision, pursuant to which a default under any other loan agreement will be deemed an event of default under such agreements.  If not cured or waived, an event of default under our existing loan agreements could enable the lenders to declare all borrowings outstanding on such debt, together with accrued and unpaid interest and fees, to be due and payable and terminate all commitments to extend further credit. The lenders could also elect to foreclose on our assets securing such debt. In such an event, we may not be able to refinance or repay our indebtedness, pay dividends or have sufficient liquidity to meet operating and capital expenditure requirements. Any such acceleration could cause us to lose a substantial portion of our assets and will substantially adversely affect our financial condition and operating results.

 

8

 

 

Our cash flow position may deteriorate owing to the difference in timing between receipt of payments from our customers and payments to our suppliers and subcontractors if we are unable to such timing difference and its impact on our cash flow properly.

 

For our daily operations, we outsourced a portion of our trucking services to external transportation companies, and sourced tires and fuel oils from the third party suppliers. Our cash flows depend on timely receipt of payments from our customers to meet our payment obligations to our suppliers and subcontractors. As of September 30, 2019, December 31, 2018 and 2017, our trade payables amounted to approximately $5,980,499, $845,093 and $1,709,088, respectively, whereas the respective trade payables accounted for approximately 48.7%, 15.3% and 14.7% of our total current liabilities, respectively.

 

Our account receivables turnover days were approximately 133.9 days and 96.4 days, respectively, during the nine months ended September 30, 2019 and 2018. Our account receivables turnover days were approximately 102.7 days and 113.09 days, respectively, during 2018 and 2017. As a result of the above, our daily operation has to rely on our internal resources, bank borrowings and loans from shareholders to maintain our cash flow and satisfy the needs of our daily operations.

 

If we fail to manage the timing difference between receipt of customer payments and supplier payments, or if the timing difference is further aggravated, we may have to resort to reserve further funds from our internal resources and/or obtain banking facilities and/or shareholder loans to meet our payment obligations, which may not be readily available, or if available on reasonable economic terms and our financial condition may be materially and adversely affected as a result.

 

We rely on subcontractors to handle a proportion of our trucking services. Any delay or failure in their services would adversely affect our operations and financial results.

 

We subcontract a portion of our trucking services, specifically delivery orders from customers with irregular delivery schedules, to external transportation companies. For the nine months ended September 30, 2019 and 2018, subcontracting charges incurred were 58.5% and 35.9% of transportation costs, respectively. For the years ended December 31, 2018 and 2017, subcontracting charges incurred by us were approximately 41% and 33% of our total transportation costs, respectively. Any significant increase in the service fees charged by our subcontractors may have an adverse impact on our financial results. See “Business – Subcontracting Arrangement.”

 

There is no assurance that we will be able to monitor the performance of our subcontractors as directly and efficiently as with our own staff. If their performance is below our requisite standards or those of our customers, these sub-standard services may adversely damage our business reputation, cause our customers to deduct our service fees, negatively affect the relationship with our customers and potentially expose us to litigations and claims from our customers. Further, we may incur additional costs for sourcing alternative services providers at a price higher than we originally anticipated. This could adversely affect the profitability of our business.

 

Notwithstanding the stable business relationship with our subcontractors, there is no assurance that we would be able to maintain such a relationship with them in the future. There is also no assurance that we would be able to find alternative subcontractors with the requisite expertise, experience and capability that can meet our business needs and tight delivery schedules with competitive prices and acceptable terms of service in a timely manner. In addition, we are not sure that our all customers will allow us to subcontract our business in the future. In such event, our ability to complete our trucking services on time with effective cost could be impaired, thereby damaging our business reputation and adversely affecting our operations and financial results.

 

Difficulty in obtaining material, equipment, goods and services from our vendors and suppliers could adversely affect our business.

 

We are dependent upon our suppliers for certain products and materials, including our tractors and trailers. We manage our over-the-road fleet to a five-year trade cycle with the current average age-of-fleet of our vehicles at approximately three years. Accordingly, we rely on suppliers of our trucks and truck components to maintain the age of our fleet. We believe that we have positive relationships with our suppliers and are generally able to obtain favorable pricing and other terms from such parties. If we fail to maintain these relationships with our suppliers, or if our suppliers are unable to provide the products and materials we need or undergo financial hardship, we could experience difficulty in obtaining needed goods and services because of production interruptions, limited material availability or other reasons. Subsequently, our business and operations could be adversely affected.

 

The trucking services and transportation industry in the PRC is highly competitive and fragmented, which subjects us to competitive pressures pertaining to pricing, capacity and service.

 

Our operating segments compete with many truckload carriers, certain railroads, logistics, brokerage, freight forwarding and other transportation companies. The transportation market in the PRC is highly competitive and fragmented. Some of our competitors may have greater access to equipment, a larger fleet, a wider range of services, preferential dedicated customer contracts, greater capital resources or other competitive advantages. Numerous competitive factors could impair our ability to maintain or improve our profitability. These factors include the following:

 

  Many of our competitors periodically reduce their freight rates to gain business, especially during times of reduced growth in the economy. This may make it difficult for us to maintain or increase freight rates, or may require us to reduce our freight rates. Additionally, it may limit our ability to maintain or expand our business.

 

  Since some of our customers also operate their own private trucking fleets, they may decide to transport more of their own freight.

  

  Many customers periodically solicit bids from multiple carriers for their shipping needs, despite the existence of dedicated contracts, which may depress freight rates or result in a loss of business to our competitors.

 

  The continuing trend toward consolidation in the trucking industry may result in more large carriers with greater financial resources and other competitive advantages, with which we may have difficulty competing.

 

9

 

 

  Higher fuel prices and higher fuel surcharges to our customers may cause some of our customers to consider freight transportation alternatives, including rail transportation.

 

  Advancements in technology may necessitate that we increase investments in order to remain competitive, and our customers may not be willing to accept higher freight rates to cover the cost of these investments.

 

  Competition from freight logistics and brokerage companies may negatively impact our customer relationships and freight rates.

 

  Smaller carriers may build economies of scale with procurement aggregation providers, which may improve such carriers’ abilities to compete with us.

 

The truckload transportation industry is affected by economic and business risks that are largely beyond our control.

 

The truckload industry is highly cyclical, and our business is dependent on a number of factors that may have a negative impact on our operating results, many of which are beyond our control. We believe that some of the most significant factors beyond our control that may negatively impact our operating results are economic changes that affect supply and demand in transportation markets, such as:  

 

  changes in customers’ inventory levels, including shrinking product/package sizes, and in the availability of funding for their working capital;

 

  commercial driver shortages;

 

  industry compliance with an ongoing regulatory environment;

 

  excess truck capacity in comparison with shipping demand; and

 

  downturns in customers’ business cycles, which may be caused by declines in consumer spending.

 

The risks associated with these factors are heightened when the Chinese economy is weakened. Some of the principal risks during such times are as follows:

 

  low overall freight levels, which may impair our asset utilization;

 

  customers with credit issues and cash flow problems;

 

  changing freight patterns resulting from redesigned supply chains, resulting in an imbalance between our capacity and customer demand; and

 

  customers bidding out freight or selecting competitors that offer lower rates, in an attempt to lower their costs, forcing us to lower our rates or lose freight.  

 

Economic conditions that decrease shipping demand or increase the supply of capacity in the truckload transportation industry can exert downward pressure on rates and equipment utilization, thereby decreasing asset productivity. Declining freight levels and rates, a prolonged recession or general economic instability could result in declines in our results of operations, which declines may be material.

 

We also are subject to cost increases outside our control that could materially reduce our profitability if we are unable to increase our rates sufficiently. Such cost increases include, but are not limited to, fuel and energy prices, driver wages, taxes and interest rates, tolls, license and registration fees, insurance premiums, regulations, revenue equipment and related maintenance costs and healthcare and other benefits for our associates. We cannot predict whether, or in what form, any such cost increase or event could occur. Any such cost increase or event could adversely affect our profitability.

 

In addition, events outside our control, such as strikes or other work stoppages at our facilities or at customer, port, border or other shipping locations, weather, actual or threatened armed conflicts or terrorist attacks, efforts to combat terrorism, military action against a foreign country or group located in a foreign country or heightened security requirements could lead to reduced economic demand, reduced availability of credit or temporary closing of shipping locations. Such events or enhanced security measures in connection with such events could impair our operations and result in higher operating costs.

 

We are, to a certain extent, dependent on the consumer and retail industry in the PRC.

 

We mainly provide trucking services to our customers in the logistics industry, some of whom ultimately provide logistics services to end customers in the retail and consumer industry in the PRC. As such, our business performance will, to a certain extent, be affected by our customers’ business performance and the retail and consumer industry in the PRC. Although these customers of ours who are consumer goods delivery services providers may not have contributed substantially to our total revenue in the past two years, if these customers’ sales in the PRC decline, such decline may likely lead to a corresponding decrease in demand for our services. Furthermore, as we expand our business, we may solicit new customers who are consumer goods delivery services providers or strengthen our relationships with this type of existing customers, which may lead to stronger reliance on these customers. Any adverse developments in our customers’ business performance could therefore materially and adversely affect our business, financial condition and results of operations.

 

10

 

 

We may not be able to implement all or any of our business plans successfully.

 

As part of our business strategies, we plan to expand our own fleet of delivery vehicles and labor force, expand our sales and marketing network and establish an information technology system which can facilitate our preparation of delivery routes and schedules and enable tracking and monitoring of the status of delivery by our self-owned trucking vehicles and subcontractors. Such future plan is developed based on a number of assumptions, forecasts and commitment of our management. We may not succeed in executing our business strategies due to a number of reasons, including the following:

 

we may fail to acquire delivery vehicles at our expected prices or recruit a sufficient number of skilled drivers and employees to align with our expansion;
     
we may not have sufficient financial resources available;
     
we may fail to adapt ourselves to the information technology system;
     
we may fail to expand our sales and marketing network;
     
we may fail to meet our customers’ demands for our trucking services; and
     
we may fail to reach the targets we expect from our expansion and business strategies.

 

If we fail to successfully implement our business strategies, we may not be able to maintain our growth rate and our business, financial condition and results of operations may be materially and adversely affected.

 

Expanding our self-owned vehicle fleet may result in a significant increase in our depreciation expenses.

 

We intend to expand the scale of our own vehicle fleet in order to accommodate potential new business opportunities. Such expansion of our self-owned vehicle fleet may result in a significant increase in our depreciation expenses, which may in turn materially and adversely affect our business, financial condition and results of operations.

 

Our operation is exposed to disruptions due to bad weather, possible occurrences of natural disasters, epidemics and other diseases and uncertainties, traffic congestions and public civil movements.

 

As we provide trucking services, any significant disruption in traffic due to severe traffic congestions, weather conditions or disturbances such as public civil movements, flash floods, or breakdown in major road infrastructure may lead to a reduction in and/or delay of our services. Such service interruptions may adversely affect our service quality in meeting our customers’ KPIs requirements and negatively affect our relationship with our customers. Further, we may have to engage additional delivery vehicles from other transportation companies to maintain our service operations. The occurrence of any of the foregoing events may adversely affect our business, financial condition and results of operations.

 

An increase in fuel prices may reduce profitability.

 

The provision of trucking services is highly reliant on the availability of the appropriate fuel and its cost and an increase in fuel prices may increase our costs. During the nine months ended September 30, 2019 and 2018 and two years ended December 31, 2018 and 2017, our fuel costs accounted for approximately 13.6%, 23.1%, 20.9% and 23.1% of our transportation costs, respectively.

 

The cost of fuel can fluctuate significantly and is subject to many economic and political factors that are beyond our control, including but not limited to the political instability in oil-producing regions. According to Frost & Sullivan report issued in July 2019, while diesel fuel price has decreased during 2017 to RMB 5,846.1 (approximately $898.5) per ton, it is expected that the diesel price will gradually increase and will reach RMB 7,261.5 (approximately $1,056.1) per ton in 2021, due to the anticipated oil production cut by the Organization of the Petroleum Exporting Countries and other oil production countries in the coming years. Without a corresponding increase in our transportation rates when the price of fuel oil surges, our profitability may be adversely affected.

 

11

 

  

Our service agreements with our customers allow us to adjust our service fees to some extent when the fuel prices fluctuate significantly. However, if the fluctuations fall within the acceptable range, the service fees cannot be adjusted, and we would not be able to pass the increased cost of fuel oil to our customers. Therefore, we are still exposed to the risk of the fuel price fluctuation which may affect our profitability.

 

We may experience labor shortage or unrest.

 

Our trucking services involve a substantial amount of labor force. As of the date of this prospectus, we have a total of 185 drivers which accounted for approximately 87% of our total workforce.  While we have not experienced any significant labor shortage, we may face such problem in the future. We may be required to increase the wages for our workers as a result of changes in the labor market conditions or industry practices.

 

We expect that the wage levels of our employees will continue to be determined in accordance with the prevailing market rates in the relevant regions in the PRC as well as the performance of the relevant employees in the foreseeable future. There is no assurance that we will not face labor unrest or we do not have to adjust the wages upward for our employees demanding higher wages from us. Labor unrest will disrupt our services and the higher wages will result in increased services costs for us. Should we fail to increase our service prices to offset the additional labor costs in a timely manner or fail to manage labor shortage or labor unrest, our business, operation and financial performance could be adversely affected.

 

Our customers could become our competitors.

 

Many of our customers are logistic companies which have the capability and financial resources to diversity and own their own vehicle fleet. These customers may also continue to evaluate whether to own their vehicle fleet or engage other transportation companies to provide the logistics services. In the event that our customers own their vehicle fleet, such customers could reduce or eliminate their need of our trucking services, which would subsequently result in a reduction of our revenue and would adversely affect our business and results of operations.

 

We may not be familiar with new regions or markets we enter and may not be successful in offering new products and services or maintain our current growth.

 

The growth of our company was based on the services we currently provided to existing markets. The revenue growth rate was 34.1% and 28.8%, respectively, for fiscal years 2018 and 2017. Comparing to the nine months ended September 30, 2018, the revenue was increased by 5.9% for the nine months ended September 30, 2019. We may expand our business and enter other regional markets in the future. However, we may be unable to replicate our current success in new markets. In expanding our business, we may enter markets in which we have limited, or no, experience. We may not be familiar with the local business and regulatory environment and we may fail to attract a sufficient number of customers due to our limited presence in that region. In addition, competitive conditions in new markets may be different from those in our existing markets and may make it difficult or impossible for us to generate high income in these new markets. If we are unable to manage these and other difficulties in our expansion into other regions in China, our prospects and results of operations may be adversely affected.

 

12

 

 

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

 

Our results of operations, including our operating revenue, expenses and other key metrics, may vary significantly in the future and period-to-period comparisons of our operating results may not be meaningful. Accordingly, the results for any one quarter are not necessarily an indication of future performance. Our financial results may fluctuate due to a variety of factors, some of which are outside of our control and, as a result, may not fully reflect the underlying performance of our business. Fluctuation in our operational results may adversely affect the price of our ordinary shares. Factors that may cause fluctuations in our quarterly results include:

 

  our ability to attract new customers, maintain relationships with existing customers, and expand into new territories in China;
     
  the amount and timing of operating expenses related to acquiring customers and the maintenance and expansion of our business, operations and infrastructure;
     
  general economic, industry and market conditions in China;
     
  our emphasis on customer experience instead of near-term growth; and
     
  the timing of expenses related to the development or acquisition of technologies or businesses and potential future charges for impairment of goodwill from acquired technologies or businesses.

 

If we fail to promote and maintain our brand in an effective and cost-efficient way, our business and results of operations may be harmed.

 

We believe that developing and maintaining awareness of our brand effectively is critical to attracting new and retaining existing customers. Our efforts to build our brand have caused us to incur significant expenses, and it is likely that our future marketing efforts will require us to incur significant additional expenses. 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 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.

 

If labor costs in the PRC increase substantially, our business and costs of operations may be adversely affected.

 

In recent years, the Chinese economy has experienced inflation and labor cost increases. Average wages are projected to continue to increase. Further, under PRC law we are required to pay various statutory employee benefits, including pensions, 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. If we are unable to control our labor costs or pass such increased labor costs on to our customers by increasing the price of our products and services, our financial condition and results of operations may be adversely affected.

 

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

 

As we continue to experience growth, we believe our success depends on the efforts and talents of our employees, including experienced drivers, financial personnel and marketing professionals. Our future success depends on our continued ability to attract, develop, motivate and retain highly qualified and skilled employees. Competition for highly skilled 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. Many 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 expenses in hiring and training their replacements, and the quality of our services and our ability to serve customers could diminish, resulting in a material adverse effect on our business.

 

Our business depends on the continued efforts of our senior management, particularly Mr. Jinlong Yang. If Mr. Yang, or one or more other 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 continuing services of our senior management, particularly Mr. Jinlong Yang, our Chairman and Chief Executive Officer, and our other executive officers named in this prospectus. While we have provided 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 key executives of our subsidiaries in China, 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 us and our current or former officers, 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. 

 

13

 

 

Our executive officers have no prior experience in operating a U.S. public company, and their inability to operate the public company aspects of our business could harm us.

 

Our executive officers have no experience in operating a U.S. public company, which makes our ability to comply with applicable laws, rules and regulations uncertain. Our failure to comply with all laws, rules and regulations applicable to U.S. public companies could subject us or our management to regulatory scrutiny or sanction, which could harm our reputation and share price.

 

From time to time we may evaluate and potentially consummate acquisitions or alliances, which could require significant management attention, disrupt our business, adversely affect our financial results, be unsuccessful or fail to achieve the desired result.

 

We plan to evaluate and consider strategic transactions, combinations, acquisitions or alliances to enhance our existing business or develop new products and services. 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 the transaction, we may be unable to obtain the benefits or avoid the difficulties and risks of such a transaction.

 

Any acquisition or alliance 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 products;
     
  difficulties in retaining relationships with customers, employees and suppliers of the acquired business;
     
  regulatory risks; and
     
  liability for activities of the acquired business before the acquisition, including patent, copyright and trademark infringement claims, violations of laws, commercial disputes, tax liabilities and other known and unknown liabilities.

 

Any future acquisitions or alliances may not be successful. Furthermore, we may not benefit from our business strategy, nor generate sufficient revenue to offset the associated costs or may otherwise not result in the intended benefits. In addition, we cannot assure you that any future acquisition of, or alliance with respect to, new businesses or technology will lead to the successful development of new or enhanced services or that any new or enhanced services, if developed, will achieve market acceptance or prove to be profitable.

 

We may need additional capital, and financing may not be available on terms acceptable to us, or at all.

 

Although our current cash and cash equivalents, anticipated cash flows from operating activities and the proceeds from this offering will be sufficient to meet our anticipated working capital requirements and capital expenditures in the ordinary course of business for at least 12 months following this offering, there is a risk that we may need additional cash resources in the future to fund our growth plans or if we experience adverse changes in business conditions or other developments. We may also need additional cash resources in the future if we find and wish to pursue opportunities for new investments, acquisitions, capital expenditures or similar actions. If we determine that our cash requirements exceed the amount of cash and cash equivalents we have on hand at the time, we may seek to issue equity or debt securities or obtain credit facilities. We cannot assure you that financing will be available in amounts or on terms acceptable to us, if at all. The issuance and sale of additional equity would result in further dilution to our shareholders.

 

  default and foreclosure on our assets if our operating revenue is insufficient to repay debt obligations;

 

  acceleration of obligations to repay the indebtedness (or other outstanding indebtedness), even if we make all principal and interest payments when due, if we breach any covenants that require the maintenance of certain financial ratios or reserves without a waiver or renegotiation of that covenant;

  

  our inability to obtain necessary additional financing if the debt security contains covenants restricting our ability to obtain such financing while the debt security is outstanding;

 

14

 

  

  diverting a substantial portion of cash flow to pay principal and interest on such debt, which would reduce the funds available for expenses, capital expenditures, acquisitions and other general corporate purposes; and
     
  creating potential limitations on our flexibility in planning for and reacting to changes in our business and in the industry in which we operate. 

 

The occurrence of any of these risks could adversely affect our operations or financial condition. 

 

We will be subject to changing laws, rules and regulations in the U.S. regarding regulatory matters, corporate governance and public disclosure that will increase both our costs and the risks associated with non-compliance.

 

Following this offering, we will be subject to rules and regulations by various governing bodies and self-regulatory organizations, including, for example, the Securities and Exchange Commission  and The Nasdaq Stock Market, which are charged with the protection of investors and the oversight of companies whose securities are publicly traded, and to new and evolving regulatory measures under applicable law. Our efforts to comply with new and changing laws and regulations have resulted in and are likely to continue to result in increased general and administrative expenses and a diversion of management time and attention from revenue-generating activities to compliance activities.

 

Moreover, because these laws, regulations and standards are subject to varying interpretations, their application in practice may evolve over time as new guidance becomes available. This evolution may result in continuing uncertainty regarding compliance matters and additional costs necessitated by ongoing revisions to our disclosure and governance practices. If we fail to address and comply with these regulations and any subsequent changes, we may be subject to penalty and our business may be harmed.  

 

Our business is subject to risks related to lawsuits and other claims brought by our clients or business partners. If the outcomes of these proceedings are adverse to us, it could have a material adverse effect on our business, results of operations and financial condition.

 

We are subject to lawsuits and other claims in the ordinary course of our business. We are currently not involved in any lawsuits with any of our customers. However, claims arising out of actual or alleged violations of law could be asserted against us by individuals, companies, governmental or other entities in civil, administrative or criminal investigations and proceedings. These claims could be asserted under a variety of laws and regulations, including but not limited to contract laws, consumer protection laws or regulations, intellectual property laws, environmental laws, and labor and employment laws. These actions could expose us to adverse publicity and to monetary damages, fines and penalties, as well as suspension or revocation of licenses or permits to conduct business. Even if we eventually prevail in these matters, we could incur significant legal fees or suffer reputational harm, which could have a material adverse effect on our business and results of operations as well as our future growth and prospects. 

 

We are subject to extensive environmental laws and regulations, and the costs related to compliance with, or our failure to comply with, existing or future laws and regulations, could adversely affect the business and results of operations.

 

Our operations are subject to national and local laws and regulations relating to the protection of the environment. Sanctions for noncompliance may include revocation of permits, corrective action orders, significant administrative or civil penalties and criminal prosecution. In recent years, the PRC government has strengthened the regulations of environmental protection by enacting new laws and modifying existing laws. Our business involves environmental management and issues typically associated with fuel consumption. We have not received any non-compliance notice or warning from the government regarding environmental violations. However, the PRC government may pass new legislation or amend current laws and regulations and set higher requirements and standards for vehicle operations. Our cost of complying with environmental laws and regulations may increase and we may assign more personnel for environmental compliance. As a result, our financial conditions and results of operation 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.

 

In accordance with the relevant laws and regulations in jurisdictions in which we operate, we are required to maintain various approvals, licenses and permits to operate our business, including but not limited to business license, road transport business license. These approvals, licenses and permits are obtained upon satisfactory compliance with, among other things, the applicable laws and regulations.

 

As of the date of this prospectus, we have obtained the business license and road transport business license, but there can be no assurance that we will be able to obtain, renew and/or convert all of the approvals, licenses and permits required for our existing business operations upon their expiration in a timely manner or at all, which could adversely affect our business operations.

 

Our business may be materially and adversely affected if our Chinese subsidiaries declare bankruptcy or become subject to a dissolution or liquidation proceedings.

 

The Enterprise Bankruptcy Law of China provides that an enterprise may be liquidated if the enterprise fails to settle its debts as and when they fall due and if the enterprise’s assets are, or are demonstrably insufficient to clear such debts. Our PRC subsidiaries hold the bulk of the assets that are important to our business operations. If any of our PRC subsidiaries gets involved in a voluntary or involuntary liquidation proceeding, unrelated third-party creditors may claim rights to some or all of these assets, thereby hindering our ability to operate our business, which could materially or adversely affect our business, financial condition and results of operations.

 

15

 

 

Any failure to protect our own intellectual property rights could impair our brand, negatively impact our business or both.

 

We currently own 21 PRC patents related to technologies used in connection with trucking services. We also own one PRC trademark and 16 PRC copyright registrations. Our intellectual property rights are key to our operations and business prospects.

 

Our success and ability to compete also depend in part on protecting our own intellectual property. We rely on a combination of patents, copyrights, trade secrets, trademarks and other rights, as well as confidentiality procedures and contractual provisions to protect our proprietary technology, processes and other intellectual property. However, the steps we take to protect our intellectual property rights may be inadequate. We have only filed patent applications in China and we have not acquired any related international patent rights by filing pursuant to the Patent Cooperation Treaty. Our patents are under no protections outside of China.

 

Third parties may seek to challenge, invalidate or circumvent our patents, copyrights, trade secrets, trademarks and other rights or applications for any of the foregoing. In order to protect our intellectual property rights, we may be required to spend significant resources. Litigation brought to protect and enforce our intellectual property rights could be costly, time-consuming and distracting to management. Our failure to secure, protect and enforce our intellectual property rights could adversely affect our brand and impact our business.

 

We may be sued by third parties for alleged infringement of their proprietary rights, which could harm our business.

 

Our competitors, as well as other entities and individuals, may own or claim to own intellectual property relating to our industry. From time to time, a third-party provider may claim that we are infringing on their intellectual property rights. We may, however, be unaware of the intellectual property rights that others may claim over some or all of our applications, technology or services. Any claims or litigation could cause us to incur significant expenses and, if successfully asserted against us, could require that we pay substantial damages or ongoing royalty payments, restrict us from conducting our business or require that we comply with other unfavorable terms. We may also be obligated to indemnify parties or pay substantial settlement costs, including royalty payments, in connection with any such claim or litigation and to obtain licenses, modify applications or refund fees, which could be costly. Even if we were to prevail in such a dispute, any litigation regarding our intellectual property could be costly and time-consuming and divert the attention of our management from our business operations.

 

We have identified material weaknesses in our internal accounting controls, and if we fail to implement and maintain an effective system of internal controls or fail to remediate the material weaknesses in our internal control over financial reporting that have been identified, we may be unable to accurately report our results of operations or prevent fraud or fail to meet our reporting obligations, and customer confidence and the market price of our ordinary shares may be materially and adversely affected.

 

Prior to this offering, we were a private company based in China with limited accounting personnel and other resources and with limited experience in establishing and maintaining internal accounting controls and procedures in a manner appropriate for a U.S. listed and reporting public company. Our independent registered public accounting firm has not conducted an audit of our internal control over financial reporting. However, in preparing our consolidated financial statements as of and for the years ended December 31, 2018 and 2017, we and our independent registered public accounting firm have identified material weaknesses in our internal control over financial reporting, as defined in the standards established by the Public Company Accounting Oversight Board of the United States (“PCAOB”) and other control deficiencies. The material weaknesses identified related to (i) a lack of accounting staff and resources with appropriate knowledge of generally accepted accounting principles in the United States (“U.S. GAAP”) and SEC reporting and compliance requirements; and (ii) a lack of independent directors, an audit committee and internal audit function to establish formal risk assessment process and internal control framework. We are seeking to remediate these material weaknesses, but the implementation of these measures may not fully address the material weaknesses in our internal control over financial reporting. Our failure to correct the material weaknesses or our failure to discover and address any other material weaknesses or control deficiencies could result in inaccuracies in our consolidated financial statements and could also impair our ability to comply with applicable financial reporting requirements and related regulatory filings on a timely basis. As a result, our business, financial condition, results of operations and prospects, as well as the trading price of our ordinary shares, may be materially and adversely affected. Moreover, ineffective internal control over financial reporting significantly hinders our ability to prevent fraud.

 

Upon completion of this offering, we will become a public company in the United States subject to the Sarbanes-Oxley Act of 2002. Section 404 of this Act will require that we include a report of management on our internal control over financial reporting in our annual report on Form 20-F beginning with our annual report for the fiscal year ending December 31, 2021. In addition, once we cease to be an “emerging growth company,” as such term is defined in the Jumpstart Our Business Startups Act (“JOBS Act”), our independent registered public accounting firm must attest to and report on the effectiveness of our internal control over financial reporting. Our management may conclude that our internal control over financial reporting is not effective. Moreover, even if our management concludes that our internal control over financial reporting is effective, our independent registered public accounting firm, after conducting its own independent testing, may issue a report that is qualified if it is not satisfied with our internal controls or the level at which our controls are documented, designed, operated or reviewed, or if it interprets the relevant requirements differently from us. In addition, after we become a public company, our reporting obligations may place a significant strain on our management, operational and financial resources and systems for the foreseeable future. We may be unable to complete our evaluation testing and any required remediation in a timely manner.

 

Certain data and information in this prospectus were obtained from third-party sources and were not independently verified by us.

 

We have engaged Frost & Sullivan to prepare a commissioned industry report that analyzes the PRC transportation industry. Information and data relating to the PRC transportation industry have been derived from Frost & Sullivan’s industry report. Statistical data included in the Frost & Sullivan report also include projections based on a number of assumptions. The transportation industry may not grow at the rate projected by market data, or at all. Any failure of the PRC transportation industry to grow at the projected rate may have a material adverse effect on our business and the market price of our ordinary shares. Furthermore, if any one or more of the assumptions underlying the market data is later found to be incorrect, actual results may differ from the projections based on these assumptions.

16

 

 

We have not independently verified the data and information contained in the Frost & Sullivan report or any third-party publications and reports Frost & Sullivan has relied on in preparing its report. Data and information contained in such third-party publications and reports may be collected using third-party methodologies, which may differ from the data collection methods used by us. In addition, these industry publications and reports generally indicate that the information contained therein is believed to be reliable, but do not guarantee the accuracy and completeness of such information.

 

Insurance and claims expenses could significantly reduce our earnings.

 

Although we maintain auto insurance for our vehicles, our future insurance and claims expenses might exceed historical levels, which could reduce our earnings. We maintain a high deductible for a portion of our claims exposure resulting from auto liability. Estimating the number and severity of claims, as well as related judgment or settlement amounts is inherently difficult. This, along with legal expenses, incurred but not reported claims and other uncertainties can cause unfavorable differences between actual claim costs and our reserve estimates. We reserve for anticipated losses and expenses and periodically evaluate and adjust our claims reserves to reflect our experience. However, ultimate results may differ from our estimates, which could result in losses over our reserved amounts.

 

We maintain insurance with licensed insurance carriers above the amounts which we retain. Although we believe our aggregate auto insurance limits should be sufficient to cover reasonably expected claims, it is possible that the amount of one or more claims could exceed our aggregate coverage limits. If any claim were to exceed our coverage, we would bear the excess, in addition to our other retained amounts. Insurance carriers have raised premiums for many businesses, including transportation companies. As a result, our insurance and claims expense could increase, or we could raise our deductible when our policies are renewed or replaced. Our operating results and financial condition could be materially and adversely affected if (i) cost per claim, premiums, or the number of claims significantly exceeds our estimates, (ii) we experience a claim in excess of our coverage limits, (iii) our insurance carriers fail to pay on our insurance claims or (iv) we experience a claim for which coverage is not provided.

 

Any failure to pay the full amount of taxes may subject us to penalty and materially and adversely affect our business, financial condition and results of operation.

 

In accordance with the Law of the PRC on the Administration of Tax Collection and its Implementation Regulations, where a taxpayer or a withholding agent fails to pay or underpays the amount of tax that should be paid or remitted within the specified time, the tax authorities shall order the taxpayer or withholding agent to pay or remit the tax within the specified time limit, and impose a penalty for late payment on a daily basis at the rate of 0.05% of the amount of tax in arrears from the date the tax payment is defaulted. If the taxpayer or withholding agent still fails to do so on the expiration of the time limit, the tax authorities may recover such unpaid taxes by adopting compulsory enforcement measures, and impose a fine of not less than 50 percent but not more than five times the amount of tax the taxpayer or withholding agent fails to pay or underpays or fails to remit. Furthermore, the taxation authorities shall also announce the tax payments defaulted by taxpayers regularly. See “Regulations - Regulations Relating to Taxation in the PRC – Tax Collection and Payment.”

 

Affected by polity factors such as credit tightening, some of our accounts receivable that met the collection conditions have not been recovered on time, which has an adverse impact on our liquidity. As a result, MingZhu has completed the procure for tax declaration, but fails to pay corporate income taxes for the year ended December 31, 2018 in the amount of approximately $881,740 (RMB 6,302,411.31) on time. We are actively communicating with the local tax authorities, and making efforts to pay the balance as soon as possible. Meanwhile, we have accrued a late payment fees of approximately $53,345 (RMB 381,295.88) for the foresaid unpaid tax as of September 30, 2019.

 

As of the date of this prospectus, we have not received any order or notice from the local tax authorities to set a specific time limit for us to pay the outstanding taxes referenced above, or impose any penalty for the late tax payment, but we cannot assure you that we will not be subject to any order to pay the taxes within a specific time limit. Despite our efforts to minimize the impact of this matter on us, there are uncertainties whether we will have enough funds to make the tax payment within the time limit set by the tax authorities. If we fail to do so, the tax authorities may recover such unpaid taxes and late payment fees by adopting compulsory enforcement measures such as withholding the taxes from our bank account, or sealing up, auctioning or disposing of our properties. In addition, the tax authorities may even impose a fine on us as prescribed by the laws. If any of the above were to occur, our business, operations and financial position would be materially and adversely affected.

 

We do not have any business insurance coverage.

 

Insurance companies in China currently do not offer an extensive array of insurance products as insurance companies in more developed economies do. Currently, we do not have any business liability or disruption insurance, except auto insurances, 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. 

 

We may have exposure to greater than anticipated tax liabilities.

 

We are subject to enterprise income tax, value-added tax, and other taxes in each province and city in China where we have operations. Our tax structure is subject to review by various local tax authorities. The determination of our provision for income tax and other tax liabilities requires significant judgment. In the ordinary course of our business, there are many transactions and calculations where the ultimate tax determination is uncertain. Although we believe our estimates are reasonable, the ultimate decisions by the relevant tax authorities may differ from the amounts recorded in our financial statements and may materially affect our financial results in the period or periods for which such determination is made.

 

17

 

 

Risks Related to Doing Business in China

 

Changes in the PRC’s political, economic and governmental policies may have an adverse impact on our operations.

 

All of our operations are currently located in the PRC and all of our revenue was generated in the PRC during the nine months ended September 30, 2019 and years of 2018 and 2017. We expect that the PRC will continue to be our principal market and place of operation. Accordingly, our business, financial condition and results of operations are subject to political, economic and legal developments in the PRC to a significant degree. The PRC’s economy differs from the economies of most developed countries in many aspects, including the extent of government involvement, growth rate, control of foreign exchange, allocation of resources and capital investment. We cannot assure there will not be any unfavorable changes in the PRC’s political, economic and governmental policies and measures that could impact the industries in which we operate, which could in turn diminish the demand for our services.

 

There are uncertainties regarding the interpretation and enforcement of PRC laws and regulations.

 

The PRC legal system is based on written statutes and their legal interpretations by the Standing Committee of the National People’s Congress. Previous court decisions may be cited for reference but have limited precedential value. Since 1979, the PRC government has been developing a comprehensive system of commercial laws, and considerable progress has been made in introducing laws and regulations dealing with economic matters such as foreign investment, corporate organization and governance, commerce, taxation and trade. However, as these laws and regulations are relatively new, and due to the limited volume of published cases and their non-binding nature, interpretation and enforcement of these laws and regulations involve uncertainties.

 

Furthermore, the PRC legal system is based in part on government policies and internal rules, some of which are not published on a timely basis or at all and may have a retroactive effect. As a result, we may not be aware of our violation of any of these policies and rules until sometime after the violation. In addition, any administrative and court proceedings in China may be protracted, resulting in substantial costs and diversion of resources and management attention.

 

Any failure to comply with relevant regulations relating to social insurance and housing provident fund may subject us to penalty and materially and adversely affect our business, financial condition and results of operations.

 

In accordance with the PRC Social Insurance Law and the Regulations on the Administration of Housing Fund and other relevant laws and regulations, China has established a social insurance system and other employee benefits including basic pension insurance, basic medical insurance, work-related injury insurance, unemployment insurance, maternity insurance, housing fund, and a handicapped employment security fund, or collectively the Employee Benefits. An employer shall pay the Employee Benefits for its employees in accordance with the rates provided under relevant regulations and shall withhold the social insurance and other Employee Benefits that should be assumed by the employees. For example, an employer that has not made social insurance contributions at a rate and based on an amount prescribed by the law, or at all, may be ordered to rectify the non-compliance and pay the required contributions within a stipulated deadline and be subject to a late fee of up to 0.05% or 0.2% per day, as the case may be. If the employer still fails to ratify the failure to make social insurance contributions within the stipulated deadline, it may be subject to a fine ranging from one to three times of the amount overdue.

 

Under the Social Insurance Law and the Regulations on the Administration of Housing Fund, our PRC subsidiaries shall register with local social insurance agencies and register with applicable housing fund management centers and establish a special housing fund account in an entrusted bank. Both our PRC subsidiaries and their employees are required to pay the Employee Benefits.

 

Some of our PRC subsidiaries are in the process of completing the social insurance registration and the housing fund registration, and we have only made social insurance payments and housing provident fund contributions for some of our PRC employees, and did not make contributions in full for the social insurance fund and housing provident fund for our employees as required under the relevant PRC laws and regulations. Although we have not received any order or notice from the local authorities nor any claims or complaints from our current and former employees regarding our non-compliance in this regard, we cannot assure you that we will not be subject to any order to rectify non-compliance in the future, nor can we assure you that there are no, or will not be any, employee complaints regarding social insurance payment or housing provident fund contributions against us, or that we will not receive any claims in respect of social insurance payment or housing provident fund contributions under the PRC laws and regulation. In addition, we may incur additional costs to comply with such laws and regulations by the PRC Government or relevant local authorities. Any such development could materially and adversely affect our business, financial condition and results of operations.

 

Non-compliance with labor-related laws and regulations of the PRC may have an adverse impact on our financial condition and results of operation.

 

We have been subject to stricter regulatory requirements in terms of entering into labor contracts with our employees and paying various statutory employee benefits, including pensions, housing fund, medical insurance, work-related injury insurance, unemployment insurance and childbearing insurance to designated government agencies for the benefit of our employees. Pursuant to the PRC Labor Contract Law, or the Labor Contract Law, that became effective in January 2008 and its implementing rules that became effective in September 2008 and was amended in July 2013, employers are subject to stricter requirements in terms of signing labor contracts, minimum wages, paying remuneration, determining the term of employees’ probation and unilaterally terminating labor contracts. In the event that we decide to terminate some of our employees or otherwise change our employment or labor practices, the Labor Contract Law and its implementation rules may limit our ability to affect those changes in a desirable or cost-effective manner, which could adversely affect our business and results of operations. We believe our current practice complies with the Labor Contract Law and its amendments. However, the relevant governmental authorities may take a different view and impose fines on us in such circumstance.

 

18

 

 

As the interpretation and implementation of labor-related laws and regulations are still evolving, we cannot assure you that our employment practice does not and will not violate labor-related laws and regulations in China, which may subject us to labor disputes or government investigations. If we are deemed to have violated relevant labor laws and regulations, we could be required to provide additional compensation to our employees and our business, financial condition and results of operations could be materially and adversely affected.

 

Some of the lease agreements of our leased properties have not been registered with the relevant PRC government authorities as required by PRC law, which may expose us to potential fines.

 

Under PRC law, all lease agreements are required to be registered with the local land and real estate administration bureau. Although failure to do so does not in itself invalidate the leases, the lessees may not be able to defend these leases against bona fide third parties and may also be exposed to potential fines if they fail to ratify such non-compliance within the prescribed time frame after receiving notice from the relevant PRC government authorities. The penalty ranges from RMB1,000 (approximately $139.9) to RMB10,000 (approximately $1,399.0) for each unregistered lease, at the discretion of the relevant authority. As of the date of this prospectus, the lease agreement for our leased building in China has not been registered with the relevant PRC government authorities. In the event that any fine is imposed on us for our failure to register our lease agreements, we may not be able to recover such losses from the lessors.

 

Our rights to use our leased properties could be challenged by property owners or other third parties, which may disrupt our operations and incur relocation costs.

 

 As of the date of this prospectus, the lessors of our leased properties in China have not been able to provide us with valid property ownership certificates or authorizations from the property owners for the lessors to sublease the properties, and we have subleased certain of our leased properties to third parties. There is a risk that such lessors may not have the relevant property ownership certificates or the right to lease or sublease such properties to us, in which case the relevant lease agreements and the sublease agreements may be deemed invalid and we may be forced to vacate these properties. In addition, our usage of the leased properties may be inconsistent with the designated usage, in which case we may not be able to continue to use the leased properties. The above risks could interrupt our business operations and result in relocation costs. Moreover, if our lease agreements are challenged by third parties, it could result in diversion of management attention and cause us to incur costs associated with defending such actions, even if such challenges are ultimately determined in our favor.

 

Fluctuation in the currency exchange rate of RMB may have a material adverse effect on our business, operations and financial position.

 

Our revenue and expenses have been and are expected to continue to be primarily denominated in RMB and we are exposed to the risks associated with the fluctuation in the currency exchange rate of RMB. Should RMB appreciate against other currencies, the value of the proceeds from this offering and any future financings, which are to be converted from US dollar or other currencies into RMB, would be reduced and might accordingly hinder our business development due to the lessened amount of funds raised. On the other hand, in the event of the devaluation of RMB, the dividend payments of our Company, which are to be paid in US dollars after the conversion of the distributable profit denominated in RMB, would be reduced. Hence, substantial fluctuation in the currency exchange rate of RMB may have a material adverse effect on our business, operations and financial position and the value of your investment in the Shares.

 

We are a holding company and our ability to pay dividends is primarily dependent upon the earnings of, and distributions by, our subsidiaries in the PRC.

 

We are a holding company incorporated under the laws of the Cayman Islands with limited liability. No dividends have been paid or declared by our Company. The majority of our business operations are conducted through our subsidiaries in the PRC and hence, our revenue and profit are substantially contributed by our subsidiaries in the PRC.

 

Our ability to pay dividends to our shareholders is primarily dependent upon the earnings of our subsidiaries in the PRC and their distribution of funds to us, primarily in the form of dividends. The ability of our subsidiaries in the PRC to make distributions to us depends upon, among others, their distributable earnings. Under the PRC laws, payment of dividends is only permitted out of accumulated profits according to PRC accounting standards and regulations, and our subsidiaries in the PRC are also required to set aside part of its after-tax profits to fund certain reserve funds that are not distributable as cash dividends. Other factors such as cash flow conditions, restrictions on distributions contained in our PRC subsidiaries’ articles of associations, restrictions contained in any debt instruments, withholding tax and other arrangements will also affect the ability of our subsidiaries in the PRC to make distributions to us. These restrictions could reduce the amount of distributions that we receive from our subsidiaries in the PRC, which in turn would restrict our ability to pay dividends on the Shares. The amounts of distributions that any of our subsidiaries declared and made in the past are not indicative of the dividends that we may pay in the future. There is no assurance that we will be able to declare or distribute any dividend in the future.

 

19

 

 

There are significant uncertainties under the PRC Enterprise Income Tax Law relating to the withholding tax liabilities of our PRC subsidiaries, and dividends payable by our PRC subsidiaries to our offshore subsidiaries may not qualified to enjoy certain treaty benefits. 

 

Under the PRC Enterprise Income Tax Law and its implementation rules, the profits of a foreign-invested enterprise generated through operations, which are distributed to its immediate holding company outside China, will be subject to a withholding tax rate of 10%. Pursuant to a special arrangement between Hong Kong and China, such rate may be reduced to 5% if a Hong Kong resident enterprise owns more than 25% of the equity interest in the PRC company. Our current PRC subsidiaries are wholly owned by our Hong Kong subsidiary, YGMZ (Hong Kong) Limited. Accordingly, YGMZ (Hong Kong) Limited may qualify for a 5% tax rate in respect of distributions from its PRC subsidiaries. Under the Notice of the State Administration of Taxation on Issues regarding the Administration of the Dividend Provision in Tax Treaties promulgated in 2009, the tax payer needs to satisfy certain conditions to enjoy the benefits under a tax treaty. These conditions include: (i) the tax payer must be the beneficial owner of the relevant dividends, and (ii) the corporate shareholder to receive dividends from the PRC subsidiaries must have met the direct ownership thresholds during the 12 consecutive months preceding the receipt of the dividends. Further, the SAT promulgated the Notice on How to Understand and Recognize the “Beneficial Owner” in Tax Treaties in 2009, which limits the “beneficial owner” to individuals, enterprises or other organizations normally engaged in substantive operations, and sets forth certain detailed factors in determining “beneficial owner” status.

 

Entitlement to a lower tax rate on dividends according to tax treaties or arrangements between the PRC central government and governments of other countries or regions is subject to the Administrative Measures for Non-Resident Taxpayers to Enjoy Treatments under Tax Treaties, which provides that non-resident enterprises are not required to obtain pre-approval from the relevant tax authority in order to enjoy the reduced withholding tax. Instead, non-resident enterprises and their withholding agents may, by self-assessment and on confirmation that the prescribed criteria to enjoy the tax treaty benefits are met, directly apply the reduced withholding tax rate, and file necessary forms and supporting documents when performing tax filings, which will be subject to post-tax filing examinations by the relevant tax authorities. As a result, we cannot assure you that we will be entitled to any preferential withholding tax rate under treaties for dividends received from our PRC subsidiaries.

 

The approval of the China Securities Regulatory Commission, or CSRC, may be required in connection with this offering under PRC law, and if required, we cannot assure you that we will be able to obtain such approval.

 

The M&A Rules purport to require offshore special purpose vehicles that are controlled by PRC companies or individuals and that have been formed for the purpose of seeking a public listing on an overseas stock exchange through acquisitions of PRC domestic companies or assets to obtain CSRC approval prior to publicly listing their 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 interpretation and application of such regulations remain unclear. If CSRC approval is required, it is uncertain whether it would be possible for us to obtain the approval, and any failure to obtain or delay in obtaining CSRC approval for this offering would subject us to sanctions imposed by the CSRC and other PRC regulatory agencies.

 

We will not be required to submit an application to the CSRC for the approval of the listing and trading of the ordinary shares on the NASDAQ. However, there are substantial uncertainty as to how the M&A Rules will be interpreted or implemented in the context of an overseas offering, and we 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 our perspective, and hence we may face regulatory actions or other sanctions from the CSRC or other PRC regulatory agencies. These regulatory agencies may impose fines and penalties on our operations in China, limit our ability to pay dividends outside of China, limit our operating privileges in China, delay or restrict the repatriation of the proceeds from this offering into China or take other actions that could have a material adverse effect on our business, financial condition, results of operations and prospects, as well as the trading price of the ordinary shares. The CSRC or other PRC regulatory agencies also may take actions requiring us, or making it advisable for us, to halt this offering before settlement and delivery of the ordinary shares offered hereby. Consequently, if you engage in market trading or other activities in anticipation of and prior to settlement and delivery, you do so at the risk that settlement and delivery may not occur. In addition, if the CSRC or other 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 our ordinary shares.

  

PRC regulations relating to offshore investment activities by PRC residents may limit our PRC subsidiaries’ ability to change their registered capital or distribute profits to us or otherwise expose us or our PRC resident beneficial owners to liability and penalties under PRC laws.

 

In July 2014, China’s State Administration of Foreign Exchange (“SAFE”) promulgated the Circular on Relevant Issues Concerning Foreign Exchange Control on Domestic Residents’ Offshore Investment and Financing and Roundtrip Investment Through Special Purpose Vehicles, or SAFE Circular 37. SAFE Circular 37 requires PRC residents (including PRC individuals and PRC corporate entities as well as foreign individuals that are deemed as PRC residents for foreign exchange administration purpose) to register with SAFE or its local branches in connection with their direct or indirect investment activities. SAFE Circular 37 further requires an amendment to the SAFE registrations in the event of any changes with respect to the basic information of the offshore special purpose vehicle, such as change of a PRC individual shareholder, name and operation term, or any significant changes with respect to the offshore special purpose vehicle, such as increase or decrease of capital contribution, share transfer or exchange, or mergers or divisions. SAFE Circular 37 is applicable to our shareholders who are PRC residents and may be applicable to any offshore acquisitions that we make in the future.

 

20

 

 

If our shareholders who are PRC residents fail to make the required registration or to update the previously filed registration, our PRC subsidiaries may be prohibited from distributing their profits or the proceeds from any capital reduction, share transfer or liquidation to us, and we may also be prohibited from making additional capital contribution into our PRC subsidiaries. In February 2015, SAFE promulgated a Notice on Further Simplifying and Improving Foreign Exchange Administration Policy on Direct Investment, or SAFE Notice 13, effective June 2015. Under SAFE Notice 13, applications for foreign exchange registration of inbound foreign direct investments and outbound overseas direct investments, including those required under SAFE Circular 37, will be filed with qualified banks instead of SAFE. The qualified banks will directly examine the applications and accept registrations under the supervision of SAFE.

 

 Mr. Jinlong Yang, our controlling shareholder, has completed the initial registrations with the local SAFE branch or qualified banks as required by SAFE Circular 37. However, we may not be informed of the identifies of all the PRC residents holding direct or indirect interest in our company, and we cannot provide any assurance that these PRC residents will comply with our request to make or obtain any applicable registrations or continuously comply with all requirements under SAFE Circular 37 or other related rules. The failure or inability of the relevant shareholders to comply with the registration procedures set forth in these regulations may subject us to fines and legal sanctions, such as restrictions on our cross-border investment activities, on the ability of our wholly foreign-owned subsidiaries in China to distribute dividends and the proceeds from any reduction in capital, share transfer or liquidation to us. Moreover, any failure to comply with the various foreign exchange registration requirements described above could result in liability under PRC law for circumventing applicable foreign exchange restrictions. Furthermore, as these foreign exchange regulations are still relatively new and their interpretation and implementation have been constantly evolving, it is unclear how these regulations, and any future regulation concerning offshore or cross-border transactions, will be interpreted, amended and implemented by the relevant government authorities. As a result, our business operations and our ability to distribute profits to you could be materially and adversely affected.

 

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

 

Any funds we transfer to our PRC subsidiaries, either as a shareholder loan or as an increase in registered capital, are subject to approval by or registration with relevant governmental authorities in China regardless of the amount of the transfer. According to the relevant PRC regulations on FIEs in China, capital contributions to our PRC subsidiaries are subject to the filing with the MOFCOM or their respective local branches and registration with a local bank authorized by the State Administration of Foreign Exchange, or SAFE. In addition, (i) any foreign loan procured by our PRC subsidiaries is required to be registered with SAFE or their respective local branches and (ii) our PRC subsidiaries may not procure loans which exceed the difference between their respective total project investment amount and registered capital or twice of their net worth. See “Regulations – Regulation Relating to Funds Transfer to PRC Subsidiaries.” We may not be able to complete such registrations or obtain necessary approvals on a timely basis with respect to future capital contributions or foreign loans by us to our PRC subsidiaries. If we fail to complete such registrations, our ability to use the proceeds of this offering, and to capitalize our PRC operations may be negatively affected, which could adversely affect our liquidity and our ability to fund and expand our business.

 

On March 30, 2015, the SAFE promulgated the Circular on Reforming the Management Approach Regarding the Foreign Exchange Capital Settlement of Foreign-Invested Enterprises, or SAFE Circular 19, which took effect as of June 1, 2015. SAFE Circular 19 launched a nationwide reform of the administration of the settlement of the foreign exchange capitals of FIEs and allows FIEs to settle their foreign exchange capital at their discretion, but continues to prohibit FIEs from using the Renminbi fund converted from their foreign exchange capital for expenditure beyond their business scopes, providing entrusted loans or repaying loans between nonfinancial enterprises. The SAFE issued the Circular on Reforming and Regulating Policies on the Control over Foreign Exchange Settlement of Capital Accounts, or SAFE Circular 16, effective in June 2016. Pursuant to SAFE Circular 16, enterprises registered in China may also convert their foreign debts from foreign currency to Renminbi on a self-discretionary basis. SAFE Circular 16 provides an integrated standard for conversion of foreign exchange under capital account items (including but not limited to foreign currency capital and foreign debts) on a self-discretionary basis which applies to all enterprises registered in China. SAFE Circular 16 reiterates the principle that Renminbi converted from foreign currency-denominated capital of a company may not be directly or indirectly used for purposes beyond its business scope or prohibited by PRC laws or regulations, while such converted Renminbi shall not be provided as loans to its non-affiliated entities. As this circular is relatively new, there remains uncertainty as to its interpretation and application and any other future foreign exchange related rules. Violations of these Circulars could result in severe monetary or other penalties. SAFE Circular 19 and SAFE Circular 16 may significantly limit our ability to use Renminbi converted from the net proceeds of this offering and our concurrent private placement, to invest in or acquire any other PRC companies through our PRC subsidiaries, which may adversely affect our business, financial condition and results of operations.

 

If we are classified as a PRC resident enterprise for PRC enterprise 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 its “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 and overall management over the business, productions, personnel, accounts and properties of an enterprise. In 2009, the State Administration of Taxation, or SAT, issued a circular, known as SAT Circular 82, partially abolished on December 29, 2017, 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 applies only to offshore enterprises controlled by PRC enterprises or PRC enterprise groups, not those controlled by PRC individuals or foreigners, the criteria set forth in the circular may reflect the SAT’s general position on how the “de facto management body” text should be applied in determining the tax resident status of all offshore enterprises. According to SAT 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. 

21

 

 

We believe that, as a Cayman Islands exempted company, our company is not a PRC resident enterprise for PRC tax purposes. 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.” If the PRC tax authorities determine that our company is a PRC resident enterprise for enterprise income tax purposes, we would be subject to PRC enterprise income on our worldwide income at the rate of 25%. Furthermore, we would be required to withhold a 10% tax from dividends we pay to our shareholders that are non-resident enterprises, including the holders of our ordinary shares. In addition, non-resident enterprise shareholders may be subject to PRC tax on gains realized on the sale or other disposition of the ordinary shares, if such income is treated as sourced from within the PRC. Furthermore, if we are deemed a PRC resident enterprise, dividends paid to our non-PRC individual shareholders and any gain realized on the transfer of the ordinary shares by such shareholders may be subject to PRC tax at a rate of 20% (which, in the case of dividends, may be withheld at source by us). These rates may be reduced by an applicable tax treaty, but 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.

  

We face uncertainty with respect to indirect transfers of equity interests in PRC resident enterprises by their non-PRC holding companies.

 

On February 3, 2015, the SAT issued the Public Notice Regarding Certain Corporate Income Tax Matters on Indirect Transfer of Properties by Non-Tax Resident Enterprises, or SAT Bulletin 7. SAT Bulletin 7 extends its tax jurisdiction to transactions involving the transfer of taxable assets through offshore transfer of a foreign intermediate holding company. In addition, SAT Bulletin 7 has introduced safe harbors for internal group restructurings and the purchase and sale of equity through a public securities market. SAT Bulletin 7 also brings challenges to both foreign transferor and transferee (or other person who is obligated to pay for the transfer) of taxable assets, as such persons need to determine whether their transactions are subject to these rules and whether any withholding obligation applies.

 

On October 17, 2017, the SAT issued the Announcement of the State Administration of Taxation on Issues Concerning the Withholding of Non-resident Enterprise Income Tax at Source, or SAT Bulletin 37, which came into effect on December 1, 2017. The SAT Bulletin 37 further clarifies the practice and procedure of the withholding of non-resident enterprise income tax.

 

Where a non-resident enterprise transfers taxable assets indirectly by disposing of the equity interests of an overseas holding company, which is an Indirect Transfer, the non-resident enterprise as either transferor or transferee, or the PRC entity that directly owns the taxable assets, may report such. Indirect Transfer to the relevant tax authority. 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 pays 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. Both the transferor and the transferee may be subject to penalties under PRC tax laws if the transferee fails to withhold the taxes and the transferor fails to pay the taxes.

 

We face uncertainties as to the reporting and other implications of certain past and future transactions where PRC taxable assets are involved, such as offshore restructuring, sale of the shares in our offshore subsidiaries and investments. Our company may be subject to filing obligations or may be taxed if our company is transferor in such transactions, and may be subject to withholding obligations if our company is transferee in such transactions, under SAT Bulletin 7 and/or SAT Bulletin 37. For transfers of shares of our company by investors who are non-PRC resident enterprises, our PRC subsidiaries may be requested to assist in the filing under SAT Bulletin 7 and/or SAT Bulletin 37. As a result, we may be required to expend valuable resources to comply with SAT Bulletin 7 and/or SAT Bulletin 37 or to request the relevant transferors from whom we purchase taxable assets to comply with these circulars, or to establish that our company should not be taxed under these circulars, which may have a material adverse effect on our financial condition and results of operations.

 

Epidemics, acts of war and other disasters may adversely affect our operations.

 

Our business is subject to general economic and social conditions in the PRC. Natural disasters, epidemics and other acts of God which are beyond human control may adversely affect the economy, infrastructure and livelihood of the people of the PRC. Many major cities in the PRC are under threat of flood, earthquake, typhoon, sandstorm or drought. Our business, results of operations and financial condition may be adversely affected if such natural disasters occur. We may be required to disinfect our affected operational premises, which could adversely affect our operations. Even if we are not directly affected by the epidemic, it could slow down or disrupt the level of economic activity generally, which could in turn adversely affect our operating results.

 

In addition, acts of war and terrorist attacks may cause damage or disruption to our operations, employees, markets or clients, any of which could adversely impact our turnover, cost of sales, overall results and financial condition or the market price of the Shares. Potential war or terrorist attacks may also cause uncertainty and cause the business to suffer in ways that we cannot currently predict.

 

22

 

 

Risks Related to Our Ordinary Shares and This Offering

 

An active trading market for our ordinary shares or our ordinary shares may not develop and the trading price for our ordinary shares may fluctuate significantly.

 

We have applied to list our ordinary shares on the Nasdaq. Prior to the completion of this offering, there has been no public market for our ordinary shares, and we cannot assure you that a liquid public market for our ordinary shares will develop. If an active public market for our ordinary shares does not develop following the completion of this offering, the market price and liquidity of our ordinary shares may be materially and adversely affected. The initial public offering price for our ordinary shares was determined by negotiation between us and the underwriters based upon several factors, and we can provide no assurance that the trading price of our ordinary shares after this offering will not decline below the initial public offering price. As a result, investors in our securities may experience a significant decrease in the value of their ordinary shares.

 

We may not maintain our listing on NASDAQ which could limit investors’ ability to make transactions in our securities and subject us to additional trading restrictions.

 

We have applied to list our ordinary shares on Nasdaq. Even if our ordinary shares are approved to be listed on Nasdaq, we cannot assure you that our ordinary shares will continue to be listed on Nasdaq in the future. In order to continue listing our securities on Nasdaq, we must maintain certain financial, distribution and share price levels. Generally, we must (i) maintain a minimum amount in shareholders’ equity (generally above $2,500,000), maintain a minimum market value of listed securities (generally above $35,000,000) or have a minimum net income from operations for the prior year of for two of the preceding years (generally above $500,000); and (ii) a minimum number of publicly held shares (generally greater than 500,000) and a minimum number of public shareholders (generally greater than 300 shareholders). Our ordinary shares also cannot have a bid price of less than $1.00. Moreover, we must comply with certain listing standards regarding the independence of our board of directors and members of our audit committee. We intend to fully comply with these requirements, but we may not continue to be able to meet these requirements in the future.

 

If Nasdaq delists our securities from trading on its exchange and we are not able to list our securities on another national securities exchange, we expect our securities could be quoted on an over-the-counter market. If this were to occur, we could face significant material adverse consequences, including:

 

a limited availability of market quotations for our securities;

 

reduced liquidity for our securities;

 

a determination that our ordinary shares is a “penny stock” which will require brokers trading in our ordinary shares to adhere to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for our securities;

 

23

 

 

a limited amount of news and analyst coverage; and

 

a decreased ability to issue additional securities or obtain additional financing in the future.

 

The National Securities Markets Improvement Act of 1996, which is a federal statute, prevents or preempts the states from regulating the sale of certain securities, which are referred to as “covered securities.” Because we expect that our ordinary shares will be listed on Nasdaq, such securities will be covered securities. Although the states are preempted from regulating the sale of our securities, the federal statute does allow the states to investigate companies if there is a suspicion of fraud, and, if there is a finding of fraudulent activity, then the states can regulate or bar the sale of covered securities in a particular case. Further, if we were no longer listed on Nasdaq, our securities would not be covered securities and we would be subject to regulations in each state in which we offer our securities.

 

The trading price of our ordinary shares may be volatile, which could result in substantial losses to investors.

 

The trading price of our ordinary shares may be volatile and could fluctuate widely due to factors beyond our control. This may happen because of the broad market and industry factors, like the performance and fluctuation of the market prices of other companies with business operations located mainly in China that have listed their securities in the United States. A number of Chinese companies have listed or are in the process of listing their securities on U.S. stock markets. The securities of some of these companies have experienced significant volatility, including price declines in connection with their initial public offerings. The trading performances of these Chinese companies’ securities after their offerings may affect the attitudes of investors toward Chinese companies listed in the United States in general and consequently may impact the trading performance of our ordinary shares, regardless of our actual operating performance.

 

In addition to market and industry factors, the price and trading volume for our ordinary shares may be highly volatile for factors specific to our own operations, including the following:

 

variations in our revenues, earnings, cash flow and data related to our user base or user engagement;

 

announcements of new investments, acquisitions, strategic partnerships or joint ventures by us or our competitors;

 

announcements of new products, services and expansions by us or our competitors;

 

changes in financial estimates by securities analysts;

 

detrimental adverse publicity about us, our services or our industry;

 

additions or departures of key personnel;

 

release of lock-up or other transfer restrictions on our outstanding equity securities or sales of additional equity securities; and

 

potential litigation or regulatory investigations.

 

24

 

 

Any of these factors may result in large and sudden changes in the volume and price at which our ordinary shares will trade.

 

In the past, shareholders of public companies have often brought securities class action suits against those companies following periods of instability in the market price of their securities. If we were involved in a class action suit, it could divert a significant amount of our management’s attention and other resources from our business and operations and require us to incur significant expenses to defend the suit, which could harm our results of operations. Any such class action suit, whether or not successful, could harm our reputation and restrict our ability to raise capital in the future. In addition, if a claim is successfully made against us, we may be required to pay significant damages, which could have a material adverse effect on our financial condition and results of operations. 

 

Our ordinary shares will initially trade under $5.00 per share and thus will be penny stock. Trading in penny stocks has certain restrictions and these restrictions could negatively affect the price and liquidity of our ordinary shares.

 

Our ordinary shares are expected to trade below $5.00 per share upon listing. As a result, our ordinary shares would be known as a “penny stock,” which is subject to various regulations involving disclosures to be given to you prior to the purchase of any penny stock. The SEC has adopted regulations which generally define a “penny stock” to be any equity security that has a market price of less than $5.00 per share, subject to certain exceptions. Depending on market fluctuations, our ordinary shares could be considered to be a “penny stock.” A penny stock is subject to rules that impose additional sales practice requirements on broker/dealers who sell these securities to persons other than established members and accredited investors. For transactions covered by these rules, the broker/dealer must make a special suitability determination for the purchase of these securities. In addition, a broker/dealer must receive the purchaser’s written consent to the transaction prior to the purchase and must also provide certain written disclosures to the purchaser. Consequently, the “penny stock” rules may restrict the ability of broker/dealers to sell our ordinary shares, and may negatively affect the ability of holders of our ordinary shares to resell them. These disclosures require you to acknowledge that you understand the risks associated with buying penny stocks and that you can absorb the loss of your entire investment. Penny stocks generally do not have a very high trading volume. Consequently, the price of the stock is often volatile and you may not be able to buy or sell the stock when you want to.

 

If securities or industry analysts do not publish research or reports about our business, or if they adversely change their recommendations regarding our ordinary shares, the market price for our ordinary shares and trading volume could decline.

 

The trading market for our ordinary shares will be influenced by research or reports that industry or securities analysts publish about our business. If one or more analysts who cover us downgrade our ordinary shares, the market price for our ordinary shares would likely decline. If one or more of these analysts cease to cover us or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could cause the market price or trading volume for our ordinary shares to decline.

 

The sale or availability for sale of substantial amounts of our ordinary shares could adversely affect their market price.

 

Sales of substantial amounts of our ordinary shares in the public market after the completion of this offering, or the perception that these sales could occur, could adversely affect the market price of our ordinary shares and could materially impair our ability to raise capital through equity offerings in the future. The ordinary shares sold in this offering will be freely tradable without restriction or further registration under the Securities Act, and shares held by our existing shareholders may also be sold in the public market in the future subject to the restrictions in Rule 144 and Rule 701 under the Securities Act and the applicable lock-up agreements. Following the consummation of our initial public offering, there will be ordinary shares outstanding immediately after this offering. In connection with this offering, we and each of our directors and officers named in the section “Management,” and certain shareholders have agreed not to sell any ordinary shares for 12 months from the date of this prospectus without the prior written consent of the underwriters, subject to certain exceptions. However, the underwriters may release these securities from these restrictions at any time, subject to applicable regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”). We cannot predict what effect, if any, market sales of securities held by our significant shareholders or any other shareholder or the availability of these securities for future sale will have on the market price of our ordinary shares. See “Underwriting” and “Shares Eligible for Future Sale” for a more detailed description of the restrictions on selling our securities after this offering.

 

Because we do not expect to pay dividends in the foreseeable future after this offering, you must rely on price appreciation of our ordinary shares for return on your investment.

 

We currently intend to retain all of our available funds and any future earnings after this offering to fund the development and growth of our business. As a result, we do not expect to pay any cash dividends in the foreseeable future. Therefore, you should not rely on an investment in our ordinary shares as a source for any future dividend income.

 

Our board of directors has complete discretion as to whether to distribute dividends. Even if our board of directors decides to declare and pay dividends, the timing, amount and form of future dividends, if any, will depend on, among other things, our future results of operations and cash flow, our capital requirements and surplus, the amount of distributions, if any, received by us from our subsidiaries, our financial condition, contractual restrictions and other factors deemed relevant by our board of directors. Accordingly, the return on your investment in our ordinary shares will likely depend entirely upon any future price appreciation of our ordinary shares. There is no guarantee that our ordinary shares will appreciate in value after this offering or even maintain the price at which you purchased our ordinary shares. You may not realize a return on your investment in our ordinary shares and you may even lose your entire investment.

 

25

 

 

Because the initial public offering price is substantially higher than the pro forma net tangible book value per share, you will experience immediate and substantial dilution.

 

If you purchase ordinary shares in this offering, you will pay more for each share than the corresponding amount paid by existing shareholders for their ordinary shares. As a result, you will experience immediate and substantial dilution of $       per share, representing the difference between our net tangible book value per share of $         as of September 30, 2019, after giving effect to this offering and an assumed initial public offering price of $     per share. See “Dilution” for a more complete description of how the value of your investment in our ordinary shares will be diluted upon the completion of 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 our share price.

 

We plan to use the net proceeds of this offering primarily for expansion of fleet size, operational improvement as well as strategic acquisitions and alliances based on market conditions and for general corporate purposes. See “Use of Proceeds.” However, our management will have considerable discretion in the application of the net proceeds received by us. You will not have the opportunity, as part of your investment decision, to assess whether proceeds are being used appropriately. The net proceeds may be used for corporate purposes that do not improve our efforts to achieve or maintain profitability or increase our share price. The net proceeds from this offering may be placed in investments that do not produce income or that lose value.

 

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 produces passive income or which are held for the production of passive income is at least 50%.

 

Passive income generally includes dividends, interest, rents, 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.

 

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 current 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 — Material United States Federal Income Tax Consideration — Passive Foreign Investment Company.”

 

The amended and restated memorandum and articles of association that we intend to adopt contain anti-takeover provisions that could have a material adverse effect on the rights of holders of our ordinary shares.

 

We intend to adopt an amended and restated memorandum and articles of association immediately prior to the completion of this offering. Our proposed amended and restated memorandum and articles of association contain provisions to limit the ability of others to acquire control of our company or cause us to engage in change-of-control transactions. These provisions could have the effect of depriving our shareholders of an opportunity to sell their shares at a premium over prevailing market prices by discouraging third parties from seeking to obtain control of our company in a tender offer or similar transaction. In addition, our board of directors has the authority, without further action by our shareholders, to issue preferred shares in one or more series and to fix their designations, powers, preferences, privileges, and relative participating, optional or special rights and the qualifications, limitations or restrictions, including dividend rights, conversion rights, voting rights, terms of redemption and liquidation preferences, any or all of which may be greater than the rights associated with our ordinary shares. Preferred shares could be issued quickly with terms calculated to delay or prevent a change in control of our company or make removal of management more difficult. If our board of directors decides to issue preferred shares, the price of our ordinary shares may fall and the voting and other rights of the holders of our ordinary shares underlying the ordinary shares may be materially and adversely affected.

 

26

 

 

Our principal shareholders have substantial influence over our company. Their interests may not be aligned with the interests of our other shareholders, and they could prevent or cause a change of control or other transactions.

 

As of the date of this prospectus, Mr. Jinlong Yang, our founder and chairman of our board of directors, beneficially owns an aggregate of 60% of our outstanding ordinary shares. Upon the completion of this offering, our executive officers and directors, together with our existing shareholders, will beneficially own approximately ordinary shares, or approximately % of our outstanding ordinary shares.

 

Accordingly, our executive officers and directors, together with our existing shareholders, could have significant influence in determining the outcome of any corporate transaction or other matter submitted to the shareholders for approval, including mergers, consolidations, the election of directors and other significant corporate actions. In cases where their interests are aligned and they vote together, these shareholders will also have the power to prevent or cause a change in control. Without the consent of some or all of these shareholders, we may be prevented from entering into transactions that could be beneficial to us or our minority shareholders. In addition, our directors and officers could violate their fiduciary duties by diverting business opportunities from us to themselves or others. The interests of our largest shareholders may differ from the interests of our other shareholders. The concentration in the ownership of our ordinary shares may cause a material decline in the value of our ordinary shares. For more information regarding our principal shareholders and their affiliated entities, see “Principal Shareholders.”

 

As a company incorporated in the Cayman Islands, we are permitted to adopt certain home country practices in relation to corporate governance matters that differ significantly from Nasdaq corporate governance listing standards. These practices may afford less protection to shareholders than they would enjoy if we complied fully with Nasdaq corporate governance listing standards.

 

As an exempted company incorporated in the Cayman Islands that is expected to be listed on Nasdaq, we are subject to Nasdaq corporate governance listing standards. However, Nasdaq rules permit a foreign private issuer like us to follow the corporate governance practices of its home country. Certain corporate governance practices in the Cayman Islands, which is our home country, may differ significantly from Nasdaq corporate governance listing standards. Currently, we do not plan to rely on the home country practice with respect to our corporate governance after we complete this offering. However, if we choose to follow home country practice in the future, our shareholders may be afforded less protection than they otherwise would enjoy under Nasdaq corporate governance listing standards applicable to U.S. domestic issuers.

 

As a “controlled company” under the Nasdaq listing rules, we may follow certain exemptions from certain corporate governance requirements that could adversely affect our public shareholders.

 

We believe following this offering, our principal shareholder, founder and chairman of our board of directors, Mr. Jinlong Yang, will continue to own more than a majority of the voting power of our outstanding ordinary shares. Under the Nasdaq listing rules, a company of which more than 50% of the voting power is held by an individual, group or another company is a “controlled company” and is permitted to phase in its compliance with the independent committee requirements. Although we do not intend to rely on the “controlled company” exemptions under the Nasdaq listing rules, we could elect to rely on these exemptions in the future. If we were to elect to rely on the “controlled company” exemptions, a majority of the members of our board of directors might not be independent directors and our nominating and corporate governance and compensation committees might not consist entirely of independent directors. Accordingly, if we rely on the exemptions, during the period we remain a controlled company and during any transition period following a time when we are no longer a controlled company, you would not have the same protections afforded to shareholders of companies that are subject to all of the corporate governance requirements of Nasdaq.

 

You may face difficulties in protecting your interests, and your ability to protect your rights through U.S. courts may be limited, because we are incorporated under Cayman Islands law.

 

We are an exempted company incorporated under the laws of the Cayman Islands with limited liability. Our corporate affairs are governed by our memorandum and articles of association, the Companies Law (2018 Revision) of the Cayman Islands and the common law of the Cayman Islands. The rights of shareholders to take action against our directors and us, actions by minority shareholders and the fiduciary duties 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 the English common law, which are generally of persuasive authority, but are not binding, on a court in the Cayman Islands. The rights of our shareholders and the fiduciary duties of our directors under Cayman Islands law are not as clearly established as they would be under statutes or judicial precedent in some jurisdictions in the United States. In particular, the Cayman Islands has a different body of securities laws than the United States, and provide significantly less protection to investors. In addition, Cayman Islands companies may not have the standing to initiate a shareholder derivative action in a federal court of the United States. There is no statutory recognition in the Cayman Islands of judgments obtained in the United States, although the courts of the Cayman Islands will in certain circumstances, recognize and enforce a non-penal judgment of a foreign court of competent jurisdiction without retrial on the merits.

 

Certain corporate governance practices in the Cayman Islands, which is our home country, differ significantly from requirements for companies incorporated in other jurisdictions such as the U.S. Currently, we do not plan to rely on home country practice with respect to any corporate governance matter. However, if we choose to follow our home country practice in the future, our shareholders may be afforded less protection than they otherwise would under rules and regulations applicable to U.S. domestic issuers.

 

As a result of all of the above, public shareholders may have more difficulty in protecting their interests in the face of actions taken by our management, members of the board of directors or controlling shareholders than they would as public shareholders of a company incorporated in the United States. For a discussion of significant differences between the provisions of the Companies Law of the Cayman Islands and the laws applicable to companies incorporated in the United States and their shareholders, see “Description of Share Capital — Differences in Corporate Law.” 

 

27

 

 

Certain judgments obtained against us by our shareholders may not be enforceable.

 

We are a Cayman Islands exempted company and substantially all of our assets are located outside of the United States. All of our current operations are conducted in China. In addition, all of our current directors and officers are nationals and residents of countries other than the United States. Substantially all of the assets of these persons 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 the 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. Even if you are successful in bringing an action of this kind, the laws of the Cayman Islands and of China may render you unable to enforce a judgment against our assets or the assets of our directors and officers. For more information regarding the relevant laws of the Cayman Islands and China, see “Enforcement of Civil Liabilities.” As a result of all of the above, our shareholders may have more difficulties 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 an emerging growth company within the meaning of the Securities Act and may take advantage of certain reduced reporting requirements.

 

We are an “emerging growth company,” as defined in the JOBS Act, and we may take advantage of certain exemptions from requirements applicable to other public companies that are not emerging growth companies including, most significantly, not being required to comply with the auditor attestation requirements of Section 404 for so long as we are an emerging growth company.

 

The JOBS Act also provides that an emerging growth company does not need to comply with any new or revised financial accounting standards until such date that a private company is otherwise required to comply with such new or revised accounting standards. In other words, an “emerging growth company” can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have elected to take advantage of the extended transition period, although we have early adopted certain new and revised accounting standards based on transition guidance permitted under such standards. As a result of this election, our future financial statements may not be comparable to other public companies that comply with the public company effective dates for these new or revised accounting standards.

 

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.

 

Because we are a foreign private issuer under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), we are exempt from certain provisions of the securities rules and regulations in the United States that are applicable to U.S. domestic issuers, including:

 

the rules under the Exchange Act requiring the filing of quarterly reports on Form 10-Q or current reports on Form 8-K with the SEC;

 

the sections of the Exchange Act regulating the solicitation of proxies, consents, or authorizations in respect of a security registered under the Exchange Act;

 

the sections of the Exchange Act requiring insiders to file public reports of their share ownership and trading activities and liability for insiders who profit from trades made in a short period of time; and

 

the selective disclosure rules by issuers of material non-public information under Regulation FD.

 

We will be required to file an annual report on Form 20-F within four months of the end of each fiscal year. In addition, we intend to publish our results on a quarterly basis through press releases, distributed pursuant to the rules and regulations of the Nasdaq. Press releases relating to financial results and material events will also be furnished to the SEC on Form 6-K. However, the information we are required to file with or furnish to the SEC will be less extensive and less timely compared to that required to be filed with the SEC by U.S. domestic issuers. As a result, you may not be afforded the same protections or information, which would be made available to you, were you investing in a U.S. domestic issuer.

 

We may lose our foreign private issuer status in the future, which could result in significant additional costs and expenses.

 

As discussed above, we are a foreign private issuer, and therefore, we are not required to comply with all of the periodic disclosure and current reporting requirements of the Exchange Act. The determination of foreign private issuer status is made annually on the last business day of an issuer’s most recently completed second fiscal quarter, and, accordingly, the next determination will be made with respect to us on June 30, 2019. In the future, we would lose our foreign private issuer status if (1) more than 50% of our outstanding voting securities are owned by U.S. residents and (2) a majority of our directors or executive officers are U.S. citizens or residents, or we fail to meet additional requirements necessary to avoid loss of foreign private issuer status. If we lose our foreign private issuer status, we will be required to file with the SEC periodic reports and registration statements on U.S. domestic issuer forms, which are more detailed and extensive than the forms available to a foreign private issuer. We will also have to mandatorily comply with U.S. federal proxy requirements, and our officers, directors and principal shareholders will become subject to the short-swing profit disclosure and recovery provisions of Section 16 of the Exchange Act. In addition, we will lose our ability to rely upon exemptions from certain corporate governance requirements under the listing rules of the Nasdaq. As a U.S. listed public company that is not a foreign private issuer, we will incur significant additional legal, accounting and other expenses that we will not incur as a foreign private issuer.

 

28

 

 

We will incur significantly increased costs and devote substantial management time as a result of the listing of our ordinary shares.

 

We will incur additional legal, accounting and other expenses as a public reporting company, particularly after we cease to qualify as an emerging growth company. For example, we will be required to comply with the additional requirements of the rules and regulations of the SEC and the Nasdaq rules, including applicable corporate governance practices. We expect that compliance with these requirements will increase our legal and financial compliance costs and will make some activities more time-consuming and costly. In addition, we expect that our management and other personnel will need to divert attention from operational and other business matters to devote substantial time to these public company requirements. We cannot predict or estimate the number of additional costs we may incur as a result of becoming a public company or the timing of such costs.

 

In addition, changing laws, regulations and standards relating to corporate governance and public disclosure are creating uncertainty for public companies, increasing legal and financial compliance costs and making some activities more time-consuming. These laws, regulations and standards are subject to varying interpretations, in many cases due to their lack of specificity, and, as a result, their application in practice may evolve over time as new guidelines are provided by regulatory and governing bodies. This could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices. We intend to invest resources to comply with evolving laws, regulations and standards, and this investment may result in increased general and administrative expenses and a diversion of management’s time and attention from revenue-generating activities to compliance activities. If our efforts to comply with new laws, regulations and standards differ from the activities intended by regulatory or governing bodies due to ambiguities related to their application and practice, regulatory authorities may also initiate legal proceedings against us and our business may be adversely affected.

 

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) with at least 50% of such round lot holders holding securities with a market value of at least $2,500 in order to ensure that we meet the Nasdaq initial listing standards, we have not otherwise imposed any 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 share 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.

 

29

 

 

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS AND INDUSTRY DATA

 

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,” “Business” and “Regulation.” 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 condition and results of operations;

 

the expected growth of the logistics industry, particularly, in China;

 

our expectations regarding demand for and market acceptance of our marketplace’s products and services;

 

our expectations regarding our platform’s base of borrowers and investors;

 

our plans to invest in our platform;

 

our relationships with our partners;

 

competition in our industry; and

 

relevant government policies and regulations relating to our industry.

 

These forward-looking statements are subject to various and significant risks and uncertainties, including those which are beyond our control. Although we believe that our expectations expressed in these forward-looking statements are reasonable, our expectations may later be found to be incorrect. 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 thoroughly read this prospectus and the documents that we refer to herein 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. We disclaim any obligation to update our forward-looking statements, except as required by law.

 

This prospectus contains certain data and information that we obtained from various government and private publications, including industry data and information from Frost & Sullivan. Statistical data in these publications also include projections based on a number of assumptions. The transportation services market in China may not grow at the rate projected by market data, or at all. Failure of this industry to grow at the projected rate may have a material adverse effect on our business and the market price of our ordinary shares.

 

In addition, the new and rapidly changing nature of the transportation industry results in significant uncertainties for any projections or estimates relating to the growth prospects or future condition of our industry. 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.

 

30

 

 

USE OF PROCEEDS

 

We estimate that we will receive net proceeds from this offering of approximately $      million after deducting estimated underwriting discounts and commissions and the estimated offering expenses payable by us and based upon an assumed initial offering price of $       per ordinary share (excluding any exercise of the underwriters’ over-allotment option). A $1.00 increase (decrease) in the assumed initial public offering price of $      per share would increase (decrease) the net proceeds to us from this offering by approximately $      million, after deducting the estimated underwriting discounts and commissions 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, provided, however, that in no case would we decrease the initial public offering price to less than $     per share.

 

We intend to use the net proceeds of this offering as follows after we complete the remittance process:

 

  50% for acquiring  new revenue equipment through capital leases, including tractors and trailers;
    5% for operational improvement, including a new information system for fleet management and additional management personnel for expanded operation;
  15% for strategic acquisitions and alliances; and
  30% for working capital and general corporate purposes

 

Proceeds of this offering in the amount of $500,000 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.

 

The foregoing is set forth based on the order of priority of each purpose and 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 our stock price.” Although we plan to use a portion of the net proceeds from this offering for strategic acquisitions and alliances, as of the date of this prospectus, we are not a party to any agreement or understanding with respect any such acquisitions or alliances and have not identified the business for such transactions.

 

Pending any use described above, we plan to invest all the net proceeds in short-term, interest-bearing, debt instruments or demand deposits.

 

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, 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. In general, the relevant registration and approval procedures for capital contributions typically take approximately eight weeks to complete and there is no statutory limit on the amount of capital contributions under PRC laws and regulations. In addition, if we provide funding to our wholly foreign-owned subsidiary through loans, such loans must be registered or filed with the PRC State Administration of Foreign Exchange (“SAFE”) or its local branches. If we make loans to our PRC subsidiaries, the principal amount of such loans cannot exceed the surplus between the total investment in projects approved by the verifying governmental departments and the registered capital or twice of net worth of the relevant PRC subsidiary  subject to different calculation methods as regulated by the relevant PRC laws. See “Regulations – Regulation Relating to Funds Transfer to PRC Subsidiaries.” If we transfer proceeds to our PRC subsidiaries via capital contribution, our PRC subsidiaries will be required to complete the filing procedures with the MOFCOM. We cannot assure you that we will be able to obtain these government registrations or approvals on a timely basis, if at all. See “Risk Factors—Risks Related to Doing Business in China — PRC regulation of loans to and direct investment in PRC entities by offshore holding companies and governmental control of currency conversion may delay us from using the proceeds of this offering and our concurrent private placement, to make loans or additional capital contributions to our PRC subsidiaries, which could materially and adversely affect our liquidity and our ability to fund and expand our business.”

 

31

 

 

CAPITALIZATION

 

The following table sets forth our capitalization as of September 30, 2019 as follows:

 

on an actual basis; and

 

on an adjusted basis to reflect the sale of ordinary shares in this offering, at an assumed initial public offering price of $ per share, after deducting the underwriting discounts and commissions and estimated offering expenses payable by us.

 

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 capitalization table in conjunction with “Use of Proceeds,” “Summary Consolidated Financial and Operating Data,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements and the related notes appearing elsewhere in this prospectus.

 

    As of
September 30,
2019
 
Shareholders’ Equity   Actual     As adjusted  
    (Unaudited) ($)  
Ordinary shares, par value $0.001 per share, 38,000,000 ordinary shares authorized, 1,000 ordinary shares issued and outstanding on an actual basis,         ordinary shares issued and outstanding on an adjusted basis and        ordinary shares to be issued in this offering     1                    
Share subscription receivables     (837,837 )        
Additional paid-in capital     4,115,388          
Statutory reserves     687,139          
Retained earnings     5,697,408          
Accumulated other comprehensive loss     (508,684 )        
Total Shareholders’ Equity     9,153,415          
Total Capitalization     23,073,843          

 

If the underwriters’ over-allotment option to purchase additional shares from us was exercised in full, pro forma (i) ordinary shares would be       shares, (ii) additional paid-in capital would be $      (iii) total shareholders’ equity would be $      and (iv) total capitalization would be $      .

 

32

 

 

DILUTION

 

If you invest in our ordinary shares, your interest will be immediately diluted by $     per ordinary share, representing the difference between our net tangible book value per share of $     as of September 30, 2019, after giving effect to this offering and an assumed initial public offering price of $     per share. Dilution results from the fact that the initial public offering price per ordinary share is substantially in excess of the book value per ordinary share attributable to the existing shareholders for our presently outstanding ordinary shares.

 

Our net tangible book value as of September 30, 2019 was $9,153,415 or $   per ordinary share as of that date. Net tangible book value represents the amount of our total consolidated tangible assets, less the amount of our total consolidated liabilities. Dilution is determined by subtracting net tangible book value per ordinary share, after giving effect to the proceeds we will receive from this offering, from the assumed initial public offering price of $.     per ordinary share, which is based on the estimated initial public offering price set forth on the cover page of this prospectus and after deducting underwriting discounts and commissions and estimated offering expenses payable by us.

 

Without taking into account any other changes in net tangible book value after September 30, 2019, other than to give effect to the sale of the ordinary shares offered in this offering at the assumed initial public offering price of $      per ordinary share, which is based on the estimated initial public offering price set forth on the cover page of this prospectus and after deduction of the underwriting discounts and commissions and estimated offering expenses payable by us, our pro forma as adjusted net tangible book value as of September 30, 2019 would have been approximately $     , or $    per ordinary share. This represents an immediate increase in net tangible book value of $ per ordinary share to the existing shareholders and an immediate dilution in net tangible book value of $    per ordinary share to investors purchasing our ordinary shares in this offering. The following table illustrates such dilution:

 

    Per
Ordinary
Share
 
    ($)  
Assumed initial public offering price per ordinary share               
Net tangible book value per ordinary share as of September 30, 2019        
Pro forma as adjusted net tangible book value per ordinary share after giving effect to this offering        
Amount of dilution in net tangible book value per ordinary share to new investors in this offering        

 

A $1.00 change in the assumed public offering price of $    per ordinary share, which is based on the estimated initial public offering price set forth on the cover page of this prospectus, would increase (decrease), in the case of an increase (decrease), our pro forma as adjusted net tangible book value after giving effect to this offering by approximately $       million, the pro forma as adjusted net tangible book value per ordinary share after giving effect to this offering by $    per ordinary share and the dilution in pro forma as adjusted net tangible book value per ordinary share to new investors in this offering by $     per ordinary share, assuming no change to the number of ordinary shares offered by us as set forth on the cover page of this prospectus, and after deducting underwriting discounts and commissions and other offering expenses.

 

The following table summarizes, on a pro forma as adjusted basis as of December 31, 2018, the differences between existing shareholders and the new investors with respect to the number of ordinary shares purchased from us in this offering, the total consideration paid and the average price per ordinary share paid before deducting the underwriting discounts and commissions and estimated offering expenses.

 

    Ordinary Shares
Purchased
    Total Consideration     Average
Price Per
Ordinary
 
    Number     Percent     Amount     Percent     Share  
Existing shareholders                           %   $                           %   $          
New investors                    %   $           %   $    
Total               %   $           %   $    

 

The pro forma as adjusted information discussed above is illustrative only. Our net tangible book value following the completion of this offering is subject to adjustment based on the actual initial public offering price of our ordinary shares and other terms of this offering determined at pricing.

 

33

 

 

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 the 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, substantially 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 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 Puglisi & Associates, as our agent upon whom process may be served in any action brought against us under the securities laws of the United States.

 

Ogier, our counsel as to Cayman Islands law, and Jingtian & Gongcheng, our counsel as to PRC law, have advised us, respectively, that 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.

 

Enforcement of Judgments/Enforcement of Civil Liabilities

 

Ogier has advised us that 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 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. Ogier has further advised us that although there is no statutory enforcement in the Cayman Islands of judgments obtained in the United States, a judgment obtained in such jurisdiction will be recognized and enforced in the courts of the Cayman Islands at common law, without any re-examination 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.

 

We have been advised by our PRC counsel, Jingtian & Gongcheng, that the recognition and enforcement of foreign judgments are provided for under the PRC Civil Procedure Law. PRC courts may recognize and enforce foreign judgments in accordance with the requirements of the PRC Civil Procedure Law based either on treaties between China and the country where the judgment is made or on reciprocity between jurisdictions, and PRC courts will not recognize or enforce these foreign judgments if PRC courts believe the foreign judgments violate the basic principles of PRC laws or national sovereignty, security or public interest after review. However, currently, China does not have treaties or reciprocity arrangement providing for recognition and enforcement of foreign judgments ruled by courts in the United States or the Cayman Islands. Thus, it is uncertain whether a PRC court would enforce a judgment ruled by a court in the United States or the Cayman Islands.

 

34

 

 

SUMMARY CONSOLIDATED FINANCIAL AND OPERATING DATA

 

The following summary consolidated statements of income and comprehensive income for the nine months ended September 30, 2019 and 2018 and the years ended December 31, 2018 and 2017, and the summary consolidated balance sheet data as of September 30, 2019, December 31, 2018 and 2017, have been derived from our consolidated financial statements included elsewhere in this prospectus.

 

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.

 

    For the Nine Months Ended
September 30,
    For the Year Ended
December 31,
 
    2019     2018     2018     2017  
Selected Consolidated Statements of Income and Comprehensive Income Data:   USD     USD     USD     USD  
    (Unaudited)     (Unaudited)              
Revenues     20,735,260       19,588,457       27,646,789       20,616,011  
Transportation costs     17,951,763       15,746,947       22,399,066       16,806,258  
General and administrative expenses     1,100,652       916,846       1,147,101       1,452,369  
Income from operations     1,639,260       2,862,641       4,034,766       2,317,476  
Other (expenses) income     (112,488 )     (118,114 )     (173,851 )     (391,121 )
Income before income taxes     1,526,772       2,744,527       3,860,915       1,926,355  
Provision for income taxes     500,739       700,801       1,006,028       688,265  
Net income     1,026,033       2,043,726       2,854,887       1,238,090  
Other comprehensive income (loss)     (377,649 )     (408,795 )     (419,684 )     291,244  
Comprehensive income     648,384       1,634,931       2,435,203       1,529,334  
Earnings per share - basic and diluted     1,026.03       2,043.73       2,854.89       1,238.09  
Weighted average ordinary shares outstanding     1,000       1,000       1,000       1,000  

 

    September 30,
2019
    December 31,
2018
    December 31,
2017
 
Selected Consolidated Balance Sheet Data:   USD     USD     USD  
    (Unaudited)              
Current assets     18,469,303       10,567,898       11,471,380  
Property and equipment, net     4,224,761       4,988,774       5,431,913  
Total assets     23,073,843       15,883,551       17,297,480  
Total debt (including current maturities)     3,196,735       2,522,726       3,843,967  
Capital lease and financing obligations     1,693,551       1,464,109       1,781,414  
Shareholders’ equity     9,153,415       8,505,031       5,040,587  

  

35

 

 

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS

 

The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our consolidated financial statements and related notes included elsewhere in this prospectus. This discussion and analysis and other parts of this prospectus contain forward-looking statements based upon current beliefs, plans and expectations that involve risks, uncertainties and assumptions. Our actual results and the timing of selected events could differ materially from those anticipated in these forward-looking statements as a result of several factors, including those set forth under “Risk Factors” and elsewhere in this prospectus. You should carefully read the “Risk Factors” section of this prospectus to gain an understanding of the important factors that could cause actual results to differ materially from our forward-looking statements.

 

Overview

 

We are a fast growing trucking services provider in the PRC with over 17 years of history in the transportation industry. We formed our first operating subsidiary in 2002 to engage in the business of trucking services and subsequently formed four other wholly owned subsidiaries. Our current operations are conducted through our subsidiaries. We experienced a steady growth in our business in recent years and our revenue increased by 5.9% for the nine months ended September 30, 2019 comparing to the same period in 2018 with an increase of 34.1% in 2018 compared to 2017. As a result of our continuous growth, we have become the second largest transportation company in the Guangdong Province and we have been accredited by the China Federation of Logistics and Purchasing as a 3A-grade trucking service provider. We operate a truckload fleet with approximately 139 tractors and 90 trailers, all of which are owned by us. Given the large scale of our fleet, we offer both network density and broad geographic coverage to meet our customers’ diverse transportation needs within the PRC. Operating out of our two regional terminals in Guangdong and Xinjiang in the PRC, we transport a diverse range of goods and merchandises from our customers’ designated pick up points to their designated destinations across different provinces in the PRC or within Guangdong and Xinjiang province, either through our own fleet of transportation vehicles or by our subcontractors.

 

MingZhu Logistics Holdings Limited (“MingZhu Cayman”) is a holding company incorporated on January 2, 2018 under the laws of the Cayman Islands. Our history can be traced back to July 2002 when our first operating subsidiary, Shenzhen Yangang Mingzhu Freight Industry Co., Ltd. (“MingZhu”) was established in Shenzhen, Guangdong, China as a limited liability company on July 10, 2002.

 

Mr. Jinlong Yang, our Chairman of the Board and CEO, is our controlling shareholder holding 60% equity interest of MingZhu Cayman prior to our initial public offering.

 

We experienced steady growth in our business in recent years. Our total revenue was $20,735,260 and $19,588,457 for the nine months ended September 30, 2019 and 2018, respectively, representing an increase of approximately 5.9%. Our total revenue was $27,646,789 and $20,616,011, respectively, for fiscal years 2018 and 2017, representing an increase of approximately 34.1%.

 

Reorganization

 

A reorganization of the Company’s legal structure was completed on April 13, 2018. The reorganization involved the incorporation of MingZhu Cayman, and its wholly-owned subsidiaries, MingZhu Investment Limited (“MingZhu BVI”), and YGMZ (Hong Kong) Limited (“MingZhu HK”); and the transfer of all equity ownership of Shenzhen MingZhu to MingZhu HK from the former shareholders of MingZhu. In consideration of the transfer, the Company issued 1,000 shares of the Company with par value $0.001 (HKD 0.01) per share to the former shareholders of MingZhu.

 

On April 13, 2018, the former shareholders transferred their 100% ownership interest in MingZhu to MingZhu HK, which is 100% owned by MingZhu Cayman through MingZhu BVI. After the reorganization, MingZhu Cayman owns 100% equity interests of MingZhu BVI, MingZhu HK and MingZhu. The controlling shareholder of MingZhu Cayman is same as of MingZhu prior to the reorganization.

 

MingZhu was incorporated on July 10, 2002 in Shenzhen, Guangdong under the laws of the PRC. Shenzhen Pengcheng Shengshi Logistics Co., Ltd. (“MingZhu Pengcheng”), a company providing trucking services, was incorporated on April 7, 2010 in Shenzhen, Guangdong under the laws of the PRC. Prior to the reorganization, MingZhu and MingZhu Pengcheng were under common control. On November 10, 2017, for the purpose of reorganization so that the business of the Company could be rearranged to be under a common holding company, all outstanding equity interest of MingZhu Pengcheng was transferred to MingZhu.

 

Since our businesses are effectively controlled by the same group of the shareholders before and after the reorganization, they are considered under common control. The consolidation of the Company and its subsidiaries has been accounted for at historical cost and prepared on the basis as if the aforementioned transactions had become effective as of the beginning of the first period presented in the consolidated financial statements.

 

36

 

 

Key Factors that Affect Operating Results

 

Our performance of operations and financial conditions have been, and are expected to continue to be, affected by a number of factors, including macroeconomic conditions, major customers demand, fuel charges, collectability of account receivable and timing of collection, driver capacity and wage cost, regulations and seasonality, many of which may be beyond our control.

 

Major customers demand

 

During the nine months ended September 30, 2019, and 2018, sales to our top five customers accounted for approximately 62.3% and 64.8%, respectively. During fiscal years 2017 and 2018, sales to our top five customers accounted for approximately 71.4% and 63.9%, respectively, of our total revenue in each of the respective years. Our service agreements with our customers have an expected length of one year or less. While certain service contracts contain options of renewal, there is no assurance that our major customers will continue their business relationship with us, or the revenue generated from dealings with them will be maintained or increased in the future. If we are unable to enter into new service contracts with our customers upon expiry of the current contracts, or there is a reduction or cessation of demands from these customers for whatever reasons and we are unable to enter into service contracts of comparable size and terms in substitution, our business, financial conditions and results of operation may be materially and adversely affected.

 

Fuel charges

 

Fuel shortage, increases in fuel prices and rationing of petroleum products may increase our cost and have a material adverse effect on our operations’ profitability. The cost of fuel can fluctuate significantly and is subject to many economic and political factors that are beyond our control, including but not limited to the political instability in oil-producing regions. Our service agreements with our customers allow us to adjust our service fees to some extent when the fuel prices fluctuate significantly. However, if the fluctuations fall within the acceptable range, the service fees cannot be adjusted and thus we are still exposed to the risk of the fuel price fluctuation which may affect our profitability.

 

Collectability and timing of collection of our account receivables

 

Our cash flows depend on the timely receipt of payments from our customers. There is no assurance that our customers will pay us on time and in full. Should we experience any unexpected delay or difficulty in collecting account receivables from our customers, our operating results and financial condition may be adversely affected.

 

Driver Capacity and Wage Cost

 

We recognize that our professional driver workforce is one of our most valuable assets. Drivers who hold A2 driving license are the most needed manpower of the Chinese trucking service market. Drivers with an A2 driving license are allowed to drive heavy trucks, trailer-towing vehicles and semi-trailer towing vehicles at times, there are A2 driving license drivers shortages in the trucking industry. Changes in the demographic composition of the workforce, alternative employment opportunities that become available in the economy, and individual drivers’ desire to be home more frequently can affect the availability of drivers, including by increasing the wages our drivers require. Driver shortages impact both our ability to serve customers and driver wages paid to attract and retain drivers and can have a material adverse effect on our operations and profitability.

 

Regulations

 

In recent years, the government has issued many supportive policies to encourage the development of the logistic industry in Guangdong and Xinjiang which are our two main markets. Encouraged by those policies, the logistic industry is expected to become more standardized and modernized. The trucking service market which is a subset of the logistic industry is likely to evolve along with the development of logistic industry.

 

Seasonality

 

For our customers that are logistic companies, the routes and schedules that have been contracted with us are generally scheduled and regular and remain unchanged throughout the contract period. If our customers experience sudden spikes in demand for trucking services, they may seek other service providers instead of changing the terms of our trucking services.

 

In general, demand for our trucking services has been observed to be higher in June, November and December each year due to the sales campaigns organized by various online shopping platforms. To meet the demand in peak seasons, we extend our hours of operation each day during these months. Despite peak demand seasons being observed in the consumer goods industry, the business’s dedicated truckload services ensure a level of stability in our operations and therefore our Directors feel that seasonality do not have major impact to the business’ overall revenue and business operations.

 

In addition to the foregoing factors, our operating results are also affected by certain trends in the PRC economy and the trucking industry. According to the Frost & Sullivan July 2019 report, for the period from 2019 to 2023, the estimated CAGR in China’s macro economy, revenue of trucking services in China, road revenue of trucking services in Guangdong region and the volume of road freight in Xinjiang is of 5.1%, 2.5%, 2.9% and 6.3% respectively. We expect an organic growth our revenue in the foreseeable future driven by the foregoing factors.

 

37

 

 

Results of Operations

 

For the nine months ended September 30, 2019 and 2018

 

The following table summarizes the results of our operations for the nine months ended September 30, 2019 and 2018, respectively, and provides information regarding the dollar and percentage increase or (decrease) during such periods.

 

   

For the Nine Months Ended

September 30,

          Change  
    2019     2018     Change     (%)  
   

(Unaudited)

   

(Unaudited)

             
REVENUES   $ 20,735,260     $ 19,588,457     $ 1,146,803       5.9 %
                                 
COSTS AND EXPENSES                                
Transportation costs     17,951,763       15,746,947       2,204,816       14.0 %
General and Administrative expenses     1,100,652       916,846       183,806       20.0 %
Sales and marketing expenses     43,585       62,023       (18,438 )     -29.7 %
Total costs and expenses     19,096,000       16,725,816       2,370,184       14.2 %
                                 
OPERATING INCOME     1,639,260       2,862,641       (1,223,381 )     -42.7 %
                                 
OTHER (EXPENSES) INCOME                                
Interest expenses     (259,449 )     (286,863 )     27,414       -9.6 %
Other expenses     (67,827 )     (7,557 )     (60,270 )     797.5 %
Other income     214,788       176,306       38,482       21.8 %
Total other expenses, net     (112,488 )     (118,114 )     5,626       -4.8 %
                                 
INCOME BEFORE INCOME TAXES     1,526,772       2,744,527       (1,217,755 )     -44.4 %
                                 
PROVISION FOR INCOME TAXES     500,739       700,801       (200,062 )     -28.5 %
                                 
NET INCOME   $ 1,026,033     $ 2,043,726     $ (1,017,693 )     -49.8 %

 

Revenues

 

Our revenues are primarily derived from transportation services. Total revenues increased by $1,146,803, or 5.9%, to $20,735,260 for the nine months ended September 30, 2019 as compared to $19,588,457 for the nine months ended September 30, 2018. The increment was attributable to the revenue generated from Xinjiang province as we continue to enlarge market share in Xinjiang province.

 

Our operations are primarily based in the PRC, where we derive a substantial portion of revenues. Management also reviews consolidated financial results by business locations. Disaggregated information of revenues by geographic locations are as follows:

 

    For the nine months ended
September 30,
2019
    For the nine months ended
September 30,
2018
    Change    

Change

(%)

 
Revenue    

(Unaudited)

     

(Unaudited)

                 
Guangdong   $ 10,525,360     $ 10,860,968     $ (335,608 )     -3.1 %
Xinjiang     10,209,900       8,727,489       1,482,411       17.0 %
Total revenue   $ 20,735,260     $ 19,588,457     $ 1,146,803       5.9 %

 

Our revenue was primarily generated from Guangdong province and Xinjiang province in the PRC, which accounted for approximately 50.8% and 49.2% of our total revenue for the nine months ended September 30, 2019, respectively; and approximately 55.4% and 44.6% of our total revenue for the nine months ended September 30, 2018 respectively. Through reasonable and effective allocation of our resources, we expect that our revenue will grow in both Xinjiang and Guangdong.

 

Revenue from Guangdong province

 

Revenue from Guangdong province is primarily comprised of highway transportation services. Services are mostly starting from Guangdong province to other provinces in the PRC except Xinjiang province. Revenue is recognized over the requisite transit period as the customer’s goods move from origin to destination which would take one to three days.

 

38

 

 

For the nine months ended September 30, 2019, the revenue generated from Guangdong province is $10,525,360 as compared to $10,860,968 for the nine months ended September 30, 2018, representing a decrease of $335,608 or 3.1%. The decrease was mainly due to the difference of average exchanged rate used for respective period. Disregarding the influence of exchange rate, the revenue generated from Guangdong province was RMB 72,233,439 for the nine months ended September 30, 2019 as compared to RMB 70,727,708 for the nine months ended September 30, 2018, representing an increase of RMB 1,505,731 or 2.1%. 

 

Revenue from Xinjiang province

 

Revenue from Xinjiang province is primarily comprised of transportation services within the Xinjiang province. Services are mostly completed within approximately 24 hours. Revenue is recognized over the requisite transit period as the customer’s goods move from origin to destination, and the delivery note is signed by both parties.

 

The management believes the emerging market of Xinjiang is the main driver for the Company’s future growth. Starting from the last season of 2016, we have expanded our business into Xinjiang province which has less fierce competition and high demands of trucking services. Our revenue generated in Xinjiang province increased from $8,727,489 for the nine months ended September 30, 2018 to $10,209,900 for the nine months ended September 30, 2019, representing an increase of $1,482,411 or 17.0%. Comparing to the growth rate of 159.1% for the year ended 2018, we believe that 17.0% is of valuable reference for the expectation of future performance.

 

Costs and expenses

 

The costs and expenses of our trucking services consist of transportation costs, general and administrative expenses and sales and marketing expenses.

 

    For the nine months ended
September 30,
2019
    For the nine months ended
September 30,
2018
    Change     Change
(%)
 
COSTS AND EXPENSES  

(Unaudited)

   

(Unaudited)

             
Transportation costs   17,951,763     15,746,947     2,204,816       14.0 %
General and Administrative expenses     1,100,652       916,846       183,806       20.0 %
Sales and marketing expenses     43,585       62,023       (18,438 )     -29.7 %
Total costs and expenses   19,096,000     16,725,816     2,370,184       14.2 %

  

Total costs and expenses increased by $2,370,184, or 14.2%, to $19,096,000 for the nine months ended September 30, 2019 as compared to $16,725,816 for the nine months ended September 30, 2018. This increase was primarily due to the increase in transportation costs incurred during August and September of 2019 while the revenue also increased. The increase in costs and expenses was higher than the increase of revenue as we attract more subcontractors to expand our transportation network.

 

Transportation costs

 

Transportation costs primarily consist of fuel expenses, highway bridge expenses, insurance expenses, drivers’ wages, maintenance and repair expenses, subcontractor fees, depreciation expenses and others expenses.

 

    For the nine months ended
September 30,
2019
    For the nine months ended
September 30,
2018
    Change     Change
(%)
 
Transportation costs  

(Unaudited)

   

(Unaudited)

             
Drivers wages   $ 1,324,395     $ 1,327,722     $ (3,327 )     -0.3 %
Fuel expenses     2,441,815       3,632,810       (1,190,995 )     -32.8 %
Highway bridge expenses     2,074,766       2,942,021       (867,255 )     -29.5 %
Insurance expenses     253,780       287,540       (33,759 )     -11.7 %
Subcontractor fees     10,494,852       5,645,597       4,849,254       85.9 %
Depreciation expenses     902,196       1,002,498       (100,302 )     -10.0 %
Maintenance and repair expenses     278,527       749,809       (471,281 )     -62.9 %
Others expenses     181,432       158,951       (22,482 )     14.1 %
Total transportation costs   $ 17,951,763     $ 15,746,947     $ 2,204,816       14.0 %

 

Subcontractor fees increased by approximate $4,849,254, or 85.9%, to $10,494,852 for the nine months ended September 30, 2019 as compared to $5,645,597 for the nine months ended September 30, 2018. In August and September of 2019, the Company secured relatively a larger number of services requests. With limited revenue equipment and working capital, the services had to be subcontracted temporarily to meet these demands, resulted in an increase in subcontracting fees. Income decreased by 42.7% from operations for the nine months ended September 30, 2019 compared to the same period in 2018 due to the transitory increase in above mentioned subcontracted services, which is expected to normalize in the near future through better load planning. In addition, the Company is looking to expand its business into other regional markets and anticipates the expansion to bring on substantial growth in income levels.

 

39

 

 

General and Administrative expenses

 

For the nine months ended September 30, 2019, we incurred total general and administrative expenses in the amount of $1,100,652, which was mainly comprised of professional fees of $415,679, salary expenses of $327,123, rental expenses of $118,505, allowance for doubtful accounts of $74,943 and others expenses of $164,402.

 

For the nine months ended September 30, 2018, we incurred total general and administrative expenses in the amount of $916,846, which primarily consisted of professional fees of $234,396, salary expenses of $445,762, rental expenses of $11,391, allowance for doubtful accounts of $89,589 and others expenses of $ 135,708.

 

General and administrative expenses increased by $183,806 or 20.0% for the nine months ended September 30, 2019 as compared to $916,846 for the nine months ended September 30, 2018, was primarily due to an increase in rental expenses of $107,114 as we leased a new office  with a higher rent rate, an increase of $181,283 of professional expense in relation with the capital market, an increase in other expenses of $28,694; but offset by an decrease of $118,639 in salary expenses and an decrease of allowance for doubtful accounts of $14,646.

 

For the years ended December 31, 2018 and 2017.

 

The following table summarizes the results of our operations for the years ended December 31, 2018 and 2017, respectively, and provides information regarding the dollar and percentage increase or (decrease) during such periods.

 

    For the Year Ended
December 31,
         
    2018     2017     Change     Change (%)  
                         
REVENUES   $ 27,646,789     $ 20,616,011     $ 7,030,778       34.1 %
                                 
COSTS AND EXPENSES                                
Transportation costs     22,399,066       16,806,258       5,592,808       33.3 %
General and Administrative expenses     1,147,101       1,452,369       (305,268 )     -21.0 %
Sales and marketing expenses     65,856       39,908       25,948       65.0 %
Total costs and expenses     23,612,023       18,298,535       5,313,488       29.0 %
                                 
OPERATING INCOME     4,034,766       2,317,476       1,717,290       74.1 %
                                 
OTHER (EXPENSES) INCOME                                
Interest expenses     (355,332 )     (289,967 )     (65,365 )     22.5 %
Other expenses     (8,204 )     (186,515 )     178,311       -95.6 %
Other income     189,685       85,361       104,324       122.2 %
Total other expenses, net     (173,851 )     (391,121 )     217,270       -55.6 %
                                 
INCOME BEFORE INCOME TAXES     3,860,915       1,926,355       1,934,560       100.4 %
                                 
PROVISION FOR INCOME TAXES     1,006,028       688,265       317,763       46.2 %
                                 
NET INCOME   $ 2,854,887     $ 1,238,090     $ 1,616,797       130.6 %

 

Revenues

 

Our revenues are primarily derived from transportation services. Total revenues increased by $7,030,778, or 34.1%, to $27,646,789 for the year ended December 31, 2018 as compared to $20,616,011 for the year ended December 31, 2017. Such increase was mainly attributable to the significant increase in revenue generated by our business expansion in Xinjiang province.

 

Our operations are primarily based in the PRC, where we derive a substantial portion of revenues. Management also review consolidated financial results by business locations. Disaggregated information of revenues by geographic locations are as follows:

 

    For the year ended December 31,
2018
    For the year ended December 31,
2017
    Change    

Change

(%)

 
Revenue                                
Guangdong   $ 14,426,772     $ 15,514,679     $ (1,087,907 )     -7.0 %
Xinjiang     13,220,017       5,101,332       8,118,685       159.1 %
Total revenue   $ 27,646,789     $ 20,616,011     $ 7,030,778       34.1 %

 

Our revenue was primarily generated from Guangdong province and Xinjiang province in the PRC, which accounted for approximately 52.2% and 47.8% of our total revenue for the year ended December 31, 2018, respectively; and approximately 75.3% and 24.7% of our total revenue for the year ended December 31, 2017 respectively.

40

 

 

Revenue from Guangdong province

 

Revenue from Guangdong province is primarily comprised of highway transportation services. Services are mostly starting from Guangdong province to other provinces in the PRC except Xinjiang province. Revenue is recognized over the requisite transit period as the customer’s goods move from origin to destination which would take one to three days.

 

For the year ended December 31, 2018, the revenue generated from Guangdong province is $14,426,772 as compared to $15,514,679 for the year ended December 31, 2017, representing a decrease of $1,087,907 or -7.0%. Such slight decrement is acceptable as our management cut out some less profitable routes and reallocated our revenue equipment for the business development in Xinjiang province for greater growth. As a result of the limited working capital, revenue equipment and personnel, we decided to reduce the proportion of revenue generated from Guangdong province till it contributes 50% (with fluctuation of five percentage points) of our total revenue. This target was achieved by the end of fiscal year 2018. We intend to maintain such proportion in the future by expanding our business simultaneously in both provinces.

 

Revenue from Xinjiang province

 

Revenue from Xinjiang province is primarily comprised of transportation services within the Xinjiang province. Services are mostly completed within approximately 24 hours. Revenue is recognized over the requisite transit period as the customer’s goods move from origin to destination, and the delivery note is signed by both parties.

 

The management believes the emerging market of Xinjiang is the main driver for the Company’s future growth. Starting from the last season of 2016, we have expanded our business into Xinjiang province which has less fierce competitions and high demand of trucking services. Our revenue generated in Xinjiang province increased from $5,101,332 for the year ended December 31, 2017 to $13,220,017 for the year ended December 31, 2018, representing an increase of $8,118,685 or 159.1%. Such exponential growth was expected as the initial expansion in a new geographic market for trucking services is generally rapid, which results in high growth in revenue. However; as we further expand our operations in Xinjiang, we expect that the growth rate will adjust itself to more consistent levels which, we believe, will be more sustainable in the long run. Through reasonable and effective allocation of our resources, we expect that our revenue will grow in both Xinjiang and Guangdong.

 

Costs and expenses

 

The costs and expenses of our trucking services consist of transportation costs, general and administrative expenses and sales and marketing expenses.

 

    For the year ended
December 31,
2018
    For the year ended
December 31,
2017
    Change     Change (%)  
Costs and expenses                                
Transportation costs   $ 22,399,066     $ 16,806,258     $ 5,592,808       33.3 %
General and administrative expenses     1,147,101       1,452,369       (305,268 )     -21.0 %
Sales and marketing expenses     65,856       39,908       25,948       65.0 %
Total costs and expenses   $ 23,612,023     $ 18,298,535     $ 5,313,488       29.0 %

 

Total costs and expenses increased by $5,313,488, or 29.0%, to $23,612,023 for the year ended December 31, 2018 as compared to $18,298,535 for the year ended December 31, 2017. The increase in costs and expenses was in line with the increase of revenue.

 

Transportation costs

 

Transportation costs primarily consist of fuel expenses, highway bridge expenses, insurance expenses, drivers’ wages, maintenance and repair expenses, subcontractor fees, depreciation expenses and others expenses.

 

    For the year ended December 31,
2018
    For the year ended December 31,
2017
    Change     Change (%)  
Transportation costs                                
Drivers wages   $ 1,859,150     $ 1,242,086     $ 617,064       49.7 %
Fuel expenses     4,684,828       3,884,642       800,186       20.6 %
Highway bridge expenses     3,902,543       2,830,110       1,072,433       37.9 %
Insurance expenses     375,637       351,892       23,745       6.7 %
Subcontractor fees     9,122,701       5,514,058       3,608,643       65.4 %
Depreciation expenses     1,266,174       1,195,201       70,973       5.9 %
Maintenance and repair expenses     974,750       812,353       162,397       20.0 %
Others expenses     213,283       975,916       (762,633 )     -78.1 %
Total transportation costs   $ 22,399,066     $ 16,806,258     $ 5,592,808       33.3 %

 

41

 

 

Except for the relatively lower increase in insurance expenses and depreciation expenses due to the disposal of revenue equipment throughout the last season of 2017, the management believes that increase of drivers’ wages, fuel expenses, highway bridge expenses and maintenance and repair expenses reasonably match the increase of revenue.

 

Furthermore, as a result of securing the market share of Xinjiang province, subcontractor fees increased by approximate $3,608,643, or 65.4%, to $9,122,701 for the year ended December 31, 2018 as compared to $5,514,058 for the year ended December 31, 2017. Other expenses decreased by approximate $762,633, or 78.1%, to $213,283 for the year ended December 31, 2018 as compared to $975,916 for the year ended December 31, 2017. The decrease in other expenses is due to the expenses incurred by the disposal of operating supplies in 2017.

 

General and Administrative expenses

 

For the year ended December 31, 2018, we incurred total general and administrative expenses in the amount of $1,147,101, which was mainly comprised of professional fees of $285,259, salary expenses of $647,060, rental expenses of $38,350, allowance for doubtful accounts of $63,601 and others expenses of $112,831.

 

For the year ended December 31, 2017, we incurred total general and administrative expenses in the amount of $1,452,369, which primarily consists of professional fees of $794,099, salary expenses of $480,006, rental expenses of $29,279, allowance for doubtful accounts of $28,424 and others expenses of $120,561.

 

General and administrative expenses decreased by $305,268 or 21.0% for the year ended December 31, 2018 as compared to $1,452,369 for the year ended December 31, 2017, was primarily due to decrease in other expenses of $7,729 and a decrease of $508,840 of professional expense in relation with the capital market planning as no related expenses incurred during the fiscal year of 2018; but offset by an increase of $167,054 in salary expenses; an increase of rental expenses of $9,071; an increase of allowance for doubtful accounts of $35,177.

 

Other Income and (Expenses)

 

For the nine months ended September 30, 2019 and 2018, the other income and expenses primarily consist of late fees due to unpaid income tax, net rental income from renting out spare office space and property, interest expenses and others. Total interest expenses were decreased by $27,414, or 9.6%, to $259,449 for the nine months ended September 30, 2019 as compared to $286,863. The decrease was offset by the increase of other expenses of $60,270 resulting from the late fees incurred and the increase of other income of $38,482 due to the recovery of allowance for doubtful accounts.

 

For the years ended December 31, 2018 and 2017 the other income and expenses primarily consist of net rental income from renting out spare office space and property, interest expenses and others. Total other expenses were decreased by $217,270, or 55.6%, to $173,851 for the year ended December 31, 2018 as compared to $391,121 for the year ended December 31, 2017. The decrease is mainly attributable to a decrease in other expenses due to the expense accrued in relation to a lawsuit in 2017. The decrease was offset by the increase of interest expenses of $65,365; and a decrease of the net rental income derived from renting out spare office space of $19,106 as some of the lease agreements expired during the year ended 2018.

 

Liquidity and Capital Resources

 

Our business requires substantial amounts of cash to cover operating expenses as well as to fund capital expenditures, working capital changes, principal and interest payments on our obligations, lease payments, to support tax payments when we generate taxable income. Recently, we have financed our capital requirements with borrowings under our existing term loan facility, borrowings under our existing revolving credit facility, cash flows from operating activities, direct equipment financing, operating leases and proceeds from equipment sales.

 

For the nine months ended September 30, 2019 and for the year ended December 31, 2018, we had a cash flow from operating activities of $999,658 and $2,681,104, respectively. As of September 30, 2019 and December 31, 2018, we had cash and restricted cash of $287,571 and $808,309, respectively, and our working capital was $6,214,789 and $5,050,487, respectively. As of September 30, 2019, we were obliged to pay the income tax of $881,740 and a late fees of $53,345 for our failure to pay the income tax for the year ended December 31, 2018 by May 31, 2019, the deadline for making such tax payment. Comparing to a working capital of $5,050,487 as of December 31, 2018 with a paid income tax of $623,973, we had a larger amount of working capital of $6,214,789 as of September 30, 2019. Such working capital is sufficient to cover the above mentioned total unpaid amount. In addition, we expect a peak period during November and December with higher cash inflow in operating activities to further secure the Company’s liquidity. Therefore, the payment of above mentioned income tax and late fee will not have material impact on the Company’s liquidity. The management believes the company’s revenues and operations will continue to grow and the current working capital is sufficient to support its operations and debt obligations as they become due one year from the date of this report. However, we may need additional cash resources in the future if we experience changed business conditions or other developments and may also need additional cash resources in the future if we wish to pursue opportunities for investment, acquisition, strategic cooperation or other similar actions. If it is determined that the cash requirements exceed our amounts of cash on hand, we may seek to issue debt or equity securities or obtain a credit facility.

 

Cash Flow

 

For the nine months ended September 30, 2019 and 2018

 

The following summarizes the key components of our cash flows for the nine months ended September 30, 2019 and 2018:

 

    For the Nine Months Ended
September 30,
 
    2019     2018  
    (Unaudited)     (Unaudited)  
Net cash provided by operating activities   $ 999,658     $ 2,681,104  
Net cash used in investing activities     (292,708 )     (70,905 )
Net cash used in financing activities     (1,218,428 )     (2,564,836 )
Effect of exchange rate change on cash     (9,260 )     (12,968 )
Net (decrease) increase in cash and cash restricted cash     (520,738 )     32,395  
Cash and restricted cash at beginning of the period     808,309       352,748  
Cash and restricted cash at end of the period   $ 287,571     $ 385,143  

42

 

 

Operating Activities:

 

Net cash provided by operating activities was $999,658 for the nine months ended September 30, 2019 and was primarily attributable to (i) net income of $1,026,033, (ii) various non-cash item of $1,088,122 including provision for doubtful accounts, amortization of deferred financing fees, depreciation for plant and equipment and deferred tax expense, (iii) a $4,027 decrease of operating supplies, (iv) a $5,387,241 increase of accounts payable in accordance with the increase of subcontracting fees, (v) a $452,303 increase of tax payables. This cash inflow is offset by (i) the $6,298,756 increase of account receivables, (ii) a $119,629 decrease of prepayments, (iii) a $57,097 increase of other receivables, (iv) a $127,215 increase of deposits, (iv) a $355,371 decrease of other payables and accrued liabilities.

 

For the nine months ended September 30, 2019, cash provided by operating activities was $999,658 comparing to $2,681,104 for the nine months ended September 30, 2018, the decrease of $1,681,446, or 62.7%, was primarily due to the increased amount of accounts receivable as of September 30, 2019. Comparing to the same period of year 2018, the increased accounts receivable as of September 30, 2019 was mainly attributable to the revenue generated during August and September of 2019. The accounts receivable that are within 60 days accounts for approximately 63% of total accounts receivable as of September 30, 2019, and based on the general customer credit period of one to 120 days, the management believes this balance will be collected within the said period. Our management will continue to lower the accounts receivable turnover days by implementing a number of strategies, including selecting customers with better credit, valuable assets, experienced management team and better reputation in the logistic industry, implementing strategies to improve customer relationship management skills and entering into new customer contracts with more desirable collection terms. In terms of improving customer relationship management, we plan to introduce an Enterprise Resource Planning system to further integrate various functions relating to accounts management and streamline customer relationship management process. We are also dedicated to continuously improving our services and building up brand awareness in order to gain more bargain power in negotiating customer contracts. To better manage the timing difference in receiving customer payments and supplier payments, we plan to seek more supplier contracts with longer payment terms in addition to the foregoing measures to better managing accounts receivables.

 

Investing Activities

 

Net cash used in investing activities was $292,708 for the nine months ended September 30, 2019 and was primarily attributable to the purchase of equipment of $292,708.

 

For the nine months ended September 30, 2019, cash used in investing activities was $292,708 comparing to $70,905 of cash used in investing activities for the nine months ended September 30, 2018, the increase of $221,803, or 312.8% was primarily due to the increased amount of purchase of revenue equipment via cash and no activity of disposal occurred during the nine months ended September 30, 2019.

 

Financing Activities

 

Net cash used in financing activities was $1,218,428 for the nine months ended September 30, 2019 and was primarily attributable to (i) repayments of short-term bank borrowings of $1,689,646, (ii) repayments of long-term bank borrowings of $131,142, (iii) repayments of obligations under capital leases of $212,531, (iv) repayments to related parties of $7,571,325. This cash outflow is offset by (i) the proceeds from short-term bank borrowings of $2,669,275, (ii) the amounts advanced from related parties of $5,716,941.

 

For the nine months ended September 30, 2019, cash used in financing activities was $1,218,428. Compared to $2,564,836 for the nine months ended September 30, 2018, the decrease of $1,346,408, or 52.5% was primarily due to the increased proceeds of bank borrowings and the decreased repayments to bank borrowings and obligations under capital leases.

 

Capital Expenditures

 

The Company made capital expenditures of $505,239 and $1,040,710 for the nine months ended September 30, 2019 and 2018, respectively. Our capital expenditures were mainly used for purchases of revenue equipment. We intend to fund our future capital expenditures with our existing cash balance, proceeds from this offering and other financing alternatives. We will continue to make capital expenditures to support the growth of our business.

 

For the years ended December 31, 2018 and 2017 

 

The followings summarize the key components of our cash flows for the years ended December 31, 2018 and 2017:

 

    For the Year Ended
December 31,
 
    2018     2017  
Net cash provided by operating activities   $ 3,798,997     $ 1,933,926  
Net cash (used in) provided by investing activities     (16,509 )     506,455  
Net cash used in financing activities     (3,295,414 )     (2,699,745 )
Effect of exchange rate change on cash     (31,513 )     24,744  
Net increase (decrease) in cash and cash restricted cash     455,561       (234,620 )
Cash and restricted cash at beginning of the year     352,748       587,368  
Cash and restricted cash at end of the year   $ 808,309     $ 352,748  

 

43

 

 

Operating Activities

 

Net cash provided by operating activities was $3,798,997 for the year ended December 31, 2018 and was primarily attributable to (i) net income of $2,854,887, (ii) various non-cash item of $1,666,082 including loss on disposals of equipment, provision for doubtful accounts, amortization of deferred financing fees, depreciation for plant and equipment and deferred tax expense, (iii) a $166,637 decrease of operating supplies, (iv) a $247,278 decrease of other receivables, (v) a $87,537 decrease of deposits (vi) a $564,503 increase of tax payables. This cash inflow is offset by (i) the $72,261 increase of account receivables, (ii) a $535,532 increase of prepayments as the expanded operation required more cash paid in advance to suppliers, (iii) a $803,359 decrease of accounts payable, (iv) a $376,775 decrease of other payables and accrued liabilities.

 

For the year ended December 31, 2018, cash provided by operating activities was $3,798,997 comparing to $1,933,926 for the year ended December 31, 2017, the increase of $1,865,070, or 96.4%, was primarily due to the increase of revenue. It is observed that the collection of repayments of accounts receivable was much more efficient during the year ended December 31, 2018. Our account receivables turnover days were reduced from approximately 113.09 days for the year ended December 31, 2017 to approximately 102.7 days for the year ended December 31, 2018. This is also evident by the fact that a $7,030,778 increase of revenue only brought up the accounts receivable by $72,261. If other conditions remain unchanged, the increase of revenue should had brought up the accounts receivable balance pro rata, but for the year ended 2018, the increase of revenue of $7,030,778 only raise up the accounts receivable by $72,261, which means we have improved accounts receivable collection. Our management will continue to lower the accounts receivable turnover days by implementing a number of strategies, including selecting customers with better credit, valuable assets, experienced management team and better reputation in the logistic industry, implementing strategies to improve customer relationship management skills and entering into new customer contracts with more desirable collection terms. In terms of improving customer relationship management, we plan to introduce an Enterprise Resource Planning system to further integrate various functions relating to accounts management and streamline customer relationship management process. We are also dedicated to continuously improving our services and building up brand awareness in order to gain more bargain power in negotiating customer contracts. To better manage the timing difference in receiving customer payments and supplier payments, we plan to seek more supplier contracts with longer payment terms in addition to the foregoing measures to better managing accounts receivables.

 

Investing Activities

 

Net cash used in investing activities was $16,509 for the year ended December 31, 2018 and was primarily attributable to purchase of equipment of 108,591, which is offset by proceeds from the disposal of equipment of $92,082.

 

For the year ended December 31, 2018, cash used in investing activities was $16,509 comparing to $506,455 of cash provided by investing activities for the year ended December 31, 2017, the decrease of $522,964, or -103.3% was primarily due to the decreased amount of proceeds from disposal of equipment.

 

Financing Activities

 

Net cash used in financing activities was $3,295,414 for the year ended December 31, 2018 and was primarily attributable to (i) repayments of short-term bank borrowings of $3,580,723, (ii) repayments of long-term bank borrowings of $756,544, (iii) repayments obligations under capital leases of $1,178,813, (iv) repayments to related parties of $8,547,655, (v) a capital distribution of $3,630,448. This cash outflow is offset by (i) the proceeds from short-term bank borrowings of $1,815,706, (ii) the proceeds from long-term bank borrowings of $1,361,779, (iii) the amounts advanced from related parties of $7,304,612, (iv) a $3,916,672 of capital contribution.

 

For the year ended December 31, 2018, cash used in financing activities was $3,295,414. Compared to $2,699,745 for the year ended December 31, 2017, the increase of $595,669, or 22.1% was primarily a result from increased repayment of bank borrowings and obligations under capital leases.

 

Capital Expenditures

 

The Company made capital expenditures of $1,287,404 and $584,122 for the years ended December 31, 2018 and 2017, respectively. Our capital expenditures were mainly used for purchases of revenue equipment. We intend to fund our future capital expenditures with our existing cash balance, proceeds from this offering and other financing alternatives. We will continue to make capital expenditures to support the growth of our business.

 

44

 

 

Credit Facilities

 

The table below presents our contractual obligations in relation with bank borrowings as of September 30, 2019.

 

Bank name   Term   Interest rate   Collateral/Guarantee   Date of paid off/Maturity     September 30,
2019
 
                     

(Unaudited)

 
Bank of China   From January, 2019 to March, 2020   Weighted average rate of 7.18%   Guarantee by Mr. Jinlong Yang and Shenzhen Yangang Mingzhu Logistics Co., Ltd. (“MingZhu Logistics”), a company owned by Mr. Jinlong Yang’s sister, pledge by a property owned by Mr. Jinlong Yang’s family member and collateralized by MingZhu’s receivables     March, 2020     $ 720,414  
The Industrial Bank Co., Ltd.   From April, 2018 to April, 2019   Weighted average rate of 5.65%   Guarantee by Mr. Jinlong Yang and MingZhu Logistics     April, 2020       223,848  
Zhujiang Rural Bank   From May, 2019 to May, 2020   Weighted average rate of 5.65%   Guarantee by Mr. Jinlong Yang and one of Mr. Jinlong Yang’s family member, pledged by Jinlong Yang and his private fixed deposits of RMB one million.     May, 2020       419,715  
Guangdong Nanyue Bank*   From September, 2019 to September, 2020   Weighted average rate of 8.5%   Guarantee by Mr. Jinlong Yang, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang     September, 2020       699,526   
Postal Savings Bank of China Co., Ltd.   From November, 2018 to November, 2020   Weighted average rate of 5.70%   Guarantee by Mr. Jinlong Yang and third party, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang     November, 2020       1,133,232  
Total                       $ 3,196,735  

 

* In September 2019, we entered into a one-year term line of credit agreement with Guangdong Nanyue Bank pursuant to which the Company may borrow up to $1,399,051 (RMB 10,000,000). The line of credit agreement entitles the Company to enter into several separate loan contracts under such line of credit. The Company utilized $699,526 (RMB 5,000,000) in September 2019, $279,810 (RMB 2,000,000) in November 2019 and $419,715 (RMB 3,000,000) in November 2019. For each withdraw from the line of credit, a separate loan agreement was entered into with a one-year term from the credit line withdraw date and the Company recorded these loans as short-term bank borrowings in its unaudited interim condensed consolidated financial statements. As of September 30, 2019, the unutilized line of credit was $699,526 (RMB 5,000,000).

 

The table below presents our contractual obligations in relation with capital lease and financing obligations as of September 30, 2019.

 

Institution name   Minimum
lease
payments
    Future finance changes     Present value of minimum lease payments  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   $ 665,681     $ 39,947     $ 625,734  
Zhejiang Zhongda Yuantong Finance Leasing Co., Ltd.     10,691       40       10,651  
Shanghai Chengtai Finance Leasing Co., Ltd.     243,170       11,740       231,430  
Shenzhen Qianhai Yibainian Commercial Factoring Co., Ltd     19,882       1,623       18,259  
ShanDong HOWO Auto Finance Co., Ltd.     96,663       2,801       93,862  
Chailease International Finance Corporation     827,399       158,372       669,027  
China CITIC Bank     46,038       1,450       44,588  
Total   $ 1,909,524     $ 215,973     $ 1,693,551  

 

45

 

 

The table below presents our contractual obligations in relation with bank borrowings as of December 31, 2018.

 

Bank name   Term   Interest rate   Collateral/ Guarantee   Date of paid off     December 31,
2018
 
                         
Bank of China   From March, 2018 to March, 2019   Weighted average rate of 6.53%   Guarantee by Mr. Jinlong Yang and Shenzhen Yangang Mingzhu Logistics Co., Ltd. (“MingZhu Logistics”), a company owned by Mr. Jinlong Yang’s sister, pledge by a property owned by Mr. Jinlong Yang’s family member and collateralized by MingZhu’s receivables     March 11, 2019     $ 272,707  
China Merchants Bank   From April, 2018 to April, 2019   Weighted average rate of 6.61%   Guarantee by Mr. Jinlong Yang, pledge by a property owned by Mr. Jinlong Yang     April 10, 2019       221,075  
The Industrial Bank Co., Ltd.   From January, 2018 to January, 2019   Weighted average rate of 7.90%   Guarantee by Mr. Jinlong Yang and MingZhu Logistics     January 5, 2019       145,444  
Postal Savings Bank of China Co., Ltd.   From May, 2018 to May, 2019   Weighted average rate of 5.44%   Guarantee by third party, Mr. Jinlong Yang and other family members of Mr. Jinlong Yang, pledge by properties owned by family members of Mr. Jinlong Yang     April 20, 2019       574,504  
Postal Savings Bank of China Co., Ltd.   From November, 2018 to November, 2020   Weighted average rate of 5.70%   Guarantee by Mr. Jinlong Yang and third party, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang     -       1,308,996  
Total                       $ 2,522,726  

 

The table below presents our contractual obligations in relation with capital lease and financing obligations as of December 31, 2018.

 

Institution name   Minimum lease payments     Future finance changes     Present value of minimum lease payments  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   $ 1,119,273     $ 95,195     $ 1,024,078  
Zhejiang Zhongda Yuantong Finance Leasing Co.,Ltd.     51,218       2,242       48,976  
Shanghai Chengtai Finance Leasing Co., Ltd.     404,476       29,957       374,519  
Shenzhen Qianhai Yibainian Commercial Factoring Co., Ltd     18,190       1,654       16,536  
Total   $ 1,593,157     $ 129,048     $ 1,464,109  

 

The above two tables involve both short-term and long-term obligations.

 

In December 2017, we rolled over into a one-year term line of credit agreement with Bank of China pursuant to which we may borrow up to $ 2,036,216 (RMB 14,000,000). The agreement was renewed in December 2018 for another 12 months. The line of credit agreement entitles us to enter into separate loan contracts under such line of credit. We utilized $727,220 (RMB 5,000,000) in January 2018 and $436,332 (RMB 3,000,000) in March 2018. For each withdraw from the line of credit, a separate loan was entered into with a one-year term from the credit line withdraw date and we recorded these loans as short-term bank borrowings in our consolidated financial statements. As of December 31, 2018, the loan of $727,220 (RMB 5,000,000) had been fully paid off and the unutilized line of credit was $1,599,884 (RMB 11,000,000). In January and March 2019, we utilized $262,322 (RMB 1,875,000) and $856,919 (RMB 6,125,000), respectively. As of September 30, 2019, the unutilized line of credit was $839,431 (RMB 6,000,000).

 

46

 

 

In October 2017, we entered into a one-year term line of credit agreement with China Merchants Bank pursuant to which we may borrow up to $727,220 (RMB 5,000,000). The line of credit agreement entitles us to enter into two separate loan contracts under such line of credit. We utilized $461,092 (RMB 3,000,000) in November 2017 and $290,888 (RMB 2,000,000) in April 2018. For each withdraw from the line of credit, a separate loan was entered into with a one-year term from the credit line withdraw date and we recorded these loans as short-term bank borrowings in our consolidated financial statements. As of December 31, 2018, the line of credit agreement expired.

 

In October 2018, we entered into a five-year term line of credit agreement with Postal Savings Bank of China Co., Ltd pursuant to which we may borrow up to $1,308,996 (RMB 9,000,000). The line of credit agreement entitles us to enter into separate loan contracts under such line of credit. We utilized $1,308,996 (RMB 9,000,000) in November 2018. For such withdraw from the line of credit, a separate loan was entered into with a two-year term from the line of credit withdraw date and we recorded this loan as long-term bank borrowings in our consolidated financial statements. As of December 31, 2018, the unutilized line of credit was $0.

 

Guarantees and Commitments

 

Guarantee Commitments

 

In November 2017, MingZhu entered into guarantee agreements for a capital lease of $2,531,453 to a subcontractor. The guarantee period was from November 2017 to January 2022. In November 2017, MingZhu entered into a guarantee agreement pursuant to which MingZhu Logistics provided guarantee for the above-mentioned capital lease.

 

Lease Commitments

 

The Company entered into a lease for office space located in Shenzhen, Guangdong, China for the period from November 21, 2018 to November 20, 2023, with a rent-free period from November 21, 2018 to November 20, 2019. The total future minimum lease payments under the non-cancellable operating lease with respect to the office December 31, 2018 are payable as follows:

 

12 months ending September 30,      
2020   $ 509,747  
2021     141,288  
2022     104,359  
2023     104,359  
2024     14,494  
Future minimum operating lease payments   $ 874,247  

 

The Company leases certain of its revenue equipment under capital lease agreements. The terms of the capital leases expire at various dates through May 2021. The Company has option to purchase the revenue equipment for a nominal amount at the end of the lease term. The company also obtains installment loans for payment of revenue equipment’s insurance.

 

We have capital lease commitments for revenue equipment and installment loans summarized for the following fiscal years:

 

    Minimum lease payments     Present value of minimum lease payments  
12 months ending September 30,            
2020   $ 1,136,497     $ 992,983  
2021     586,813       529,251  
2022     186,214       171,317  
Thereafter     -       -  
Total     1,909,524       1,693,551  
                 
Less: amount representing interest     (215,973 )     -  
                 
Present value of minimum lease payments   $ 1,693,551       1,693,551  
                 
Less: current maturities             (992,983 )
                 
Capital lease obligations, long-term           $ 700,568  

 

47

 

 

Contingencies

 

From time to time, the Company is party to certain legal proceedings, as well as certain asserted and unasserted claims.

 

A contract dispute exists between MingZhu, MingZhu Pengcheng and Shengxin Wang. According to the Civil Judgement issued by the Shenzhen Intermediate People’s Court on August 23, 2018, Shengxin Wang was ordered to pay $3,098 (RMB 21,303) and overdue interests thereof and pay $0.15 (RMB 1) as the consideration of the vehicles to MingZhu Pengcheng and after that, MingZhu Pengcheng and MingZhu should respectively assist to transfer ownership of one tractor and one trailer to Shengxin Wang. According to the Civil Decision of Guangdong Provincial Higher People’s Court issued on December 20, 2018, Shengxin Wang’s application for retrial of the above Civil Judgement was rejected. On March 22, 2019, the Shenzhen Yantian People’s Court issued an Enforcement Order to MingZhu and MingZhu Pengcheng, which ordered MingZhu and MingZhu Pengcheng to perform relevant obligations as required by the foresaid judgement or otherwise the judgement would be enforced by the court. On May 29, 2019, a cash balance equal to Shenxin Wang’s payment obligation was frozen in his bank account and meanwhile, Shengxin Wang took over the tractor from MingZhu Pengcheng. According to the inquiry notes taken by the Yantian People’s Court Enforcement Bureau on May 30, 2019, MingZhu has made preparation for handover of the trailer to Shengxin Wang.  As of the date of this prospectus, Shengxin Wang has taken over the trailer, the balance half of the vehicles, from MingZhu, and the case has been concluded.

 

However, regarding the same dispute, Shengxin Wang filed another lawsuit against MingZhu Pengcheng. According to the Civil Indictment filed by Shengxin Wang (the plaintiff) on February 26, 2019, Shengxin Wang requested that MingZhu Pengcheng (the defendant) be ordered to compensate for the stoppage loss of $694,098 (RMB 4,772,269). The nature of the case was a property damage compensation dispute. According to the response notice issued by the Shenzhen Yantian People’s Court on March 20, 2019, the court has accepted this case. According to the Civil Judgment issued by the Yantian District People’s Court in Shenzhen City, Guangdong Province on August 30, 2019, the court ruled that MingZhu Pengcheng should pay damages in the amount of $29,627 (RMB 203,700) to Shengxin Wang and rejected Shengxin Wang’s other claims. MingZhu Pengcheng submitted an Appeal Petition to the Shenzhen Intermediate People’s Court on September 18, 2019, requesting a change in the judgment of first instance and changing the judgment so that MingZhu Pengcheng will not have to pay the damages to Shengxin Wang. MingZhu Pengcheng has paid the case acceptance fee. As the date of this prospectus, the case is pending for appeal court hearing.

 

On September 4, 2018, MingZhu received an arbitration award from the Shenzhen Arbitration Committee for Labor Disputes, which ruled that MingZhu was required to pay for worker compensation to Qing Tan, Xiangyang, Haiyang Shi, and Hanxiao Shi in the aggregate amount of $65,223 (RMB 448,440). Regarding the same dispute, MingZhu filed two lawsuits to the Shenzhen Yantian People’s Court, both of which were dismissed by the court. MingZhu appealled to the Shenzhen Intermediate People’s Court, both of which were also rejected. On December 21, 2018, the Shenzhen Yantian People’s Court issued an execution order which ruled that MingZhu’s property should be used to enforce its obligations under the foresaid arbitration award. On February 22, 2019, $74,961 (RMB 510,272) from MingZhu’s bank account was enforced by the court. Such amount involves the damages and other charges resulting from delayed performance under the foresaid arbitration award. MingZhu filed an execution dissidence to the Shenzhen Yantian People’s Court on March 8, 2019, which was dismissed by the court on April 16, 2019. According to the execution order issued by the Shenzhen Yantian People’s Court on June 14, 2019, MingZhu has performed all its obligations under the arbitration award. However, MingZhu has applied to the Shenzhen Intermediate People’s Court for a reconsideration on the dismissed execution dissidence. As of the date of the prospectus, the Shenzhen Intermediate People’s Court has not issued a decision on such request for reconsideration.

 

On August 22, 2019, Sujin Wei (the plaintiff) submitted a Civil Complaint to the Yangjiang Yangdong District People’s Court against China Pacific Property Insurance Co., Ltd. Shenzhen Branch, MingZhu and two other defendants. The complaint requested that China Pacific Property Insurance Co., Ltd. Shenzhen Branch shall make the death and disability compensation to the plaintiff in the amount of $15,999 (RMB 110,000) and compensate the plaintiff of $44,699 (RMB 307,328.02) within the third party liability insurance limit and also requested that defendants Shengming Zheng and MingZhu shall be jointly and severally liable for the foregoing claims, and the litigation fee in this case shall be borne by the four defendants. According to the response notice issued by the Yangjiang Yangdong District People’s Court on the September 18, 2019, this case has been filed on September 4, 2019. The court held a hearing of this case on October 31, 2019. As of the date of the prospectus, the court has not issued a judgement.

 

Contractual Obligations

 

As of September 30, 2019, the future minimum payments under certain of our contractual obligations were as follows:

 

    Payment due by period  
Contractual obligations   Total     Less than 1 year     1-3 years     3-5 years     More than
5 years
 
                               
Bank Borrowings   $ 3,196,735     $ 2,231,389     $ 965,346     $ -     $           -  
Capital Lease Obligations     1,693,551       992,983       700,568       -       -  
Operating Lease Obligations     874,247       509,747       350,006       14,494       -  
Total   $ 5,764,533     $ 3,734,119     $ 2,015,920     $ 14,494     $ -  

 

Off-Balance Sheet Arrangements

 

We have no off-balance sheet arrangements including arrangements that would affect our liquidity, capital resources, market risk support and credit risk support or other benefits.

 

48

 

 

Critical Accounting Policies and Estimates

 

The preparation of financial statements in conformity with GAAP requires that we make estimates and assumptions. In certain circumstances, those estimates and assumptions can affect amounts reported in the accompanying consolidated financial statements and notes. In preparing our financial statements, we have made our best estimates and judgments of certain amounts included in the financial statements, giving due consideration to materiality. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable. Application of the accounting policies described below involves the exercise of judgment and use of assumptions as to future uncertainties and, as a result, actual results could differ from these estimates. The following is a brief discussion of our critical accounting policies and estimates. 

 

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 our consolidated financial statements include the useful lives of property and equipment, impairment of long-lived assets, allowance for doubtful accounts, provision for contingent liabilities, revenue recognition, and deferred taxes and uncertain tax position. Actual results could differ from these estimates.

 

Accounts Receivable and allowance for doubtful accounts

 

Accounts receivables are stated and carried at original invoiced amount. Accounts are considered overdue after 90 days. In establishing the required allowance for doubtful accounts, management considers historical collection experience, aging of the receivables, the economic environment, industry trend analysis, and the credit history and financial conditions of the customers. Management reviews its receivables on a regular basis to determine if the bad debt allowance is adequate and adjusts the allowance when necessary. Delinquent account balances are written-off against allowance for doubtful accounts after all means of collection have been exhausted and that the likelihood of collection is not probable.

 

Property and equipment, net

 

Property and equipment are stated at cost net of accumulated depreciation and impairment. Depreciation is provided over the estimated useful lives of the assets using the straight-line method from the time the assets are placed in service, after considering the estimated residual value which is 5% of costs. Estimated useful lives are as follows:

 

Classification   Estimated
Useful Life
Buildings and improvements   10 years
Computer and office equipment   3-5 years
Revenue equipment*   5 years

 

* Revenue equipment are trucks and trailers only used for providing trucking services.

 

The cost and related accumulated depreciation 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 comprehensive income. Expenditures for maintenance and repairs, which do not materially extend the useful lives of the assets, are charged to earnings 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 to determine whether subsequent events and circumstances warrant revised estimates of useful lives.

 

Leases

 

The Company accounts for all significant leases as either operating or capital. At lease inception, if the lease meets any of the following four criteria, the Company will classify it as a capital lease: (a) transfer of ownership to lessee at the end of the lease term, (b) bargain purchase option, (c) lease term is equal to 75% or more of the estimated economic life of the leased property, or (d) the present value of the minimum lease payments is 90% or more of the fair value of the leased asset. Otherwise, the lease will be treated as an operating lease.

 

Impairment of long-lived assets

 

Long-lived assets, including property and equipment 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 assets based on the undiscounted future cash flows the assets are expected to generate and recognize an impairment loss when estimated undiscounted 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 will reduce the carrying amount of the asset to its estimated fair value based on a discounted cash flows approach or, when available and appropriate, to comparable market values. For the nine months ended September 30, 2019 and 2018 and years ended December 31, 2018 and 2017, no impairment of long-lived assets was recognized.

 

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 us.

 

49

 

 

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 of the fair value hierarchy are as follows:

 

  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 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.

 

Financial instruments included in current assets and current liabilities are reported in the consolidated balance sheets at face value or cost, which 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 elected to adopt Accounting Standards Codification (ASC) Topic 606, Revenue from Contracts with Customers (ASC 606), effective as of January 1, 2017. Accordingly, the consolidated financial statements for the years ended December 31, 2018 and 2017 are presented under ASC 606. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The Company elected the modified retrospective method which required a cumulative adjustment to retained earnings instead of retrospectively adjusting prior periods. The adoption of ASC 606 did not have material impact on the Company’s consolidated financial statements.

 

Revenues are generated from provision of trucking services. For each trip, the Company has a single performance obligation, to transport our customer’s freight from a specified origin to a specified destination, with the transit period typically being less than three days.

 

The management have determined that revenue recognition over the transit period provides a reasonable estimate of the provision of services to our customers as our obligation is performed over the transit period. For loads picked up during the reporting period, but delivered in a subsequent reporting period, revenue is allocated to each period based on the transit time in each period as a percentage of total transit time.

 

We utilize independent contractors and third-party carriers in the performance of certain transportation services. While various ownership arrangements may exist for the equipment utilized to perform these services, including company-owned, owner-operator owned, and third-party carriers, revenue is generated from the same base of customers. We evaluate whether our performance obligation is a promise to transfer services to the customer (as the principal) or to arrange for services to be provided by another party (as the agent) using a control model. Our evaluation determined that we are in control of establishing the transaction price, managing all aspects of the shipments process and taking the risk of loss for delivery, collection, and returns. Based on our evaluation of the control model, we determined that all of our major businesses act as the principal rather than the agent within their revenue arrangements and such revenues are reported on a gross basis.

 

The Company applies the practical expedient in Topic 606 that permits the Company not to disclose the aggregate amount of transaction price allocated to performance obligations that are unsatisfied as of the end of the period as the Company’s contracts have an expected length of one year or less. The Company also applies the practical expedient in Topic 606 that permits the recognition of incremental costs of obtaining contracts as an expense when incurred if the amortization period of such costs is one year or less. These costs are included in purchased transportation costs.

 

The Company’s performance obligations represent the transaction price allocated to future reporting periods for freight services started but not completed at the reporting date. This includes the unbilled amounts and accrued freight costs for freight shipments in transit. As of September 30, 2019, the Company has $6,673 of unbilled amounts recorded in accounts receivable and $5,777 of accrued freight costs recorded in accounts payable.

 

Income taxes

 

The Company accounts for income taxes in accordance with the laws of the relevant tax authorities. 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. 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 profit 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. 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. No penalties and interest incurred related to underpayment of income tax are classified as income tax expense in the period incurred.

 

50

 

 

Recent Accounting Pronouncements

 

See Note 2 to the consolidated financial statements included elsewhere in this prospectus for a discussion of recently issued accounting standards.

 

Quantitative and Qualitative Disclosures about Market Risk and Credit Risk

 

Interest Rate Risk

 

Our market risk is affected by changes in interest rates. Historically, we have used a combination of fixed rate and variable rate obligations to manage our interest rate exposure. Fixed rate obligations expose us to the risk that interest rates might fall. Variable rate obligations expose us to the risk that interest rates might rise. We currently do not have any interest rate swaps although we may enter into such swaps in the future.

 

We are exposed to variable interest rate risk principally from our existing term loan facility and our existing revolving credit facility. We are exposed to fixed interest rate risk principally from equipment notes and mortgages. As of September 30, 2019, we had bank borrowings totaling $3,196,735 comprised of $2,077,494 variable rate borrowings and $1,119,241 fixed rate borrowings. At December 31, 2018, we had bank borrowings totaling $2,522,726 comprised of $2,086,394 of variable rate borrowings and $436,332 of fixed rate borrowings. At December 31, 2017, we had bank borrowings totaling $3,843,967 comprised of $3,843,967 of variable rate borrowings and $0 of fixed rate borrowings. Accordingly, holding other variables constant (including borrowing levels), the Group’s interest rate risk is mainly concentrated on the fluctuation of interest rates quoted by The People’s Bank of China arising from the Company’s RMB denominated bank borrowings. If interest rates had been one percentage point higher/lower and all other variables were held constant, our profit for the nine months ended September 30, 2019 and for the years ended December 31, 2018 would decrease/increase by approximately $20,000 and $20,000, respectively. Management believes that the influence of such change has no material impact on the Company’s consolidated financial statements.

 

Credit Risk

 

Credit risk is controlled by the application of credit approvals, limits and monitoring procedures. We manage credit risk through in-house research and analysis of the Chinese economy and the underlying obligors and transaction structures. We identify credit risk collectively based on industry, geography and customer type. In measuring the credit risk of our sales to our customers, we mainly reflect the “probability of default” by the customer on its contractual obligations and consider the current financial position of the customer and the current and likely future exposures to the customer.

 

Liquidity Risk

 

We are also 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 and related parties to obtain short-term funding to cover any liquidity shortage.

 

Foreign Exchange Risk

 

While our reporting currency is the U.S. dollar, almost all of our consolidated revenues and consolidated costs and expenses are denominated in RMB. Most of our assets are denominated in RMB. As a result, we are exposed to foreign exchange risk as our revenues and results of operations may be affected by fluctuations in the exchange rate between the U.S. dollar and RMB. If the RMB depreciates against the U.S. dollar, the value of our RMB revenues, earnings and assets as expressed in our U.S. dollar financial statements will decline. We have not entered into any hedging transactions in an effort to reduce our exposure to foreign exchange risk.

 

51

 

 

OUR INDUSTRY

 

We have engaged Frost & Sullivan to prepare a commissioned industry report that analyzes the PRC transportation industry. All information and data presented in this section have been derived from Frost & Sullivan’s industry report, unless otherwise noted. The following discussion includes projections for future growth, which may not occur at the rates that are projected or at all.

 

The trucking industry in China is one of the largest in the world. Trucking is a form of road transportation that is a part of the transportation system. It is vital in the connection of other modes of transportation such as rail, waterway, and civil aviation. The revenue of trucking service market in China has from RMB 4,771.3 billion (approximately $694.0 billion) in 2012 to RMB 5,161.8 billion (approximately $750.8 billion) in 2017, representing a CAGR of 1.6 percent. Looking forward, the revenue of trucking service market in China is expected to increase from RMB5.16 trillion (approximately $750.8 billion) in 2017 to RMB5.70 trillion (approximately $829.7 billion) in 2021, representing a CAGR of 2.5 percent.

 

 

Source: Frost & Sullivan July 2019

 

Freight turnover has seen an increase of CAGR of 2.5%, from 17,377 billion ton per kilometer in 2012 to 19,613 billion ton per kilometer in 2017, with the eastern region of China contributing to the highest percentage of freight turnover.

 

 

Source: Frost & Sullivan July 2019

 

Tremendous growth has been observed in the trucking industry and this can be attributed to the following:

 

1) The growth of E-commerce in China

 

2) Domestic economic growth in China

 

3) Government support through Official Policies and Planning Support

 

4) Infrastructure Improvement

 

As trucking services are the primary choice for the E-commerce market, the trucking industry has been able to share in the prosperity of the E-commerce boom. Upgrades in Information Technology across all sectors has reduced the operating costs for trucking businesses and improved their overall performance by allowing for better fleet, employee, and customer management, and as such, trucking businesses have been able to provide better service to their customers. There has been a shift in focus for China’s trucking service companies where they have moved from working on expanding to concentrating on developing and improving their existing systems instead.

52

 

 

Among all the growth factors, domestic economic growth has had the strongest impact. China’s GDP with a CAGR1 of 8.7% from 2013 to 2018 has been favorable for transportation revenues. Domestic economic growth is expected to remain as supported by the 13th five-year plan that aims to create economic balance, inclusiveness, and sustainability in China. 

 

 

Source: Frost & Sullivan July 2019

 

Moreover, as disposable incomes continue to rise, we expect to see even higher earnings in the transportation industry. The reason for such higher earnings is that higher disposable income will bring with it higher purchasing power and higher standard of living. From 2012 to 2017, per capita annual disposable income increased from RMB 16,510 ($2,401) to RMB 25,974 ($3,778) with a CAGR of 9.5%. Such number is expected to reach RMB 36,264 ($5,274) by 2021.

 

 

Source: Frost & Sullivan July 2019 

 

 

1 Compounded Annual Growth Rate

 

2 Published by the National Bureau of Statistics of China

 

53

 

 

The effects have become more noticeable as the population of China continues to climb steadily. From 2012 to 2017, the total population grew from 1,354 million to 1,390.1 million. Urbanization rates have also increased from 52.6% in 2012 to 58.5% in 2017, and is expected to reach 64.3% in 2021.

 

 

Source: Frost & Sullivan July 2019

 

China’s government has played a large role in supporting the growth of the transportation industry through its policies and regulations. In the previous 12th five-year plan for the road transport industry, China’s government focused its efforts on supporting the road transport industry through vehicle and equipment upgrades, providing support to new market entrants, and information technology enhancements. In the most recent 13th 5-Year Plan for the Transportation Industry, the PRC Ministry of Transport points out that it will focus on building a unified and open integrated transport market system, enhance the service efficiency of integrated transport corridors, improve the service quality of integrated transportation hubs, deepen the capacity building of transport security and promote the joint development of transport services and related industries.

 

Infrastructure improvements have been vital to China’s economic success. During China’s five-year plan from 2011 to 2015, China had constructed 4,580,000 kilometers of highways and 80,000 kilometers of expressways.

 

Current Environment

 

Trucking services are closely linked to the economic and road infrastructure and development in a country. As illustrated in the diagram below, China’s trucking services industry has reached the “Perfecting Stage” of its cycle.

 

 

Source: Frost & Sullivan July 2019

 

54

 

 

From 2013 to 2018, China’s road mileage has increased from 4,356.2 thousand kilometers to 4,846.5 thousand kilometers, with a CAGR of 2.2%. This growth is expected to continue into 2023 with road mileage reaching 5,229.8 kilometers as China continues to raise its investment into highway construction.

 

 

Source: Frost & Sullivan July 2019

 

Key Success Factors for PRC Transportation Industry Participants

 

Expanding Transportation Fleet for Scale Effect In the trucking service market, large fleet’s utilization rate of vehicles is higher than the small-to-medium sized fleet. With the expansion of large companies on the demand side, clients need large transportation fleet to ensure the stability of the carriage of goods and the breadth of the transportation service area. Meanwhile, companies with large fleet team are more likely to obtain and maintain high quality clients. Therefore, expanding container fleet is beneficial for obtaining scale effect and reducing operation costs.

 

Applying Digital Tools for Improving Operation and Management Digital tools can be used to monitor the vehicle driving conditions and report solutions to administration in time. Therefore, unsafe driving behaviors such as speeding, drunk driving and fatigue driving are able to be effectively controlled by digital monitoring equipment. Moreover, monitoring and analyzing vehicles by means of digital tools for improving the operation and management of the transportation companies is quite common in some European and American countries.

 

Combining the Own Advantages and Introducing Differentiated Products The trucking service market is highly fragmented with fierce competition. Strong market participants know how to arrange their transport network and exploit differentiated products based on their own advantages. For example, considering the companies’ geographic position, fleet scale, customer relations and financial capacity, companies could choose to invest in some areas with less competition and further improve the overall competitiveness through the success in certain segmented market.

 

Using the Internet of Things to Improve Operational Efficiency The Internet of things (IOT) is the network of physical devices, vehicles and other items embedded with electronics, software, sensors, actuators, and network connectivity which enables these objects to connect and exchange data. The IOT allows objects to be sensed or controlled remotely across existing network infrastructure and resulting in improved efficiency, accuracy and economic benefit. Hence, trucking service companies with better application of IOT are more likely to be successful in competition.

 

Entry Barriers

 

Transportation Network The scale of transportation network plays an important role in the development and expansion of trucking service enterprises as well as one of the entry barriers for new entrant of the market. Trucking service provider with multiple transportation lines are more attractive to customers in various industries and regions, and have ability to cope with different customers’ demands on transportation routes.

 

Capital Investment Before doing the business, trucking service enterprises need to configure a lot of manpower and equipment, including vehicles, ability to adapt to variety of goods, and operating staff in each business line. Moreover, with the expansion of business scale and the improvement of customer’s requirements on the transportation service quality, trucking service enterprises need to apply and update information system and automatic systems to improve service quality and operational efficiency. Therefore, the trucking service market has a high demand for huge and continuous capital investment for new entrants.

 

Customer Relationship Experienced trucking service enterprises are able to achieve stable sources of business based on their long-term cooperative relationship with customers. In addition, in order to maintain the service quality, customers usually choose suppliers with a good reputation and track record and are unlikely to change their suppliers frequently. This poses a significant barrier to the new entrants.

 

55

 

 

Guangdong

 

The transportation industry in Guangdong has grown alongside its economy and trade. In 2018, total road freight traffic volume reached 3.05 billion tons, with a CAGR of 3.1% from 2013 to 2018.

 

 

Source: Frost & Sullivan July 2019

 

Road transportation continues to be the most popular form of transportation among other tools such as rail, waterway, and civil aviation. However, in terms of freight turnover, waterway transportation took the highest percentage whilst road transportation accounted for 12.9%. Guangdong accounted for approximately 14.2% of freight turnover in 2017 and has the highest GDP figure among all provinces in China. With its increasing social demand for consumer goods and the development of E-Commerce, the total road freight traffic volume is expected to reach 3.52 billion tons in 2023.

 

Recently, the total revenue of the trucking service market reached RMB 92.8 billion ($13.5 billion) in 2017, with a CAGR of 9.2% from 2012 to 2017. Revenue is expected to continue growing to RMB 124.2 billion ($18.1 billion) in 2022.

 

 

Source: Frost & Sullivan July 2019

 

Several factors explain the success of the transportation industry in the Guangdong region. Firstly, its advantageous geographic location. Guangdong borders the Southeast coast, also known as the beginning of “The Silk Road.” As such, it has access to many ports and is ideal for domestic and foreign trade. Secondly, Guangdong has taken efforts to improve their infrastructure significantly, an example being the revisions that have taken place in Shenzhen where ports have been reconstructed to handle higher shipping tonnage and container handling. Lastly, Guangdong’s government has issued many supportive policies to standardize and modernize the logistics industry, one of which is known as Guangdong, such as Plan for Modern Logistics Development in Guangdong Province (2016-2020). Encouraged by those policies, the logistics industry in Guangdong is expected to be standardized and modernized, will facilitate the growth of the trucking service market in Guangdong.

 

According to the Frost & Sullivan July 2019 report, among all the modes of transport in China, such as railroad and waterway, road transportation covers the highest percentage, especially in the Guangdong region, where 72.1% of total freight volume was from road transportation in 2017.

 

56

 

 

Xinjiang

 

Xinjiang houses a crucial segment of the Silk Road leading to Euroasia. According to the Frost & Sullivan July 2019 report, in the past 7 years, Xinjiang’s GDP has risen from approximately RMB 0.75 trillion ($0.11 trillion) in 2012 to RMB 0.96 trillion ($0.14 trillion) in 2016 and is expected to rise to RMB 1.42 trillion ($0.20 trillion) in 2021. Furthermore, Xinjiang’s road mileage had been increasing steadily from 165.9 thousand kilometers in 2012 to 182.1 thousand kilometers in 2016. Despite a slow start to trucking services as compared to the central and eastern regions of China, Xinjiang is expected to grow in this area under the “One Belt, One Road” initiative. The volume of road freight in Xinjiang has increased from 596.2 million tons in 2013 to 850.3 million tons in 2018, equating to a CAGR of 7.4%. Such increase is largely a result of the continuous road upgrading and economic development in the area. Estimates show that volume of road freight will eventually reach 1,154.1 million tons in 2023.

 

 

 

 

Source: Frost & Sullivan July 2019

 

57

 

 

Due to its ideal geographical location for trade, Xinjiang benefits from national policies that are focused on creating a more welcoming business environment via better taxation and financing systems. Policies such as those issued by the People’s government of Xinjiang autonomous region aim to finish construction of a transportation hub in Xinjiang by 2030. These observations point to Xinjiang being a promising market to develop in.

 

Competition

 

China’s trucking industry is highly competitive and fragmented with thousands of companies, none of which dominate the market. More specifically, in the Guangdong region, the top 5 trucking service providers, one of which is our company, collectively only own 0.71% of the total market in 2017. Service and price are the principal factors considered by customers in the trucking industry.

 

 

 

Source: Frost & Sullivan July 2019

 

58

 

 

Entry barrier for new entrants remains high. One of these obstacles is having an established transportation network. Trucking service providers with multiple transportation lines will be able to cover more industries and geographic regions and will therefore have more exposure. In addition, they have the ability to meet customers’ demands on transportation routes. Another entry barrier is the heavy investments, initially and subsequently needed for expansion. These investments are required for manpower, equipment, and vehicles. Subsequently, funds are needed to upgrade information systems to keep up with the competition, especially to provide quality service. Lastly, customers prefer working with businesses with an existing track record and a strong reputation. These relationships formed over a long period of time can’t be replicated by new entrants. As such, it is predicted that due to the cost and complexity of entering and surviving in the transportation industry, the economic and competitive pressures will force smaller competitors to either exit, or, be acquired in the future. We believe being larger will work to our competitive advantage and put us in a position primed to acquire smaller companies.

 

Supply

 

Several external factors affect the transportation industry, specifically operational costs. The most notable ones are manpower, fuel, and rubber. China has been seeing a shortage of drivers. Drivers holding the A2 driving license are in most demand as they are able to drive heavy trucks and trailer-towing vehicles. Due to the shortage and high turnover of A2 drivers, their salaries have seen a continuous increase over the years. In 2017, the average monthly salary of an A2 driving licensed driver reached RMB 8,515. The average monthly salary of a driver in the trucking service industry is projected to reach RMB 10,780 ($1,580) in 2021.

 

  

Source: Frost & Sullivan July 2019

 

59

 

 

Chinese diesel prices are closely linked to international crude oil and domestic supply and demand. Diesel prices took a dip in 2016, but have since stabilized, and are expected to grow to RMB 7,261.5 ($1,056.1) per ton in 2021. Decreasing diesel prices from 2012 to 2017 were due to a slowdown in China’s economic growth, raised interest rates, and higher oil production levels from the US and Iran. We believe the impact of fuel prices will be lessened by our investment into LNG-powered vehicles and our strategy to enter the intermodal rail business.

 

  

Source: Frost & Sullivan July 2019

 

Rubber is a main component of our vehicle tires, due to an oversupply of rubber, prices largely decreased from 2012 to 2015. After which prices bottomed in 2016 and has since rose due to a decline in rubber production. Rubber prices have recovered and are expected to stabilize to approximately RMB 13,543.1 ($1,969.8) per ton in 2021.

 

 

Source: Frost & Sullivan July 2019

 

60

 

 

Future

 

 

Source: Frost & Sullivan July 2019

 

61

 

 

China’s macro economic growth and improvements with infrastructure, road transportation is anticipated to reach 50.9 billion tons in 2023, with CAGR of 5.1% from 2018 to 2023.

 

In the Guangdong region, the revenue of trucking service is expected to reach RMB 124.2 billion ($18.1 billion) in 2022. In 2018, road freight traffic in China reached 39.6 billion tons. Total road freight volume in Guangdong is expected to grow at a CAGR of 2.9% from 2018 to 2023.

 

As road freight traffic volumes grow in China, the growth in revenue of trucking services will subsequently follow. Revenue of trucking services in China is expected to increase from RMB 5,161.8 billion ($750.8 billion) 2017 to RMB 5,704.8 billion ($829.7 billion) in 2021, representing a CAGR of 2.5%.

 

 

Source: Frost & Sullivan July 2019

 

With the “One Belt, One Road” strategy well on its way, China’s transportation network is expected to become more efficient and more cohesive, with better linkages between different modes of transport. Logistic parks are being planned for construction for a cluster effect. In addition, the industry is expected to become more environmentally friendly with the elimination of high-pollution trucking vehicles. As information upgrades take place, trucking companies will shift their focus from extensive expansion to intensive development, and as such, operational costs are expected to go down. It is also expected that there will be a higher concentration of mid to large-sized companies, as smaller ones consolidate, become acquired, or exit the industry.

 

In the future, underpinned by the macroeconomy and the further improvement of infrastructure in China, the road transportation industry in China is expected to grow continuously. In 2023, the road freight traffic volume in China is anticipated to reach 50.9 billion tons with a CAGR of 5.1% from 2018 to 2023. With the growing economy and increasing social demand on consumer goods as well as the development of e-commerce, the transportation industry in Guangdong is expected to grow steadily. In 2023, total road freight traffic volume in Guangdong is expected to reach 3.52 billion tons, with a CAGR of 2.9% from 2018 to 2023. As for Xinjiang, with the sustainable growth of Xinjiang’s economy and the increasing demand of Xinjiang’s resource products, it is expected that the road freight traffic volume in Xinjiang will increase from 850.3 million tons in 2018 to 1,154.1 million tons in 2023, representing a CAGR of 6.3%.

 

In addition to the anticipated growth of the PRC transportation market, the industry has observed the following trends:

 

Development of Comprehensive Transportation Network The coordination of different modes within the PRC transportation network is relatively poor. In the future, through scientific planning and design, different modes of transportation can achieve a reasonable connection. For instance, roads, waterways, railways, aviation, and pipelines can be linked to each other smoothly. With the establishment of comprehensive transportation network, trucking can be well connected with other transportation modes, the efficiency of trucking is expected to be improved greatly in Guangdong and the PRC.

 

Environmentally-friendly Transportation Vehicles With guidance from the government’s policies and market regulation, the trucking service market in Guangdong will become increasingly environmental, trucking vehicles are expected to be upgraded and reconstructed. High-polluting trucking vehicles are anticipated to be eliminated gradually in the future. Besides, Guangdong’s government attaches great importance in renovating the transportation stations to promote the green development of trucking service market in Guangdong.

 

Increasing Industry Concentration At present, a large number of small-scaled trucking providers are faced with some problems such as similar operating structure, low management level, high competitive pressure and low profitability. With the standardization of the logistics industry and integration of transportation supply chain resources, the concentration of trucking service market is expected to be increased in the future, which is likely to bring more opportunities for large and standardized trucking provider.

 

62

 

 

BUSINESS

 

OVERVIEW

 

We are one of the fastest growing 3A-grade trucking services provider in China with over 17 years of experience in the transportation industry. We formed our first operating subsidiary in 2002 to engage in the business of trucking services and subsequently formed four other wholly owned subsidiaries. Our current operations are conducted through our subsidiaries. We experienced a steady growth in our business in recent years and our revenue increased by 5.9% for the nine months ended September 30, 2019 comparing to the same period in 2018 with a higher growth of 34.1% in fiscal year 2018 compared to fiscal year 2017. As a result of our continuous growth, we have become the second largest transportation company in the Guangdong region and we have been recognized and accredited by the China Federation of Logistics and Purchasing as a 3A-Grade trucking service provider.

 

We operate a truckload fleet with 139 tractors and 90 trailers, all of which are owned by us. Given the large scale of our fleet, we offer both network density and broad geographic coverage to meet our customers’ diverse transportation needs within the PRC. Our transportation services operate out of two terminals, one in the Guangdong region, and one in the Xinjiang region. Our business has created a successful business model that has allowed us to expand our customer base and market coverage whilst maintaining good relations with our existing customers.

 

Our customers primarily include sizeable logistics companies, freight forwarders and warehouse operators in the PRC. During the nine months ended September 30, 2019, and 2018, we had 37 and 40 customers, and sales to our top five customers accounted for approximately 62.3% and 64.8%, respectively. During the fiscal years 2018 and 2017, we had 40 and 36 customers, respectively, and our top five customers accounted for approximately 63.9% and 71.4% of our total revenue, respectively.

 

We generate revenue from our trucking service business. Our total revenue was $20,735,260 and $19,588,457 for the nine months ended September 30, 2019 and 2018, respectively, representing an increase of approximately 5.9%. We recorded an income from operation of approximately $1,639,260 and $2,862,641 for the nine months ended September 30, 2019 and 2018, respectively, representing an decrease of approximately 42.7%. For the nine months ended September 30, 2019 and 2018, our revenue generated from Guangdong province accounted for 50.8% and 55.4% and Xinjiang province accounted for 49.2% and 44.6%, respectively, of our total revenue. The following table sets forth the breakdown of our revenue generated from our trucking services from the regional terminals in Guangdong and Xinjiang during the past two fiscal years:

 

    Nine Months Ended September 30, 2019     Nine Months Ended September 30, 2018  
    Revenue     %     Revenue     %  
Terminal 1 GUANGDONG                        
Across different provinces and within Guangdong province   $ 10,525,360       50.8 %   $ 10,860,968       55.4 %
                                 
Terminal 2 XINJIANG                                
Within Xinjiang Province   $ 10,209,900       49.2 %   $ 8,727,489       44.6 %
Total   $ 20,735,260       100     $ 19,588,457       100  

 

63

 

 

Our total revenue was $27,646,789 and $20,616,011, respectively, for fiscal years 2018 and 2017, representing an increase of approximately 34.1%. We recorded an income from operation of approximately $4,034,766 and $2,317,476 for fiscal years 2018 and 2017, respectively. For the fiscal years ended December 31, 2018 and 2017, our revenue generated from Guangdong province accounted for 52.2% and 75.3% and Xinjiang province accounted for 47.8% and 24.7%, respectively, of our total revenue. The following table sets forth the breakdown of our revenue generated from our trucking services from the regional terminals in Guangdong and Xinjiang during the past two fiscal years:

 

    FY2018     FY2017  
    Revenue     %     Revenue     %  
Terminal 1 GUANGDONG                                
Across different provinces and within Guangdong province   $ 14,426,772       52.2 %   $ 15,514,679       75.3 %
                                 
Terminal 2 XINJIANG                                
Within Xinjiang Province   $ 13,220,017       47.8 %   $ 5,101,332       24.7 %
Total   $ 27,646,789       100     $ 20,616,011       100  

 

Our mission has been and will continue to be a trusted solution provider in China offering punctual, cost-effective, capable and reliable trucking services to businesses in the PRC by maintaining a sizeable fleet of transportation vehicles of our own complemented by reliable subcontracting arrangements. Given that the transportation industry in many regions of China is still underrepresented, we aim to capture additional market share by leveraging our strengths we have developed during the past 17 years as described in “Competitive Strength” below and continue to grow our business by implementing a number of strategies as described in “Our Strategies” below.

 

COMPETITIVE STRENGTH

 

We believe that the following competitive strengths are the key factors that have contributed to our success to date:

 

Substantial Industry Experience

 

We are an established trucking services provider with over 17 years of operation in the transportation industry in the PRC. As of the date of this prospectus, we are able to mobilize a sizeable fleet of 139 tractors and 90 trailers, and coupled with our subcontractors, we are able to provide a fleet of 200 tractors and 200 trailers on a stable basis. We have approximately 200 drivers who can travel an average of approximately 52,700 kilometers per day, with a maximum capacity of approximately 65,000 kilometers per day. The size of our fleet has allowed us to cater to the needs of all our customers in a timely manner.

 

To establish a solid reputation in the transportation industry in the PRC, we focus on the quality of our trucking services to ensure that we are able to meet the quality standards expected from our customers. Our focus on quality covers various areas such as vehicle reliability, service reliability, flexible and customizable service offerings for our customers, as well as responsiveness to customer feedback, and continuous process improvement. Please refer to the paragraph headed “Quality Assurance” in this section for further details on our quality control measures.

 

64

 

 

Long-Standing Relationship with Our Sizeable and Reputable Customers in the PRC

 

Our focus on providing quality services has enabled us to establish a strong customer base across different industries. During the nine months ended September 30, 2019, and 2018, we had 37 and 40 customers, respectively. We had 40 and 36 customers in fiscal years 2018 and 2017, respectively.

 

We have been able to maintain stable business relationships with our major customers, including reputable logistics companies in the PRC. Among our major customers, Best Inc. Group (NYSE: BSTI) is one of the largest companies in the logistics and supply chain management industry in the PRC. We have had a business relationship with this customer for nine years. Our ability to provide trucking services to Best Inc. Group has provided us substantial and stable revenue and has also shown our ability to successfully serve a sizeable logistics company. Our other major customers include Bu Feng Lotus Group, a leading retail operator in the PRC whose parent company is listed on the Main Board of the Hong Kong Stock Exchange (HKEX: 0121). Another example is ANE Group, a leading less-than-truckload third-party logistics operator in the PRC who we have been working with since 2010. We have also worked with Tiandi Huayu Group, a leading logistics company, since 2008. Working with sizeable customers has strengthened our company’s reputation and credibility in the transportation industry.

 

We believe that it is vital for us to continue to develop and maintain long-standing relationships with our existing customers. To this end, we strive to understand the evolving needs of our existing and potential customers on an on-going basis and flexibly adjust our trucking services to match their trucking needs. With respect to our existing customers, our senior management team proactively communicate with them to collect their feedbacks on our trucking services periodically through telephone calls and meetings. Some of our customers have developed their own KPIs to review and evaluate our trucking services and to ascertain if our trucking services can meet their standards. This has provided us with clear minimum guidelines to meet and surpass.

 

Experienced and Motivated Management Team

 

We believe that the extensive industry expertise and experience of our management team is essential to our success. Our senior management team has an average of approximately 10 years of experience with our company and 14 years of experience in the transportation industry in the PRC. We believe that the experience and knowledge of our management team would enable us to keep abreast of our competitiveness and market landscape from time to time, recognize the needs of our customers more readily and manage our operations, specifically, labor and vehicle deployment, more efficiently.

 

Sizable Fleet Consisting of Over 130 Tractors and 90 Trailers

 

As of the date of this prospectus, we have a fleet of 139 tractors and 90 trailers that provide our trucking services. We have also established business relationships with a number of external transportation companies located in the PRC for the provision of trucking services to our customers, which enable us to mobilize 200 tractors and 200 trailers at one time. We strategically prioritize deploying our own transportation vehicles for dedicated truckload services. These are contracts with customers that have more routine schedule and routes.

 

Having a sizeable fleet has given us the advantage of being able to provide stable, reliable, and flexible trucking services to our customers. Furthermore, our fleet is capable to effectively minimize service interruption or delay caused by vehicle malfunctions of our transportation vehicles by deploying our other available vehicles or subcontractors as substitutes within a short period of time; and enlarge our customer base by having the capability to perform different types of delivery orders.

 

Well-Functioned Network

 

With two regional terminals, one in Guangdong and one in Xinjiang, we have set up an established network of transport nodes throughout the years. Such a network has opened many routes for us to offer our customers more comprehensive services. We have become capable of covering a larger geographic region and provide more types of transportation services. We believe that our wide range of services offered has provided us with a significant competitive advantage over other local service providers in the PRC that only offer limited types of road trucking services with fixed routes, itinerary, and schedules.

 

To maximize revenue and to best serve our customers, we outsource transportation jobs when our own fleets are occupied. We have engaged a pool of four external transportation companies as our subcontractors. We continuously conduct a comprehensive assessment of our subcontractors in order to better control the quality of their services.

 

Fleet and Maintenance System Designed to Optimize Life Cycle Investment

 

Our fleet represents our largest capital investment, a visible representation of our brand for customers and drivers and a large portion of our controllable costs. We select, maintain and dispose of our fleet based on rigorous analysis of our investments and operating cost.

 

We generated cost and revenue synergies with increased operational efficiencies and cost control through the adoption of best practices and capabilities.

 

We are committed to safe and secure operations. We conduct a mandatory driver qualification process, including preparing drivers on safety procedures. We have teams focused on personnel safety, regulatory compliance and adoption of a comprehensive insurance.

 

65

 

 

OUR STRATEGIES

 

Our principal objectives are to sustain the continuous growth of our business and maintain our competitive advantages such that we can be positioned as a leading player in the transportation industry in the PRC. We plan to implement the following strategies to further develop our transportation business and reputation in the PRC.

 

Attract and retain top talent at all levels to ensure sustainable growth

 

Our people are our strongest assets, and we believe they are key to growing our customer base and driving our performance. Our goal is to attract, retain, and develop the best talent in the industry across all levels. We strive to foster a collaborative environment and seek individuals who are passionate about our business and fit within our culture. Our goal is to become a preferred carrier within the driver community. Our culture, which from our founding has focused on the well-being of our employees, has allowed us to attract and retain high quality drivers. We have also been focusing on maintaining sound safety records for our drivers by continuously training them so our drivers are always up to date with the newest routes and road upgrades, having live GPS tracking technology installed into our vehicles so we can monitor any irregularities in case of accidents, and adopting periodical vehicle checkup to ensure the vehicles are in top condition for driving. Prior to onboarding new drivers, they are given safety training and their driving skills are monitored. In addition, we offer our employees physical health checkups and schedule mandatory rest stops for each delivery trip they make. Our investment into the well-being of our drivers is not limited to just their physical health as we are strong believers in personal development. As such, our company provides training and other educational channels to equip our employees with additional skills outside of their job scope so they can remain competitive in the industry.

 

Expand and upgrade our fleet size in response to increase in market demands

 

We intend to expand our vehicle fleet size by acquiring additional tractors, trailers and trucks in order to cope with the anticipated increasing demand of our trucking services in the market. We believe that the enlarged vehicle fleet will permit us to cater for increased demand from our existing customers and from prospective customers. We are of the view that an expansion and upgrade in our fleet size is necessary to cater for increasing demands from existing customers and from prospective customers. According to the Frost & Sullivan July 2019 Report, with the growing economic and increasing social demand, the revenue of the road container transportation industry is expected to grow steadily and reach RMB 30.1 billion (approximately $4.38 billion) in 2021, at CAGR of 5.7%; during the period between 2016 and 2021.

 

Through our communications with our customers, which have indicated to us of higher volume of sales in the years ahead, we expect our trips to increase. We consider that the expansion in our fleet size will provide us with sufficient capacity to meet demand from our customers and enable us to further grow our market share.

 

The utilization rate of our tractors also increased from approximately 65.9% for year 2017 to approximately 83.1% for year 2018. We are of the view that an expansion of our vehicle fleet size will allow us to better cope with increasing demand of our trucking services from our customers. 

 

In addition to expanding our fleet size, we also plan to update our fleet in the following aspects:

 

1) Introducing liquefied natural gas-powered transportation vehicles into our fleet to achieve better emission standards

 

As an effort to promote green growth with reduced carbon emission and to improve the air quality in the PRC, the PRC government has set out in its 13th five-year-plan on natural gas development to encourage the application of natural gas in the transportation section as the preferred power source over fossil fuel. According to the five-year-plan, the PRC government will continue to formulate and promulgate policies which promote the development and use of natural gas-powered vehicles, including but not limited to transportation vehicles in the logistics industry. It is expected that the number of natural gas-powered vehicles and the number of gas refueling station will reach approximately 10 million and 12,000 by 2020, respectively. Natural gas vehicles, such as LNG-powered transportation vehicles have undergone major development in the recent years. They are suitable for long distance traveling and with high engine thermal efficiency, and in certain extent more efficient than trucks running in fossil fuel. Furthermore, natural gas vehicles have also benefitted from government support, such as production subsidies, funding for research and development, and also waiver of highway tolls for natural gas vehicles. It is expected that these policies and technological advances would lead to natural gas becoming a more available source of fuel, and at the same time further reduction of cost of purchase and operation of natural gas-powered vehicles.

 

After considering the above, we believe that the introduction of LNG-powered transportation vehicles into our fleet will not only enable us to reduce carbon emission which aligns with our own policy and national policy, it would also allow us to be benefitted from the government policies and achieve cost savings simultaneously, which would enhance our corporate image as well as having a beneficial effect on our business operation.

 

66

 

 

2) Upgrade and replace our existing transportation vehicles to minimize downtime and disruption of our trucking services

 

Of our current fleet of 139 tractors, 20 tractors are due for replacement as these tractors have an average remaining useful life of approximately six to eight years. On the other hand, of our current fleet of 90 trailers, 40 trailers are due for replacement as these trailers have an average remaining useful life of approximately four to eight years. It would be costly to maintain older transportation vehicles due to the insurance costs incurred, the higher maintenance and repairs costs and the higher chance of breaking down. The breakdown of older transportation vehicles will possibly result in downtime causing disruption to the provision of our trucking services.

 

Strengthen our information technology systems

 

We intend to acquire a customized integrated transportation tracking system that will allow us to not only track but also record the movement of the transportation vehicles via global positioning satellite data, allowing us to monitor job completion progress better. With this new system, customers will be able to track the movements of our transportation vehicles delivering their goods online through our system. Further, we also aim to have the system linked with our operation and finance systems so that when our staff places the order details to our system, the system can plan the route and delivery time and generate delivery list and invoice subsequently upon an encrypted authorized access of certain staff. Such customized system will increase the efficiency of our operations by reducing the manual input of the orders into our separate systems, minimize the risks of mistakes by integrating all systems instead of manually inputting data into each separate system and also reduce the accident rates by more promptly responding to any emergencies and accidents arisen during the course of delivery. We also intend to extend our integrated transportation tracking system to our subcontractors so that our customers can also monitor our subcontractors’ deliveries online through our system.

 

We also plan to acquire additional hardware such as workstations and servers to support the implementation of the customized integrated transportation tracking system. We believe that the strengthening of our information technology systems will allow us to improve our workflow efficiency, deliver a better service experience to our customers, and reduce our spending in insurance coverage due to lower accident rates.

 

Maintain stable relationships with our major customers and suppliers and expand our customer base

 

Maintaining good relationships with our existing customers and suppliers has always been important to us as it ensures a platform for cross-selling our services, improves our network and reputation within the transportation industry. Additionally, new customer acquisition has been successful via referrals by existing customers. Our major customers and suppliers have established relationships with us for up to nine years. This has been due to our dedication to customer satisfaction, constant improvement of business know-how, and our ability to maintain reliable, consistent, and professional partnerships. To maintain the relationships with our existing customers, we focus on giving them the best service possible, and growing our service offerings to match their evolving needs. We are constantly expanding our portfolio of services to ensure their needs are always met. Such efforts include upgrading our vehicle fleet, technology, and improving our operational flow to minimize downtime and increase efficiency. In addition, we assign dedicated relationship managers with our important customers so they can regularly check in, answer to their needs promptly and have a deeper understanding of their business operations.

 

To expand our customer base, we seek out new customers through marketing activities such as participating in trade fairs and functions. We plan to focus on attracting financially stable customers who ideally share traffic flows that complement our existing routes. By maintaining an even flow of freight traffic, we improve our utilization rate by minimizing movement of idle equipment. Additionally, we continuously form strategic alliances with local government agencies to attain strong regional market knowledge and influence.

 

Further expansion into Xinjiang and other new markets

 

The road transportation industry is highly competitive, and each geographic market is highly fragmented. We believe that it is advantageous to enter new emerging markets ahead of the competition. We believe this can be achieved as we already have the existing infrastructure, network, experience, and financial resources for us to move ahead of our competitors.

 

During the last two years, we have begun to execute our geographic expansion strategy by entering the Xinjiang region. Xinjiang is a market and geographic region that has experienced high demand but has been largely untapped by our competitors. Located in far-western China, Xinjiang houses a crucial segment of the Silk Road leading to Euroasia. According to the Frost & Sullivan July 2019 report, in the past 7 years, Xinjiang’s GDP has risen from approximately RMB 0.75 trillion ($0.11 trillion) in 2012 to RMB 0.96 trillion ($0.14 trillion) in 2016 and is expected to rise to RMB 1.38 trillion ($0.20 trillion) in 2021. These figures have attracted numerous Fortune 500 companies to set up bases there over the years. Since its value-added tax reform in May 2018, the business environment has become ideal for businesses to operate. Furthermore, Xinjiang’s road mileage has been increasing steadily from 165.9 thousand kilometers in 2012 to 182.1 thousand kilometers in 2016. Despite a slow start to trucking services as compared to the central and eastern regions of China, Xinjiang is expected to grow in this area under the One Belt, One Road initiative of the PRC government. The volume of road freight in Xinjiang has increased from 519 million tons in 2012 to 651.4 million tons in 2016, equating to a compound annual growth rate of 5.8%, largely a result of continuous road upgrading and economic development in the area. Estimates show that volume of road freight will eventually reach 987.9 million tons in 2021.

 

67

 

 

Since entering Xinjiang, we have successfully expanded our business by partnering with local logistics companies. One of these partnerships will allow us to offer intermodal trucking services. Intermodal trucking services transports containers on railroad flat cars, this method reduces timings for road transport over short distances thus reducing freight costs. Going forward, we will devote more resources and increase our presence in Xinjiang and other emerging regions by strengthening sales and marketing and forming more strategic alliances with government bodies and other businesses.

 

Acquire and Invest in Strategic Entities

 

In addition to growing our company organically, we plan to pursue selected acquisitions and form strategic alliances to take advantage of opportunities that complement our existing operations. These acquisitions and alliances will increase our service offerings, enhance our technology capabilities, increase our vehicle and personnel fleet size, access valuable information about new and existing markets, and increase our market coverage. All these benefits will help us remain competitive in this industry.

 

The transportation industry is currently highly fragmented. According to the Frost and Sullivan July 2019 report, the top 5 trucking service providers in the Guangdong region account for only 0.71% of the total trucking service market in Guangdong. This highlights the opportunities available for mergers and acquisitions. As mentioned, growing the size of our operations will allow us to gain significant competitive advantage. Given the size of our business and experience, we expect any future acquisitions to be integrated into our business more easily. As of the date of this prospectus, we are not a party to any agreement or understanding with respect any such acquisitions or alliances.

 

OUR TRUCKING SERVICES AND OPERATION

 

We transport and deliver a diverse range of products from our customers’ designated pick up locations to their designated destinations. Our trucking services are mainly Dedicated Truckload Service, in which we provide exclusive use of vehicles and equipment and offer customized solutions under long term contracts, generally with higher operating margins and a lower rate of driver turnover. With these contracts, a dedicated relationship manager is usually assigned to the account, and the customer is given priority to a predetermined set of drivers and vehicles. Under these contracts, our vehicle utilization rate is maximized with cargo carrying return trips. The regularity of these contracts has also allowed for better fleet management and cash flow planning.

 

Our trucking services operate out of two terminals, one in the Guangdong region, and one in the Xinjiang region. For the Guangdong terminal, services are mostly embarking from the Pearl River Delta Region to other provinces. For the Xinjiang terminal, our primary services are for the delivery of slack coal within Xinjiang province.

 

Our delivery network covers 29 out of the 34 provinces and autonomous regions in China, representing 83.5% of the nationwide network coverage as illustrated below.

 

 

68

 

 

OUR SERVICE ENGAGEMENT

 

We obtain our service engagements with our customers by way of (i) quotation; or (ii) a tendering process. The following table sets forth the revenue generated by quotations and by tenders during the past nine months and two fiscal years.

 

    Nine Months Ended
September 30, 2019
    FY2018     FY2017  
    Revenue     %     Revenue     %     Revenue     %  
By quotations   15,940,581       76.9     $ 22,885,990       82.8     $ 11,931,562       57.9  
By tenders   4,794,679       23.1     $ 4,760,799       17.2     $ 8,684,449       42.1  
Total   $ 20,735,260       100     $ 27,646,789       100     $ 20,616,011       100  

 

Quotations: We obtained a majority of our new contracts through quotations. In a quotations process, we give a fixed price quote for a delivery job that a potential or existing customer is looking to fulfill. The quotation will include payment terms and the contract’s length. If the price and terms for the delivery service is accepted, our team carries out the job.

 

Tenders: In a tender process, our customers invite us and our competitors to submit tender offers for a specific transportation job. These tender offers state the price and terms of the transportation service provided. The customer then evaluates all the tender documents submitted and chooses a company for that particular job.

 

Due to our reputation and track record in the transportation industry in the PRC, we have experienced success in both tendering and quotation.

 

OUR OPERATION FLOW

 

The below diagram shows the general workflow for our trucking services:

 

 

Depending on the needs of our customers, if the services are provided by our own transportation vehicles, our vehicles will arrive at the designated places in accordance with the regular delivery schedules pre-agreed by us and our customers. We will generally follow the process including (a) job planning and dispatch; (b) collection of goods at the designated pick-up points and location; (c) delivery to customer’s designated destinations; and (d) returned trailers to pick-up points or other designated destinations or locations.

 

Process (a): Job planning and dispatch

 

We assign particular drivers and transportation vehicles as our dedicated fleet for that customer to ensure that our drivers would perform the trucking services effectively and efficiently. In particular, we assign the same group of drivers to be responsible for a designated route with fixed schedules so they can arrive at the designated pick-up points according to the fixed schedule. Furthermore, when customers require transportation vehicles of a particular size, we will ascertain if our transportation vehicles meet such requirements. If not, we will arrange one of our subcontractors to provide the trucking services and also provide the delivery information to such subcontractor in advance.

 

When selecting the subcontractors for a specific assignment from our existing pool of subcontractors, we understand the transportation vehicles provided by different subcontractors are suitable for different customers. We arrange for the same subcontractor to provide trucking services to a particular customer to ensure that subcontractor’s transportation vehicles are in compliance with the customers’ requirements and standards.

 

69

 

 

Process (b): Collection of goods at designated pick-up points or location

 

Our transportation vehicles will arrive at the designated pick-up points or location pursuant to the pre-agreed delivery schedules, where our customers will be responsible to handle the packing and loading by its workers onto the container. In accordance with the pre-agreed delivery schedule, our driver will deliver the goods to our customer’s designated destinations, which are mainly logistics centers or warehouses.

 

A number of our vehicles with the “drop and hook” system will be able to pick up the loaded trailers immediately with minimal downtime so our drivers can make their return trip.

 

Process (c): Delivery to customer’s designated destinations

 

Our transportation vehicles will depart at the designated time. Depending on the distance traveled, it generally takes approximately two hours to two days to arrive at the destination. Similarly, our driver assigned to the project will communicate with our operation team the departure and arrival time. When our goods are delivered to our customer’s logistics centers or warehouses or other designated destinations, our customer will then proceed to unload all goods from the transportation vehicles. The delivery is considered to be completed when the goods are safely delivered to the designated destinations and when the delivery notes are signed by both parties. The unloading work is generally handled by the customer directly. To further facilitate our fleet planning, ensure timely delivery and expedite our billing process, our drivers will communicate with our operation team regarding departure time and arrival time which will be inputted into the monthly billing invoices for our and customer’s records. The monthly billing invoice will include the details of routes, the estimated and actual departure and arrival time and the name of the responsible drivers.

 

To effectuate the delivery of goods to our customers’ designated destinations in the most speedy and efficient manner, we keep track on the whereabouts of our transportation vehicles by GPS and also assign our transportation vehicles and drivers to the same designated route(s) so that each driver can become familiar with the route(s) assign to him/her and he/she will be responsible for the delivery of goods within certain route(s) only.

 

Process (d): Reloading and returned trailers to pick-up points or other designated destinations or locations

 

After our customer has successfully unloaded all the goods from the transportation vehicles, our vehicles will be reloaded with goods for the return trip. The unloading and reloading time will range from three hours to one day which may include the rest time of the drivers. Our transportation vehicles will then go back to the original pick-up points or to other designated locations. Throughout this whole process, we keep track of the movement of our transportation vehicles to ensure a smooth delivery to all delivery points. Our drivers will report to our operation team on their departure and arrival time. With respect to our trucking services which are performed by our subcontractors, we will rely on the same process as described above.

 

We issue monthly invoices to our customers on a monthly basis based on the amount of services we have performed. As such, the monthly fee varies depending on the actual quantity of services carried out. We are required to keep records on a daily basis and present a monthly report on our trucking services to our customers pursuant to the relevant master agreements.

 

If our customers raise any queries on the invoices issued by us regarding the number of deliveries made by our drivers, our customers will negotiate with us for settlement of the disputed amount. Our invoices will be subsequently issued to reflect the amount after such negotiation.

 

During the past two fiscal years, all revenue from our trucking services was derived from the PRC and denominated in Renminbi. Generally, our customers pay our invoices by bank transfers.

 

70

 

 

OUR FLEET

 

Our trucking services are mainly carried out by our self-owned vehicle fleet, which comprises of 139 tractors and 90 trailers. In line with the PRC government’s 13th five-year-plan on natural gas development, we have also invested in 61 of Liquefied Natural Gas (LNG) transportation vehicles which have enabled us to reduce carbon emissions which falls in line with both our goals and the nation’s policy. In addition, we install GPS systems in our vehicles that enables the operations team to track the location of the vehicle in real-time. This not only improves safety for our drivers but also provides for better record keeping and updating for our customers. In addition, we have invested in vehicles with the “drop and hook” Technology. The service allows our customers to preload the trailers with their goods so our drivers do not need to wait for the goods to be loaded upon arrival at their designated location. This decreases the driver’s downtime and increases vehicle turnaround speed. In addition, our vehicles are all insured against losses and damages for both our drivers and third parties, and regular maintenance programs have been put in place to ensure our vehicles are always in their best condition for our drivers.

 

Tractor

 

 

 

 

 

 

 

71

 

 

Trailer

 

 

 

 

 

 

 

72

 

 

CUSTOMERS

 

Our customers are mainly sizeable third-party logistics companies, freight forwarders, warehouse operators, and other supply chain service providers in the PRC.

 

Our relationship with major customers

 

During the nine months ended September 30, 2019, and 2018, we had 37 and 40 customers, and sales to our top five customers accounted for approximately 62.3% and 64.8%, respectively. Our five largest customers in aggregate accounted for approximately 71.4% and 63.9%, respectively, of our revenue for fiscal years 2017 and 2018. All of our five largest customers are unaffiliated third parties. Among our major customers, Best Inc. Group (NYSE: BSTI) is one of the largest companies operating the business of logistics and supply chain management in the PRC that has maintained the business relationship with us for nine years. Our other major customers include Bu Feng Lotus Group, a leading retail operator in the PRC whose parent company is listed on the Main Board of the Hong Kong Stock Exchange (HKEX: 0121), ANE Group, a leading less-than-truckload third-party logistics operator in the PRC who we have been working with since 2010 and Tiandi Huayu Group, a leading logistics company called who we have been working with since 2008. Working with sizeable customers has strengthened our company’s reputation and credibility in the transportation industry.

 

Despite our concentration on a limited number of major customers, we believe that a number of factors will help mitigate any material adverse impact of such concentration on our business operations and financial condition. Our services model and facilities are not specifically designed to cater solely for one particular customer. In contrast, they are flexible and adaptable in serving different customers’ needs. In the event that our current business relationship with our five largest customers or any one of them deteriorates, our services can be readily transferred to serve other potential new customers and satisfy their needs. The preparation works required for serving new customers usually include fine-tuning quality procedures to suit individual customer requirements, coordinating with new customers, re-designing the delivery route, allocating warehousing space and updating computer systems to facilitate the process, which in our view will not incur any significant cost or require long transition periods. In fact, our major customers continued to evolve in the past three years.

 

We believe that our continuous effort in providing high quality trucking services to our customers is the key to enlarge our market share in the transportation industry, strengthen our customer base as well as enhance our marketing effectiveness. Our operation team generally handles inquiries, complaints and feedbacks from our customers and will maintain a regular contact with our external transportation subcontractors with the goal of resolving issues such as late deliveries or complaints from customers in a timely fashion.

 

We recognize that having a high level of customer services is crucial in maintaining our reputation in the market and cultivating customer loyalty. Thus, we follow up with the orders and keep track of the level of satisfaction of our customers. We also gather customers’ feedbacks and review the flow of our trucking services in order to increase our customers’ satisfaction and improve our service quality. For further information regarding our quality control, please refer to “Quality Assurance.”

 

Customer acquisition

 

Our new customers are mainly referrals from our existing customers which in our view, is a reflection of our existing customers’ satisfaction with our services. Our primary strategy for new customer acquisition is to further develop our existing terminals in Guangdong and Xinjiang by expanding the range of transportation solutions offered from these terminals. We also plan to expand into new geographic regions through the opening of new terminals in new markets.

 

In addition, we seek out new customers through marketing activities such as participating in trade fairs and functions. We focus on attracting financially stable customers who ideally share traffic flows that complement our existing routes. By maintaining an even flow of freight traffic, we improve our utilization rate by minimizing movement of empty idle equipment. Additionally, we continuously form strategic alliances with local government agencies to attain stronger regional market knowledge and influence.

 

73

 

 

General terms of the master agreements with customers

We entered into master agreements with our customers. Among these agreements, certain contracts are short term ones with terms ranging from less than one year to two years while other contracts are long term agreements with indefinite terms. As part of our business strategy and commercial decision, we focus on having sizable customers with larger scales of operations as opposed to smaller customers as it provides substantial benefits including (i) higher and more steady income flows; (ii) better utilization rates of our vehicles as we are able to plan and schedule routes in advance; (iii) economies of scale as costs decrease; and (iv) management of our customer relationships more personally as we can focus on a smaller pool of customers.

Although the terms of master agreements may vary, the material terms that are generally contained in our agreements with major customers are set out below:

Scope of service

Each master agreement specifies the basic type of services to be provided, which is the provision of trucking services.

 

Condition of the Transportation Vehicles

The transportation vehicles provided are generally required to be in good condition. The types and required condition of the transportation vehicles to be provided may also be specified in certain master agreements.

 

Service fees

In relation to our trucking services, we generally charge our customers at various fixed rates based on the scope of services provided. Our charging rate is mainly based on (i) the estimated amount of services required; or (ii) the distance between the designated pick-up points and delivery destinations; or (iii) the type of transportation vehicles required, particularly their gross vehicle weight.

 

Certain customer contracts also allow us to adjust our service fees in view of fluctuations in fuel prices from time to time.

  

Liability

Generally, the master agreements set out the respective rights and obligations of our Group and our customers, and the Key Performance Indicators (KPIs) of respective customers.

 

We will be liable for any damages to the goods, equipment and premises of the customers caused by us during the provision of our trucking services. We are also liable for any loss or damages to the goods that are in our custody and for any non-compliance of relevant laws and regulations in the PRC.

 

Renewal

Certain master agreements have an automatic renewal clause while other agreements can be renewed upon written notice rendered within a specific period.

 

Termination

Generally, there are early termination clauses in the master agreements, which entitle our customers to immediately terminate the master agreements, including:

     
  our persistent failure to reach the agreed KPIs over a certain period, usually within two to four months; and/or
  any breach of the master agreements by us.
     
Insurance

Customers who entered into master agreements with us generally require us to maintain adequate insurance coverage with respect to, among other things, employee compensation, third party liability and loss or damage to goods in the course of our provision of trucking services.

 

We shall be responsible for any loss or damages to the goods entrusted to us or any loss or damage or personal injury happened in the course of our provision of relevant trucking services.

   
Subcontracting

In most master agreements, subcontracting of our trucking services to any third party is not expressly prohibited.

 

KPIs

Most of our customers assess the quality of our trucking services using their own KPIs. If our service quality falls below a predetermined benchmark of the KPIs set by each individual customer, our customers are entitled to request us to improve the quality of our trucking services. Failure to fulfil the KPIs may result in the termination of a master agreement.

 

With respect to our trucking services, the KPIs are measured mainly by reference to our ability to complete the deliveries, timeliness of delivery and condition of the goods which have been delivered by us.

  

Minimum commitments

In some master agreements, we undertake to provide a minimum number of transportation vehicles or trips of delivery services per month. Any failure to meet the minimum commitments will result in the monetary compensation from us or a breach of contract on our part.

 

74

 

 

Credit and provision policy

 

We generally grant our customers a credit period ranging from 10 to 120 days from the invoice date. Although this is memorialized in our services agreement with each individual customer, our customers may settle our invoices beyond the credit period. The length of credit period granted varies on a case-by-case basis depending on the amount of services, the length of the relationship with these customers and the payment method. We update individual customers’ payment records from time to time and, if necessary, will revise the credit terms of individual customers accordingly.

 

MATERIAL CONTRACTS

 

Below is a summary of all material contracts to which we are a party dated within the preceding two years from the date hereof other than agreements entered into in our ordinary course of business:

 

Agreements with Postal Savings Bank of China

 

On October 27, 2018, MingZhu entered into a small business credit agreement with Postal Savings Bank of China (“Postal Bank”), pursuant to which, Postal Bank agreed to extend credit of up to RMB 9 million (approximately $1.3 million) to MingZhu for a credit period from October 29, 2018 to October 28, 2023 and a drawdown period from October 29, 2018 to October 28, 2021. The types of credit available under the credit agreement, include, but not limited to, working capital loans, fix assets loans, trade financing and letters of guarantees. Pursuant to the credit agreement, MingZhu will enter into a supplemental agreement with Postal Bank prior to the applicable drawdown that will set forth the terms of each borrowing thereunder, including term of loan, principal, interest rate and borrowing expenses. Postal Bank has the sole discretion to approve each drawdown. The credit is secured by a pledge of two real properties owned by Jinlong Yang, our principal shareholder, founder and Chairman of our board of directors, and Jinhua Yang, sister of Jinlong Yang and guaranteed by Jinlong Yang and Jinhua Yang, pursuant to the terms of separate pledge and guarantee agreements with Postal Bank.

 

Under the credit agreement, MingZhu has the obligation to notify Postal Bank of any circumstances that may affect the financial conditions or performance of obligations under the credit agreement and related agreements by MingZhu or its guarantors, which includes, but not limited to, merger, reorganization, planned public offering, transfer of material assets or equity and involvement of a material lawsuit.

 

Upon the occurrence of an event of default, Postal Bank has the right to adjust the credit available under the credit agreement, suspend the use of the remaining credit by MingZhu and declare all outstanding balance to become immediately due and payable. Events of default under the credit agreement include, among other matters, material adverse changes in MingZhu’s business or financial conditions, MingZhu’s involvement of a major lawsuit, MingZhu’s material breach of loan agreements with other creditors, MingZhu’s failure to perform its contractual obligations with Postal Bank, provision of false materials or omission of important business or financial facts of MingZhu, change of control, illegal conduct or involvement of litigation by MingZhu’s controlling shareholder or executive officers, and a breach of guarantee contract by MingZhu’s guarantor.

 

On October 27, 2018, MingZhu entered into a small business working capital loan agreement and a promissory note with Postal Bank for the drawdown of RMB 9 million (approximately $1.3 million) for a term of up to 24 months at an interest rate of 5.7% with a maturity date of November 12, 2020 for the purpose of freight payments. Pursuant to the loan agreement, MingZhu agreed, among other aspects, not to provide guarantees, prioritize repayment of other loans or pay dividends to its shareholders within the term of the loan without Postal Bank’s consent. In the event of default, MingZhu is required to pay 1% of total contract price of the loan agreement as liquidated damage.

 

Agreements with Zhujiang Rural Bank

 

On April 29, 2019, MingZhu entered into a comprehensive credit agreement with Zhujiang Rural Bank (“Zhujiang Bank”), pursuant to which, Zhujiang Bank agreed to extend credit of up to RMB 3 million (approximately $0.4 million) to MingZhu for a credit period from May 6, 2019 to May 5, 2020. The types of credit available under the credit agreement, include, but not limited to, general loans, bill acceptance, letters of credit, delivery guarantee, package loans, import and export bills, import payments and letter of guarantees. Pursuant to the credit agreement, MingZhu will enter into a supplemental loan agreement and a promissory note with Zhujiang Bank prior to each applicable drawdown that will set forth the terms of each borrowing thereunder. MingZhu is required to submit a written drawdown application to Zhujiang Bank five (5) business days in advance.

 

Under the credit agreement, MingZhu has the obligation to notify Zhujiang Bank thirty (30) days in advance and pay back any outstanding balance under the loan or provide additional guarantee upon the occurrence of certain events involving MingZhu, which includes, but not limited to, merger, debt or equity reorganization, dissolution and bankruptcy. MingZhu also has the obligation to notify Zhujiang Bank of any related party transaction that concerns 10% or more of MingZhu’s net assets.

 

Zhujiang Bank has the right to suspend the use of the remaining credit by MingZhu and declare all outstanding balance to become immediately due and payable, upon the occurrence of certain events, including, among other matters, provision of false materials or omissions of important business or financial facts of MingZhu, change of use of loan proceeds for purposes that are inconsistent with the credit agreement or for illegal purposes, reorganization or restructuring without consent from Zhujiang Bank, any breach of credit agreement by MingZhu and any breach of guarantee agreement by MingZhu’s guarantor.

 

On April 29 and May 6, 2019, MingZhu entered into an enterprise loan agreement and a promissory note, respectively, with Zhujiang Bank for the drawdown of RMB 3 million (approximately $0.4 million) for a term of 12 months at a monthly interest rate of 5.4375‰ with a maturity date of May 5, 2020 for its working capital purposes. Pursuant to the loan agreement, the loan is secured by pledge from Jinlong Yang of RMB 1 million (approximately US$0.1 million) cash deposited in Zhujiang Bank, our principal shareholder, founder and chairman of our board of directors, and by guarantee from Jinlong Yang and Guizhi Yang, Jinlong Yang’s sister, both of who entered into separate pledge and guarantee agreements with Zhujiang Bank.

 

75

 

  

Agreements with Industrial Bank

 

On April 16, 2019, MingZhu entered into a working capital loan agreement with Industrial Bank (“Industrial Bank”) for a term loan in the amount of RMB2 million (approximately $0.3 million) for one (1) year at an interest rate of 1.345% over LPR (one year) with a maturity date of April 16, 2020 for working capital purposes. The loan shall be repaid with a monthly installment of RMB 100,000 (approximately $14,544) on the 21th day of each month starting from the third month and the remaining balance is due upon maturity. MingZhu may submit an extension request for the repayment of loan sixty (60) business days in advance and the term of the loan may be extended upon Industrial Bank’s approval. Prepayment is allowed without penalty, provided that MingZhu notifies Industrial Bank fifteen (15) business days in advance. The loan is guaranteed by Jinlong Yang and MingZhu Logistics pursuant to the terms and conditions of separate guarantee agreements.

 

Pursuant to the loan agreement, MingZhu shall notify Industrial Bank thirty (30) business days in advance of any material corporate actions, including, but not limited to, mergers, equity transfers, reorganization or any event that results in a change of 30% or more of MingZhu’s equity ownership. In addition, MingZhu is required to notify Industrial Bank seven (7) business days in advance of any material operational or financial crisis of MingZhu’s controlling shareholder or its related entities or a change of 30% or more of MingZhu Logistics’ equity. MingZhu also has the obligation to notify Industrial Bank of any related party transaction that concerns 10% or more of MingZhu’s net assets. In addition, if proceeds from the loan is used for purposes other than the purposes set forth under the loan agreement or MingZhu fails to make timely payments under the loan agreement without negotiating an extension with Industrial Bank, the bank has the right to increase the interest rate by 50%.

 

Industrial Bank has the right to declare all outstanding balance to become immediately due and payable, upon the occurrence of certain events, including, among other, mergers, reorganization, equity transfers that may affect the repayment of the loan or MingZhu’s failure to make timely repayments.

 

Agreements with Guangdong Nanyue Bank

 

On September 12, 2019, MingZhu entered into a maximum credit agreement with Guangdong Nanyue Bank (“Nanyue Bank”), pursuant to which, Nanyue Bank agreed to extend credit of up to RMB 10 million (approximately $1.4 million) to MingZhu for a credit period from September 12, 2019 to September 12, 2020. The type of credit available under the credit agreement is working capital loans. Pursuant to the credit agreement, MingZhu will enter into a supplemental agreement with Nanyue Bank prior to the applicable drawdown that will set forth the terms of each borrowing thereunder, including the term of loan, principal and interest rate. Nanyue Bank has the sole discretion to approve each drawdown. The credit is secured by a pledge of real properties owned by Jinlong Yang, our principal shareholder, founder and Chairman of our board of directors, Hongxin Sun (brother-in-law of Jinlong Yang) and Guizhi Yang (sister of Jinlong Yang). The loan is guaranteed by Jinlong Yang, MingZhu, Hongxin Sun and Guizhi Yang, pursuant to the terms of separate pledge and guarantee agreements with Nanyue Bank.

 

Under the credit agreement, MingZhu has the obligation to notify Nanyue Bank of any circumstances that may affect the financial conditions or performance of obligations under the credit agreement and related agreements by MingZhu or its guarantors, which includes, but not limited to, merger, reorganization, planned public offering, transfer of material assets or equity and involvement of a material lawsuit.

 

Upon the occurrence of an event of default, Nanyue Bank has the right to adjust the credit available under the credit agreement, suspend the use of the remaining credit by MingZhu and declare all outstanding balance to become immediately due and payable. Events of default under the credit agreement include, among other matters, material adverse changes in MingZhu’s business or financial conditions, MingZhu’s involvement of a major lawsuit, MingZhu’s material breach of loan agreements with other creditors, MingZhu’s failure to perform its contractual obligations with Nanyue Bank, provision of false materials or omission of important business or financial facts by MingZhu, change of control, illegal conduct or involvement of litigation by MingZhu’s controlling shareholder or executive officers, and a breach of guarantee contract by MingZhu’s guarantor.

 

On September 29, 2019, MingZhu entered into a short-term working capital loan agreement with Nanyue Bank for a drawdown of RMB 5 million (approximately $0.7 million) for a term of up to 12 months at an interest rate of 8.5% with a maturity date of September 29, 2020 for working capital purposes. Pursuant to the loan agreement, MingZhu agreed, among other aspects, not to provide guarantees, prioritize repayment of other loans or pay dividends to its shareholders within the term of the loan without Nanyue Bank’s consent. Upon occurrence of an event of default, Nanyue Bank will have the right, from the date of overdue, to charge additional 50% as the penalty interest rate at the interest rate stipulated in the contract.

 

On November 14, 2019, MingZhu entered into a short-term working capital loan agreement with Nanyue Bank for a drawdown of RMB 2 million (approximately $0.28 million) for a term of up to 12 months at an interest rate of 8.5% with a maturity date of November 14, 2020 for the purpose of fuel payments. Pursuant to the loan agreement, MingZhu agreed, among other aspects, not to provide guarantees, prioritize repayment of other loans or pay dividends to its shareholders within the term of the loan without Nanyue Bank’s consent. Upon occurrence of an event of default, Nanyue Bank will have the right, from the date of overdue, to charge additional 50% as the penalty interest rate at the interest rate stipulated in the contract.

 

On November 27, 2019, MingZhu entered into a short-term working capital loan agreement with Nanyue Bank for a drawdown of RMB 3 million (approximately $0.42 million) for a term of up to 12 months at an interest rate of 8.5% with a maturity date of November 27, 2020 for the purpose of fuel payments. Pursuant to the loan agreement, MingZhu agreed, among other aspects, not to provide guarantees, prioritize repayment of other loans or pay dividends to its shareholders within the term of the loan without Nanyue Bank’s consent. Upon occurrence of an event of default, Nanyue Bank will have the right, from the date of overdue, to charge additional 50% as the penalty interest rate at the interest rate stipulated in the contract.

 

SALES AND MARKETING

 

We proactively source new customers by participating in industry events such as the China (Shenzhen) International Logistics and Transportation Fair. We believe that this allows the public to know more about our business, services and strengths through our direct communication, and also gives us an opportunity to understand our competitors. We continue to develop strategic partnerships with provincial and local government agencies to drive sales by leveraging their strengths and resources in targeted customer base, strong regional market influence and extensive government and industry resources.

 

We also rely on our established relationships with our existing customers, customer referrals and our reputation in the transportation industry to expand our business. Aside from obtaining new customers through referrals, we also seek out new customers by marketing our trucking services to them and by attending and participating in trade fairs. Our management team will regularly attend functions to build a stronger network with existing customers and so that potential customers may be referred to us. Our sales and marketing team regularly contact customers to maintain good business relationship and expand our network by soliciting new customers through referrals from existing customers.

 

76

 

 

SUBCONTRACTING ARRANGEMENT

 

During the past two fiscal years, we engaged a pool of four external transportation companies as our subcontractors. We continuously conduct a comprehensive assessment of our subcontractors in order to better control the quality of their services. We place orders to these subcontractors on a back-to-back basis, which means that, once we have entered into any service agreements with our customers, we will allocate the work to the subcontractors and pass along the relevant information to them. Such back-to-back arrangements can ensure the quality and quantity of the trucking services rendered by our subcontractors are in compliance with our customers’ requirements. Our subcontractors will then arrange for an appropriate number of vehicles for performing the agreed trucking services. Apart from the above, we also implement a series of measures to ensure that the delivery services provided by our subcontractors can fulfil the requirements of our customers. See “Business – Quality Assurance.”

 

We usually enter into master agreements with these subcontractors setting out the principal terms of the subcontracting arrangement. The terms and conditions in the master agreement entered into between us and our customers will be incorporated into the subcontracting master agreements.

 

The master agreements we provide our subcontractors are on a back-to-back basis, therefore we expect the terms and obligations we have with our clients to be shared and equally kept. The routes that have been scheduled will be written in the master agreements for clarity and allows for better planning by our subcontractors. In addition, we expect our subcontractors to comply with the basic standards that we have already set, such as possessing valid transportation licenses required to operate certain transportation vehicles. All these steps ensure that our subcontractors can provide our customers an equally good quality service experience.

 

In general, the subcontractors charge us based on the type of transportation vehicles required by our customers, the routes that will be taken, and the value and amount of the goods to be delivered.

 

The key terms of the master agreements for subcontractors are set out below:

 

Terms of duration

The agreements generally contain standard fixed durations ranging from one to two years.

 

Obligations

The agreements will include the agreed provision of the respective transportation and delivery services.

 

Price

The price is determined by us and each individual subcontractor and thus, it varies.

 

Credit term

Generally ranging from five to 60 days from the invoice date

 

Termination

The agreement can be terminated by either party by written notice in advance for certain periods set forth under the applicable agreement.

 

Insurance

In certain master agreements, we require our subcontractors to maintain insurance covering goods, transportation vehicles, traffic accident, medical and other insurances for their employees.

  

As of the date of this prospectus, we have not experienced any material dispute with our subcontractors. We do not foresee any material difficulties in sourcing substitute subcontractors if we terminate our relationship with any of the existing subcontractors.

  

SUPPLIERS

 

The supplies we need for our trucking service business mainly include tires, vehicles, fuel oil and gas. Our major suppliers for the past two years include China Petrochemical Marketing Co. Ltd. Huizhou Branch, Shenzhen Xinguoji Automobile Co., Ltd., Guangdong Hechengzhida Automobile Management Services Co., Ltd. and China National Petroleum Corporation Dongguan Branch.

 

77

 

 

QUALITY ASSURANCE

 

MingZhu has obtained an ISO9001:2015 Certification. The ISO9001 Certification is an internationally recognized standard for quality management. MingZhu has also obtained a three stars certification with respect to our trucking services of non-dangerous chemical goods from Shenzhen Institute of Standards and Technology.

 

We believe that our ability to maintain the quality of our trucking services is critical to our growth. Our quality assurance measures include the following:

 

Pre-trip commencement vehicle inspection

 

Before our drivers commence their first trip each day, they are required to perform a routine check on their vehicle. We provide our drivers with a vehicle checklist which they are required to complete before using the vehicle. The purpose of the checklist is to ensure that all vehicles in our fleet are in a roadworthy condition such that our drivers can operate in a safe working environment.

 

Regular vehicle inspection

 

To ensure vehicular safety, we have implemented a regular vehicle maintenance regime for our tractors and trailers. All tractors and trailers in our fleet are subject to regular inspection as regulated by a third-party vehicle inspection company with the view that vehicles that are not roadworthy can be a potential hazard to other road users and that regular inspections help to minimize vehicular breakdowns and road accidents. We have spent approximately RMB 1.9 million (approximately $278,527) and RMB 4.9 million (approximately $749,809) on vehicle repair and maintenance, respectively, during the nine months ended September 30, 2019 and 2018. We have spent approximately RMB 6.4 million (approximately $974,750) and RMB 5.5 million (approximately $812,353) on vehicle repair and maintenance, respectively, during fiscal years 2017 and 2018.

 

GPS installations

 

We have implemented a GPS system on our vehicles that enables us to accurately track the delivery departure and arrival time and detect any malpractice in the course of the delivery.

 

Monthly safety meetings

 

Our management and other staff hold regular monthly safety meetings with drivers to discuss topics relating to safe driving. During the meetings, all vehicle inspections, equipment conditions, driver feedback, weather conditions, and road conditions reports are presented and discussed among the operators and upper management.

 

Safety courses for drivers

 

As our drivers are responsible for operating vehicles, we require our drivers to attend relevant safety courses. We conduct in-house safety courses, including refresher courses to ensure that the drivers are up to date with the latest safety regulations. Our customers and suppliers may also conduct their own safety courses for our drivers who operate within their premises.

 

Trainings provided by vehicle manufacturers

 

Apart from attending our internal safety courses, our employees also attend training courses provided by the manufacturers of vehicles. Such training help drivers better understand the use of specific vehicles.

 

Customer feedbacks and process improvement

 

Our sales and marketing team and customer service team work closely with our customers throughout each job engagement. We constantly seek feedbacks from our customers on possible areas of improvement and often make changes to our internal processes in order to deliver higher quality services to our customers.

 

We believe that the foregoing measures have contributed to our quality service and low accident rate. During the nine months ended September 30, 2019 and 2018, we encountered 38 and 28 accidents, representing approximate 0.1% and 0.1%, respectively, of total trips in such year. During 2018 and 2017, we encountered 40 and 33 accidents, representing approximate 0.1% and 0.1%, respectively, of total trips in such year.

 

We have received a number of recognitions for our quality assurance programs. MingZhu received a certificate of First Grade Transportation Enterprise with respect to the Safety Production Standardization Level issued by the Ministry of Transport of the PRC in 2016. MingZhu was also awarded with 3 Stars Award with respect to the General Road Transportation (Excluding Dangerous Chemicals) based on the Third Party Logistics Services Evaluation Norms by Shenzhen Institute of Standards and Technology in 2016. We believe that these certificates are testaments to the effectiveness of our quality control measures and our dedications to the safety of our employees and the properties of our customers.

 

78

 

 

SEASONALITY

 

In general, demand for our trucking services is higher in June, November and December of each year due to higher demands for delivery services of consumer services products driven by the sales campaign organized by various online shopping platforms during these periods. With respect to services we provide to logistics companies, the routes and schedules generally remain unchanged throughout the applicable contract period. In periods of peak demand, we will extend our hours of trucking services per day with our existing drivers and subcontractors if necessary. As seasonal fluctuations in demand do not have material effect on our total revenue, we believe seasonality has minimal effect to our business’ overall performance.

 

CUSTOMER SERVICES

 

We believe that our continuous effort in providing high-quality trucking services to our customers is key to increasing our market share in the transportation industry. We have in place an operations team that manages general inquiries, complaints, and feedback from our customers. They are also responsible for working with our subcontractors to resolve and complaints or late delivery issues. The most efficient and main channel for communication used between our operations team and our customers and subcontractors is telephone call or messaging. This has allowed us to resolve issues quickly.

 

We recognize that having a high level of customer satisfaction is crucial in helping us maintain a strong reputation in the market and cultivate customer loyalty. As such, we monitor our delivery and customer feedback closely with the goal of increasing service quality and customer satisfaction. For further information regarding our quality control, please refer to “Quality assurance” in this section.

 

ENVIRONMENTAL PROTECTION

 

Pursuant to the PRC Prevention of Environmental Noise Pollution Law, noise arising from the industrial and manufacturing activities should not exceed the prescribed emission level. We believe that we are in compliance with such requirement.

 

Due to the nature of our business, our operational activities do not directly generate industrial pollutants. As such, we have not directly incurred any cost of compliance with applicable PRC environmental protection rules and regulations as of the date of this prospectus and do not expect that we will directly incur significant costs for such compliance in the future.

 

Pursuant to the Limits and Measurement Methods of Fuel Consumption of Operating Vehicles and Limits and Measurement Methods of Fuel Consumption of Operating Truck, fuel consumption of our vehicles is subject to certain limitations prescribed thereunder. We have an internal policy in place to ensure all vehicles that we purchase are in compliance with these measures. We also engaged in fuel consumption testing project with truck manufacturer to test the fuel consumption of certain vehicles. In addition, we have invested largely in LNG vehicles to become more environmentally friendly and to adhere to international standards.

 

MingZhu, has obtained ISO14001:2015 Certification, which is an internationally recognized standard for identifying, managing, monitoring and controlling their environmental issues. As of the date of this prospectus, we had not come across any material non-compliance issues in respect of any applicable laws and regulations on environmental protection. We have not been subject to any administrative sanctions or penalties that have a material and adverse effect on our financial condition or business operation.

 

COMPETITION

 

According to the Frost & Sullivan July 2019 report, the transportation industry in the PRC is highly fragmented with fierce competition from thousands of small players. Entry barriers have dampened the rise of new entrants to a certain extent. Entry barriers include having an established transportation network means having multiple transport lines that can support the transport needs of customers, heavy initial and subsequent capital investments for acquiring manpower, equipment, and for business expansion, and long term customer relationships.

 

Our primary competitors are Shenzhen Chiwan Oriental Logistics Co., Ltd., Tianjin Shiqiao International Logistics Co., Ltd. and Guangzhou Zhihong Logistics Co., Ltd., each a private company operating in the PRC. Certain competitors have a cost structure that is characterized by lower capital expenditures or labor costs than ours, and other competitors may have greater scale, flexibility and more resources than we do. Our ability to compete with these players primarily depend on quality of our services (including reliability, responsiveness, expertise and convenience) and price.

 

INTELLECTUAL PROPERTY

 

We currently own 21 PRC patents related to technologies used in connection with trucking services, including 20 utility patents and one invention patent. We also own one PRC trademark and 16 PRC copyright registrations.

 

79

 

 

EMPLOYEES

 

We had 213 full-time  employees as of September 30, 2019. The following table sets forth the number of our full-time employees categorized by function as of September 30, 2019:

 

Function   Number of
Employees
Management   6
Administrative and Accounting   14
Safety and Technique   3
Transportation and Delivery Operations   5
Drivers   185
     
Total   213

 

Trucking services requires a large labor workforce. As of the date of this prospectus, we have employed a total of 185 drivers, accounting for roughly 87% of our total workforce. Our turnover rates are low compared to industry standards. Our core management team have remained onboard for over 10 years. Our team has shown a proven track record of growth and cost control.

 

We invest significant resources in the recruitment of employees in support of our rapidly growing business operations. We have established comprehensive training programs, including orientation programs and on-the-job-training, to enhance performance and service quality. We also regularly conduct employee trainings in the areas of risk management, managerial skills, company culture and communications.

 

We have established procedures to provide our staff with a safe and healthy working environment by setting out a series of work safety rules in the staff manual in case of emergencies including fire, electric shock and typhoons. We also provide our employees with occupational safety education and trainings to enhance their awareness of safety issues. In addition, we provide regular medical checks to our employees to ensure the health conditions of our drivers are fit for driving. In addition, we have invested in the use of LNG powered vehicles which are safer to drive, since the ignition point of LNG is higher than that of other fuels, LNG’s can volatilize and diffuse more quickly in case of any leakages. We are subject to the requirements under the local laws, national standards and industrial standards in the PRC to maintain safe working conditions and to protect the occupational health of employees. See “Regulations – Regulations Relating to Work Safety.”

 

As required by regulations in China, we participate in various government statutory social security plans, including a pension contribution plan, a medical insurance plan, an unemployment insurance plan, a work-related injury insurance plan, a maternity insurance plan and a housing provident fund. We are required under PRC law to contribute to social security 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. For risk in relation to our contribution for employee social security plans, see “Risk Factors—Risks Related to Doing Business in China—Any failure to comply with relevant regulations relating to social insurance and housing provident fund may subject us to penalty and materially and adversely affect our business, financial condition, and results of operations.”

 

FACILITIES

 

We believe our facilities are sufficient for our current needs and that, should it be needed, suitable additional space will be available on commercially reasonable terms to accommodate any such expansion of our operations.

 

Location of property   Approximate
gross floor area
  Term of Lease   Facility Usage 
    (sq. meters)        
Yantian District #5, Yantian Port, Yantian District, Shenzhen City, Guangdong Province, PRC   10,494   One year (November 1, 2019 to October 31, 2020)   Parking Lot
South Side of Yantian District #5, Yantian Port, Yantian District, Shenzhen City, Guangdong Province, PRC   900   One year (November 1, 2019 to October 31, 2020)   Parking Lot
27th floor, Yantian Modern Industry Service Center, No.3018, Shayan Road, Yantian District, Shenzhen City, Guangdong Province, PRC   2,095.61   Five years (November 21, 2018 to November 20, 2023)   Office
Room 2307 and Room 2308, Unit A, Building 1, Haitongju, Zhongqing 1st road, Yantian District, Shenzhen City, Guangdong Province, PRC   99.04   Three years (September 1, 2018 to August 31, 2021)   Staff Accommodation

 

80

 

 

LICENCES AND PERMITS

 

We have obtained all necessary licenses, approvals and permits that are material to our business, all of which are valid and current save as of the date of this prospectus. The details of the permits we have obtained by are as follows:

 

Approval   Recipient   Issuing body   Date of grant   Date of expiry
Road Freight Forwarding Operation Permit   MingZhu   Shenzhen Transportation Committee   November 7, 2018   November 6, 2022
Road Freight Forwarding Operation Permit   MingZhu Pengcheng   Shenzhen Transportation Committee   September 30, 2018   September 29, 2022

 

INSURANCE AND SOCIAL SECURITY MATTERS

 

We maintain automobile insurance policies against loss or damage to our vehicles, drivers and third parties arising in the course of the delivery and policies against damages and losses of cargo during the provision of trucking services. We currently do not have any business liability or disruption insurance. We also participate in various government statutory social security plans, including a pension contribution plan, a medical insurance plan, an unemployment insurance plan, a work-related injury insurance plan, a maternity insurance plan and a housing provident fund.

 

Our insurance coverage complies with the requirements of our existing customers. We believe that such coverage is in line with industry norms in the PRC and is adequate and sufficient for our current operations.

 

RECOGNITIONS AND AWARDS

 

We have been accredited by the China Federation of Logistics & Purchasing as a 3A-grade trucking services company for the period of August 2014 to August 2020. A 3A-grade trucking services provider must meet the criteria of being able to cover routes across provinces and have (1 ) 60 million to 300 million freight revenue per year, (2) been operating for at least two years to three years, (3) have 40 million to 200 million total assets (no higher than 70% of debt ratio), 4) own 150 to 400 transport vehicles (or total weight of 750 to 2000 tones), (5) have 15 to 30 operating outlets, and (6) operate an effective institution with operating systems for management, finance, statistics, and have technical departments in place.

 

In addition to our 3A-grade accreditation, we have also been recognized as a Green Card Enterprise according to the qualitative assessments of Four Rates system set by the Shenzhen Bureau of Transportation in 2007 and 2008. Furthermore, we have received the following awards and recognitions that are notable within the industry:

 

Year of Award   Recipient   Award   Awarding organization or authority
2019   MingZhu   2018 Shenzhen National Road Traffic Safety Advanced Unit   Shenzhen Public Security Bureau Traffic Police Station
2017   MingZhu   Guangdong Province Road General Freight Transport Enterprise Integrity Evaluation AAA (Excellent)   Guangdong Provincial Department of Transportation
2017   MingZhu   Yantian District Advanced Enterprises with Harmonious Labor Relations   Shenzhen Yantian District Labor Relations Coordination Committee
2016   MingZhu   Advanced Unit of Transportation Safety Production   Shenzhen Port and Freight Transport Administration
2014   MingZhu   Outstanding Contribution Award   Yantian Chamber of Logistics
2010   MingZhu   Excellent Enterprise   Shenzhen Municipal Transportation Bureau and Shenzhen Container Trailer Transport Association
2009   MingZhu   Shenzhen Advanced Unit for Transportation Safety Production   Shenzhen Municipal Transportation Bureau

 

81

 

 

LEGAL PROCEEDINGS

 

Mingzhu and Mingzhu Pengcheng have been involved in a contract dispute relating to damages of certain vehicles with Shengxin Wang. According to the Civil Judgement issued by the Shenzhen Intermediate People’s Court on August 23, 2018, Shengxin Wang was ordered to pay $3,098 (RMB 21,303) and overdue interests thereof and pay RMB 1(approximately $0.15) as the consideration for certain vehicles to MingZhu Pengcheng and after that, MingZhu Pengcheng and MingZhu should respectively assist to transfer ownership of one tractor and one trailer to Shengxin Wang. According to the Civil Decision of Guangdong Provincial Higher People’s Court issued on December 20, 2018, Shengxin Wang’s application for retrial of the above Civil Judgement was rejected. On March 22, 2019, the Shenzhen Yantian People’s Court issued an Enforcement Order to MingZhu and MingZhu Pengcheng, which ordered MingZhu and MingZhu Pengcheng to perform relevant obligations as required by the foresaid judgement or otherwise the judgement would be enforced by the court. On May 29, 2019, a cash balance equal to Shengxin Wang’s payment obligation was frozen in his bank account and meanwhile, Shengxin Wang took over the tractor from MingZhu Pengcheng. According to the inquiry notes taken by the Yantian People’s Court Enforcement Bureau on May 30, 2019, MingZhu has made preparation for handover of the trailer to Shengxin Wang.  As of the date of this prospectus, Shengxin Wang has taken over the trailer, the balance half of the vehicles, from MingZhu, and the case has been concluded. 

 

However, regarding the same dispute, Shengxin Wang filed another lawsuit against MingZhu Pengcheng. According to the Civil Indictment filed by Shengxin Wang (the plaintiff) on February 26, 2019, Shengxin Wang requested that MingZhu Pengcheng (the defendant) be ordered to compensate for the stoppage loss of $694,098 (RMB 4,772,269). The nature of the case was a property damage compensation dispute. According to the Notice of Appeal issued by the Shenzhen Yantian People’s Court on March 20, 2019, the court has accepted this case. According to the Civil Judgment issued by the Yantian District People’s Court in Shenzhen City, Guangdong Province on August 30, 2019, the court ruled that MingZhu Pengcheng should pay damages in the amount of $29,627 (RMB 203,700) yuan to Shengxin Wang and rejected Shengxin Wang’s other claims. MingZhu Pengcheng submitted an Appeal Petition to the Shenzhen Intermediate People’s Court on September 20, 2019, requesting a change in the judgment of first instance and changing the judgment so that MingZhu Pengcheng will not have to pay the damages to Shengxin Wang. MingZhu Pengcheng has paid the case acceptance fee. As the date of this prospectus, the case is pending for appeal court hearing.

 

On August 22, 2019, Sujin Wei (the plaintiff) submitted a Civil Complaint to the Yangjiang Yangdong District People’s Court against China Pacific Property Insurance Co., Ltd. Shenzhen Branch, MingZhu and two other defendants. The complaint requested that China Pacific Property Insurance Co., Ltd. Shenzhen Branch shall make the death and disability compensation to the plaintiff in the amount of $15,999 (RMB 110,000) and compensate the plaintiff of $44,699 (RMB 307,328.02) within the third party liability insurance limit and also requested that defendants Shengming Zheng and MingZhu shall be jointly and severally liable for the foregoing claims, and the litigation fee in this case shall be borne by the four defendants. According to the response notice issued by the Yangjiang Yangdong District People’s Court on the September 18, 2019, this case has been filed on September 4, 2019. The court held a hearing of this case on October 31, 2019. As of the date of the prospectus, the court has not issued a judgement.

 

Other than the proceeding disclosed above, we are currently not a party to any legal or administrative proceedings that will likely have material impact on our business operations, financial condition or results of operations. 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, may result in additional costs and diversion of our resources, including our management’s time and attention.

 

CORPORATE HISTORY AND STRUCTURE

 

Mingzhu Logistics Holdings Limited (“MingZhu Cayman”) was incorporated on January 2, 2018 as an exempted company structured as a holding company incorporated under the laws of Cayman Islands. Immediately prior to this offering, we were owned by three entities and one individual: Alpha Global (BVI) Limited, a company formed under the laws of the British Virgin Islands and wholly owned by Jinlong Yang, our Chairman and Chief Executive Officer, Excelsior Investment Limited (Hong Kong), a company formed under the laws of Hong Kong and wholly owned by Gui Ling Guo, a director and the Vice Chair of the board of director of our PRC operating subsidiary and Exquisite Elite Limited (BVI), a company formed under the laws of the British Virgin Islands and 86% of the equity interest owned by Zhuo Wang, our director. We began our operations in China in 2002 and currently conduct our business through our subsidiaries.

 

We currently have five wholly-owned subsidiaries, including MingZhu Investment Limited, a company formed under the laws of the British Virgin Islands (“MingZhu BVI”), YGMZ (Hong Kong) Limited (“MingZhu HK”), a limited liability company formed under the laws of Hong Kong and three operating subsidiaries, each a limited liability company formed under the laws of the PRC. In 2002, we formed Shenzhen Yangang Mingzhu Freight Industry Co., Ltd. (“MingZhu”) to primarily engage in the business of transportation services. We also established Shenzhen Pengcheng Shengshi Logistics Co., Ltd. (“MingZhu Pengcheng”) in 2010 under the laws of the PRC to engage in the business of trucking services. Through MingZhu BVI and MingZhu HK, we own 100% of the equity interest of Shenzhen Yangang Mingzhu Supply Chain Management Co., Ltd. (“MingZhu Management”), which is engaged in the business of transportation and supply chain management services. 

 

A reorganization of our legal structure was completed in April 2018. On April 13, 2018, the former shareholders transferred their 100% ownership interest in MingZhu to MingZhu HK, which is 100% owned by MingZhu Cayman through MingZhu BVI. In consideration of such transfer, the Company issued 1,000 ordinary shares to the former shareholders of MingZhu. After the reorganization, MingZhu Cayman owns 100% equity interests of MingZhu BVI, MingZhu HK and MingZhu. The controlling shareholder of MingZhu Cayman is same as that of MingZhu prior to the reorganization.

 

82

 

 

The following diagram illustrates our corporate structure, including our subsidiaries as of the date of this prospectus:  

 

 

83

 

 

REGULATIONS

 

This section sets forth a summary of the most significant laws, rules and regulations that affect our business activities in the PRC and our shareholders’ rights to receive dividends and other distributions from us.

 

Regulations Relating to Foreign Investment

 

The foreign investment is regulated by the Catalogue for the Guidance of Foreign Investment Industries (the “Catalogue”), which was promulgated and implemented in June 1995, respectively amended in 1997, 2002, 2004, 2007, 2011, 2015 and 2017. The version of the Catalogue currently in effect was jointly promulgated by National Development and Reform Commission (“NDRC”) and the MOFCOM in June 2017, effective from July 2017. Pursuant to the Catalogue, the foreign investment industries are divided into three categories in terms of foreign investment, which are “encouraged,” “restricted” and “prohibited”. All industries not listed under one of these categories are deemed to be “permitted.” Moreover, the Special Administrative Measures for Foreign Investment Access (Negative List) (2018) (the “2018 Negative List”) which was promulgated by the NDRC and the MOFCOM in June 2018 and came into effect in July 2018 revised the negative list specified in the Catalog of Industries for Guiding Foreign Investment (last amended in 2017), significantly broadened the market access and reduced the scope of industries in which foreign investments are restricted or prohibited. The business engaged by our PRC subsidiaries is not listed in the 2018 Negative List.

 

In addition, on 30 June 2019, NDRC and MOFCOM had jointly issued the Special Administrative Measures for Access of Foreign Investment (Negative List) (2019 Edition) (the “2019 Negative List”), the Special Administrative Measures for Access of Foreign Investment in Pilot Free Trade Zones (Negative List) (2019 Edition) and the Catalog of Industries for Encouraged Foreign Investment (2019 Edition), all of which will enter into force on July 30, 2019 and the 2018 Negative List, the Catalogue shall be repealed simultaneously. The 2019 edition of negative lists for access of foreign investment, stylistically and structurally same as the 2018 edition, is further made shorter than before, with a number of new opening-up measures launched. The business engaged by our PRC subsidiaries is not listed in the 2019 Negative List.

 

Pursuant to the Provisional Measures on Administration of Filing for Establishment and Modifications of Foreign Investment Enterprises (the “Provisional Measures”), promulgated by MOFCOM on October 8, 2016 and became effective on the same day, was last amended in June 2018, establishment and modifications of foreign-invested enterprises which are not subject to the approval under the special entry management measures shall be filed with the delegated commercial authorities. Within the record-filing scope stipulated in Provisional Measures, foreign-invested enterprises shall fill in online and submit an application for record-filing of the change of foreign-invested enterprises and the relevant documents and handle the record-filing procedures since October 8, 2016. After the completion of record-filing, foreign-invested enterprises may obtain relevant record-filing receipts.

 

Company Law of the PRC (the “Company Law”), which was enacted by the Standing Committee National People’s Congress (the “SCNPC”) in December 1993 and last amended in October 2018, provides for the establishment, corporate structure and corporate management of companies, which also applies to foreign-invested enterprises in the PRC. The PRC Wholly Foreign-owned Enterprise Law promulgated by the SCNPC in April 1986, amended in October 2000 and September 2016 and the Implementation Regulations on the Wholly Foreign-Owned Enterprise Law promulgated and became effective in December 1990, amended in April 2001 and February 2014, regulate the establishment, change, approval procedures of wholly foreign-owned enterprises.

 

On March 15, 2019, the National People’s Congress (the “NPC”) approved the PRC Foreign Investment Law (the “FIL”), which will take into effect on January 1, 2020 and replace three existing laws on foreign investments in the PRC, namely, the PRC Equity Joint Venture Law, the PRC Cooperative Joint Venture Law and the foresaid PRC Wholly Foreign-owned Enterprise Law, together with their implementation rules and ancillary regulations. The FIL 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 invested enterprises in the PRC. The FIL establishes the basic framework for the access to and the promotion, protection and administration of foreign investments in view of investment protection and fair competition.

 

Regulations Relating to Transportation Industry

 

Pursuant to the Regulations of the PRC on Road Transport promulgated by the State Council in April 2004 and last amended in March 2019, the permit on the operation of the road transportation business, issued by the local transportation authority, except otherwise provided by these regulations, is required for any individual or entity to conduct its road transportation business. The transportation vehicles shall take operation licenses which are prohibited from being assigned or leased. Under the Regulations of the PRC on Road Transport, a company engaged in the operation of road transportation without road transportation operation licenses shall be ordered to stop its operation by the administrations of road transportation at the county level or above; any illegal gains shall be confiscated and the company shall be fined not less than 2 times but not more than 10 times of the amount of the illegal gains; where no illegal gains or the illegal gains is less than RMB 20,000, the company shall be fined RMB 30,000 to RMB 100,000. The Regulations of the PRC on Road Transport also clarifies that foreign investors may, in accordance with relevant PRC laws, administrative regulations and relevant state regulations, invest in road transport operations and road transport related businesses in the territory of the People’s Republic of China through Chinese-foreign joint ventures, Sino-foreign cooperation, and sole proprietorship.

 

84

 

 

In 2001, the Provisions on the Administrative of the Foreign-Invested Road Freight Forwarding Industry was promulgated and amended several times, which required that foreign-invested enterprises, engaging in road goods transport, road goods portage and loading and unloading, road goods storage and other supplementary services and vehicle maintenance relating to road transport and foreign invested enterprises for the provision of road freight forwarding services, including the transportation of goods by road, handling, warehousing and other related services, must obtain the Road Freight Forwarding Operation Permit from the provincial competent departments of communications and these enterprises must satisfy specific qualifications and conditions. However, the Provisions on the Administrative of the Foreign-Invested Road Freight Forwarding Industry has been revoked from November 2018 and therefore the business engaged by the Group is no longer regulated by the above provisions.

 

Pursuant to the Notice of Guangdong Provincial Department of Transportation on Delegating the Examination and Approval Authority of the Business Road Transportation of Hong Kong and Macao Enterprises (Yue Jiao Yun [2012] No.1118), the examination and approval authority of the Hong Kong and Macao commercial road transportation enterprises was delegated to the municipal department of transportation above local level, and the Hong Kong and Macao enterprises shall obtain the Road Freight Forwarding Operation Permit from the municipal department of transportation above local level.

 

Regulations Relating to Work Safety

 

Pursuant to the Work Safety Law of the PRC promulgated by the Standing Committee of National People’s Congress in June 2002 and was recently amended in August 2014, road transportation entities shall establish a work safety management office or be staffed with full-time work safety management personnel. In March 2015, the Ministry of Transportation issued the Notice on Implementing the Work Safe Law, pursuant to which, the relevant enterprise shall establish and improve the safety production responsibility system covering all aspects of production and operation, clear standards and responsibility to the post, solidly promote the standardization of production safety and strengthen safety production management.

 

Regulations Relating to Dividend Distributions

 

The principal regulations governing the distribution of dividends paid by wholly foreign-owned enterprises include the PRC Wholly Foreign-Owned Enterprise Law issued in 1986 and most recently amended in 2016, and the Implementation Regulations on the Wholly Foreign-Owned Enterprise Law issued in 1990 and most recently amended in 2014. Under these regulations, wholly foreign-owned enterprises in China may pay dividends only out of their accumulated profits, if any, as determined in accordance with PRC accounting standards and regulations. In addition, a wholly foreign-owned enterprise in China is required to set aside at least 10% of its after-tax profit based on PRC accounting standards each year to its general reserves until its cumulative total reserve funds reach 50% of its registered capital. These reserve funds, however, may not be distributed as cash dividends. Pursuant the FIL, foreign investors may, according to the present Law, freely remit into or out of China, in RMB or any other foreign currency, their capital contributions, profits, capital gains, income from asset disposal, intellectual property royalties, lawfully acquired compensation, indemnity or liquidation income and so on within the territory of China.

 

Regulations Relating to Foreign Exchange

 

Circular on Relevant Issues Concerning Foreign Exchange Control on Domestic Residents’ Offshore Investment and Financing and Round-trip Investment Through Special Purpose Vehicles, or Circular 37, issued by SAFE in and effective July 2014, regulates foreign exchange matters in relation to the use of special purpose vehicles, or SPVs, by PRC residents or entities to seek offshore investment and financing and conduct round trip investment in China. Under Circular 37, a SPV refers to an offshore entity established or controlled, directly or indirectly, by PRC residents or entities for the purpose of seeking offshore financing or making offshore investment, using legitimate domestic or offshore assets or interests, while “round trip investment” refers to the direct investment in China by PRC residents or entities through SPVs, namely, establishing foreign-invested enterprises to obtain the ownership, control rights and management rights. Circular 37 requires that, before making contribution into an SPV, PRC residents or entities are required to complete foreign exchange registration with SAFE or its local branch. Circular 37 further provides that option or share-based incentive tool holders of a non-listed SPV can exercise the options or share incentive tools to become a shareholder of such non-listed SPV, subject to registration with SAFE or its local branch.

 

PRC residents or entities which have contributed legitimate domestic or offshore interests or assets to SPVs but have yet to obtain SAFE registration before the implementation of the Circular 37 shall register their ownership interests or control in such SPVs with SAFE or its local branch. An amendment to the registration is required if there is a material change in the registered SPV, such as any change of basic information (including change of such PRC resident’s name and operation term), increases or decreases in investment amounts, transfers or exchanges of shares, or mergers or divisions. Failure to comply with the registration procedures set forth in Circular 37, or making misrepresentation or failure to disclose controllers of foreign-invested enterprise that is established through round-trip investment, may result in restrictions on the foreign exchange activities of the relevant foreign-invested enterprises, including payment of dividends and other distributions, such as proceeds from any reduction in capital, share transfer or liquidation, to its offshore parent or affiliate, and the capital inflow from the offshore parent, and may also subject relevant PRC residents or entities to penalties under PRC foreign exchange administration regulations. In February 2015, SAFE further promulgated the Circular on Further Simplifying and Improving the Administration of the Foreign Exchange Concerning Direct Investment, or SAFE Circular 13, effective June 2015. This SAFE Circular 13 has amended SAFE Circular 37 by 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. Circular 37 is applicable to our shareholders who are PRC residents and may be applicable to any offshore acquisitions that we make in the future. All of our shareholders who, to our knowledge, are subject to the above SAFE regulations have completed the necessary registrations with the local SAFE branch or qualified banks as required by SAFE Circular 37.

  

85

 

 

In March 2015, SAFE promulgated the Circular on Reforming the Administration Approach of Foreign Exchange Settlement of Capital of Foreign-invested Enterprises, or Circular 19, effective June 2015. According to Circular 19, the foreign exchange capital of foreign-invested enterprises shall be subject to the Discretionary Foreign Exchange Settlement. The Discretionary Foreign Exchange Settlement refers to the 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 the book-entry registration of monetary contribution by the banks) can be settled at the banks based on the actual operational needs of the foreign-invested enterprise. The proportion of Discretionary Foreign Exchange Settlement of the foreign exchange capital of a foreign-invested enterprise is temporarily determined 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 further payment from such account, it still needs to provide supporting documents and go through the review process with the banks.

 

SAFE issued the Circular on Reforming and Regulating Policies on the Control over Foreign Exchange Settlement of Capital Accounts, or Circular 16, in June 2016, which became effective simultaneously. Pursuant to Circular 16, enterprises registered in the PRC may also convert their foreign debts from foreign currency to Renminbi on a discretionary basis. Circular 16 provides an integrated standard for conversion of foreign exchange under capital account items (including but not limited to foreign currency capital and foreign debts) on a discretionary basis which applies to all enterprises registered in the PRC. Circular 16 reiterates the principle that Renminbi converted from foreign currency-denominated capital of a company may not be directly or indirectly used for purposes beyond its business scope or prohibited by PRC laws or regulations, while such converted Renminbi shall not be provided as loans to its non-affiliated entities. As Circular 16 is newly issued, and SAFE has not provided detailed guidelines with respect to its interpretation or implementations, it is uncertain how these rules will be interpreted and implemented.

 

On January 26, 2017, SAFE promulgated the Circular on Further Improving Reform of Foreign Exchange Administration and Optimizing Authenticity and Compliance Verification, or Circular 3, which took effect on the same day. Circular 3 sets out various measures to tighten authenticity and compliance verification of cross-border transactions and cross-border capital flow, which include without limitation requiring banks to verify board resolutions, tax filing form, and audited financial statements before wiring foreign invested enterprises’ foreign exchange distribution above US$50,000, and strengthening genuineness and compliance verification of foreign direct investments.

 

In November 2012, SAFE issued the Circular of Further Improving and Adjusting Foreign Exchange Administration Policies on Foreign Direct Investment, as amended in May 2015 and October 2018, respectively, foreign exchange control methods for direct investments has been improved through cancelling and adjusting certain administrative licensing items for foreign exchange control for direct investments. Approval formalities for account opening and deposit for foreign currency accounts under direct investments and approval formalities for reinvestment of domestic legitimate income of foreign investors have been cancelled. Administration for conversion of foreign currency capital into Renminbi by foreign investment enterprises has also been improved.

 

Our PRC subsidiaries’ distributions to their offshore parents are required to comply with the requirements as described above.

  

Regulations Relating to Funds Transfer to PRC Subsidiaries

 

We are permitted under PRC laws and regulations as an offshore holding company to provide funding to our PRC subsidiaries through loans or capital contributions, subject to satisfaction of applicable government registration, approval and filing requirements.

 

In the event of subsequent changes in the capital of the foreign-invested enterprise such as increase in capital, such foreign-invested enterprise shall complete change filing formalities with competent administrations for market regulation and commerce in accordance with relevant regulations, and registration change formalities shall also be completed with the competent administration of foreign exchange according to the Provisions on Foreign Exchange Control on Direct Investments in China by Foreign Investors. In addition, pursuant to Circular 16, foreign invested enterprise shall use its capital pursuant to the principle of authenticity and self-use within its business scope. The capital of a foreign invested enterprise shall not be used for the following purposes: (i) directly or indirectly used for payment beyond the business scope of the enterprises or the payment prohibited by relevant laws and regulations; (ii) directly or indirectly used for investment in securities or investments other than banks’ principal-secured products unless otherwise provided by relevant laws and regulations; (iii) the granting of loans to non-affiliated enterprises, except where it is expressly permitted in the business license; and (iv) paying the expenses related to the purchase of real estate that is not for self-use (except for the foreign-invested real estate enterprises).

 

Pursuant to the Provisional Measures on Administration of Foreign Debt (the “Foreign Debt Measures”) issued by the State Development Planning Commission (revised), Ministry of Finance and SAFE in January 2003 and became effective on March 1, 2003, any loans provided by us to our PRC subsidiaries in foreign currencies shall be classified as foreign debt under the Foreign Debt Measures. According to the Foreign Debt Measures, the sum of cumulative accrued amounts of medium-term to long-term foreign loans and balance amounts of short-term foreign loans taken by a foreign investment enterprise shall be limited to the difference between the total project investment amount approved by the government and the amount of registered capital. Foreign investment enterprises may take foreign loans freely within the scope of difference. 

 

86

 

 

On January 12, 2017, the PBOC issued the Notice of People’s Bank of China on Matters Concerning Macro-prudential Management on All-round Cross-border Financing (the “No.9 Notice”), which improved the policy framework of the cross-border financing. The No.9 Notice clarifies the new calculation methods of the upper limit of the risk-weighted balance for all types of cross-border financing, in particular, the upper limit for risk-weighted balance for cross-border financing equals to the capital or the net assets multiplied by the leverage rate of cross-border financing and the macro-prudential adjustment parameters. In the case of our PRC subsidiaries, the capital or the net assets is calculated at the net assets of each subsidiary, the leverage rate for cross-border financing for an enterprise is 2, and the macro-prudential adjustment parameter is 1 (the “All-Round Mode”). Currently, the implementation of the foregoing methodologies in cross-border financing have not been formally determined by the PBOC and the SAFE. In the practice, according to the SAFE Shenzhen Branch, which is the competent local SAFE authority for our PRC subsidiaries, foreign-invested enterprises may choose between the Investment Difference Mode and the All-round Mode, but the enterprise cannot change the methodology once it makes the choice and the enterprise may be required to submit different materials for these two methodologies. Based on the current registered capital and total project investment amount, if we would provide funding to our PRC subsidiaries through loans and use the Investment Difference Mode, our PRC subsidiaries will be required to increase its registered capital and total project investment amount. Alternatively, if we choose to use the All-Round Mode, the amount of loans we can make to our PRC subsidiaries as calculated according to the No.9 Notice will not be more than twice of the net assets of such entities.

 

Moreover, as the debtors of cross-border financing, our PRC subsidiaries are also required to comply with certain registration formalities for execution of foreign debt contracts with the foreign exchange bureau at the locality within fifteen working days after signing the contracts according to the Notice of State Administration of Foreign Exchange on Promulgation of the Administrative Measures on Registration of Foreign Debt which was promulgated by the SAFE in April 2013 and revised in May 2015.

 

Regulations Relating to Taxation in the PRC

 

Enterprise Income Tax

 

In accordance with the PRC Enterprise Income Tax Law (the “EIT Law”, promulgated in March 2007 and last amended in December 2018) and the Regulations on the Implementation of Enterprise Income Tax Law of the PRC (the “EIT Regulations”, promulgated in December 2007 and last amended in April 2019), enterprises are classified as either “resident enterprises” or “non-resident enterprises.” Enterprises that are set up in the PRC under the PRC laws, or that are set up in accordance with the law of the foreign country (region) whose actual administration institution is in PRC, shall be considered as “resident enterprises.” Enterprises established under the law of the foreign country (region) with “de facto management bodies” outside the PRC, but have set up institutions or establishments in PRC or, without institutions or establishments set up in the PRC, have income originating from PRC, shall be considered as “non-resident enterprises.” The Circular Related to Relevant Issues on the Identification of a Chinese holding Company Incorporated Overseas as a Residential Enterprise under the Criterion of De Facto Management Bodies Recognizing issued by the State Administration of Taxation (the Circular 82) promulgated by the State Administration of Taxation on April 22, 2009 and revised in December 2017 provides that a foreign enterprise controlled by a PRC company or a PRC company group will be classified as a “resident enterprise” with its “de facto management bodies” located within China if the following requirements are satisfied: (i) the senior management and core management departments in charge of its daily operations function mainly in China; (ii) its financial and human resources decisions are subject to determination or approval by persons or bodies in China; (iii) its major assets, accounting books, company seals and minutes and files of its board and shareholders’ meetings are located or kept in China; and (iv) half or more than half of the enterprise’s directors or senior management with voting rights reside in China. Although the circular only applies to offshore enterprises controlled by PRC enterprises and not those controlled by PRC individuals or foreigners, the determining 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 offshore enterprises, regardless of whether they are controlled by PRC enterprises, individuals or foreigners.

 

A resident enterprise shall pay EIT on its income originating from both inside and outside PRC at an EIT rate of 25%. A non-resident enterprise that has establishments or places of business in the PRC shall pay EIT on its income originating from PRC obtained by such establishments or places of business, and on its income which deriving outside PRC but has an actual connection with such establishments or places of business, at the EIT rate of 25%. A non-resident enterprise that does not have an establishment or place of business in the PRC, or it has an establishment or place of business in the PRC but the income has no actual connection with such establishment or place of business, shall pay EIT on its passive income derived from the PRC at a reduced EIT rate of 10%.

 

87

 

 

According to the Public Notice Regarding Certain Corporate Income Tax Matters on Indirect Transfer of Properties by Non-Tax Resident Enterprises (the “SAT Bulletin 7”) which was promulgated by SAT on February 3, 2015 and came into effect on the same day, revised in October 2017 and December 2017, where a non-resident enterprise indirectly transfers equities and other assets of a PRC resident enterprise to avoid the EIT payment obligation by making an arrangement with no reasonable business purpose, such indirect transfer shall be redefined and recognized as a direct transfer in accordance with the provisions of the EIT Law. Where the EIT on the income from the indirect transfer of real estate or equities shall be paid in accordance with the provisions of this Announcement, the entity or individual that directly assumes the obligation to make relevant payments to the transferor according to the provisions of the relevant laws or as agreed upon in the contract shall be the withholding agent. On October 17, 2017, the SAT issued the Announcement of the State Administration of Taxation on Issues Concerning the Withholding of Non-resident Enterprise Income Tax at Source (the “SAT Bulletin 37), which came into effect on December 1, 2017 and revised in June 2018. The SAT Bulletin 37 further clarifies the practice and procedure of the withholding of non-resident enterprise income tax.

 

Value-added Tax

 

Pursuant to the Provisional Regulations on Business Tax which was promulgated by the State Council in December 1993 and revised in November 2008, organizations and individuals engaging in provision of labour services stipulated in these regulations, transfer of intangible assets or sale of immovables in China shall be taxpayers of business tax and shall pay business tax and the applicable business rate for transportation industry is 3%. In accordance with Circular on Comprehensively Promoting the Pilot Programme of the Collection of Value-added Tax in Lieu of Business Tax (Caishui [2016] No. 36), which was promulgated on March 23, 2016 and came into effect on May 1, 2016 and has been partially abolished, upon approval of the State Council, the pilot programme of the collection of VAT in lieu of business tax shall be promoted nationwide in a comprehensive manner starting from May 1, 2016, and all business tax payers engaged in the building industry, the real estate industry, the financial industry and the life service industry shall be included in the scope of the pilot programme with regard to payment of value-added tax instead of business tax. For transportation service income, the application VAT tax rate is 11%.

  

Pursuant to the Provisional Regulations on Value-added Tax of the PRC (the “VAT Regulations”) last amended in November 2017 and effective on the same day and its implementation rules, all entities or individuals in the PRC engaging in the sale of goods, providing labor services of processing, repairs or maintenance, or selling services, intangible assets or real property in China, or importing goods to China are required to pay value-added tax (the “VAT”). The amount of VAT payable is calculated as “output VAT” minus “input VAT.” The rate of VAT is 17% for those engaging in the sale of goods or labor services or tangible personal property leasing services or importation of goods except as otherwise provided by the VAT Regulations. Furthermore, pursuant to the VAT Regulations, the tax rate of VAT is 11% for the sales of the service of transportation, posting, basic telecommunications, construction and leasing real estate, the sale of real estate and the transfer of land use right, or sell or import the goods listed in the VAT Regulations.

 

In April 2018, MOF and SAT jointly promulgated the Circular of the Ministry of Finance and the State Administration of Taxation on Adjustment of Value-Added Tax Rates, or Circular 32, according to which for VAT taxable sales acts or importation of goods originally subject to value-added tax rates of 17% and 11% respectively, such tax rates shall be adjusted to 16% and 10%, respectively. Circular 32 became effective on May 1, 2018 and shall supersede existing provisions which are inconsistent with Circular 32.

 

In March 2019, MOF, SAT and GAC jointly promulgated the Announcement on Policies for Deepening the VAT Reform, or Circular 39, according to which for general VAT payers’ sales activities or imports that are subject to VAT at an existing applicable rate of 16% or 10%, the applicable VAT rate is adjusted to 13% or 9% respectively. This Announcement came into force on April 1, 2019.

 

Urban Maintenance and Construction Tax

 

Pursuant to the Provisional Regulation on Urban Maintenance and Construction Tax of the PRC as amended in January 2011, any taxpayer, whether an entity or individual, of consumption tax, value-added tax or business tax shall be required to pay urban maintenance and construction tax based on the total amount of consumption tax, value-added tax or business tax paid by such taxpayer. The tax rate shall be 7% for a taxpayer whose domicile is in an urban area, 5% for a taxpayer whose domicile is in a county or a town, and 1% for a taxpayer whose domicile is not in any urban area or county or town.

 

88

 

 

Education Surcharge

 

Pursuant to the Provisional Provisions on Imposition of Education Surcharge as amended in January 2011, a taxpayer, whether an entity or individual, of consumption tax, value-added tax or business tax shall pay an education surcharge at a rate of 3% on the total amount of consumption tax, value-added tax or business tax paid by such entity, unless such obliged taxpayer is instead required to pay a rural area education surcharge as stipulated under the Notice of the State Council on Raising Funds for Schools in Rural Areas that promulgated by State Council in December 1984.

 

Dividend Withholding Tax

 

The EIT Law prescribes a standard withholding tax rate of 20% on dividends and other China-sourced income of non-resident enterprises that have not set up institutions or establishments in China, or have set up institutions or establishments but the income obtained by the said enterprises has no actual connection with the set up institutions or establishments. However, the EIT Regulations reduced the rate from 20% to 10% with the implementation date starting from 1 January 2008. Pursuant to the EIT Law and the EIT Regulations, an income tax rate of 10% will normally be applicable to dividends payable to investors that are “non-resident enterprises”, and gains derived by such investors, which (a) do not have an establishment or place of business in mainland China or (b) have an establishment or place of business in mainland China, but the relevant income is not effectively connected with the establishment or place of business to the extent such dividends and gains are derived from sources within mainland China. Such income tax on the dividends may be reduced pursuant to a tax treaty between China and the jurisdictions in which our foreign shareholders reside.

 

Pursuant to the 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 Tax on Income (the “Double Tax Avoidance Arrangement”), and other applicable mainland Chinese laws, if a Hong Kong resident enterprise is determined by the competent tax authority in mainland China 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 mainland China resident enterprise may be reduced to 5% upon receiving approval from in-charge tax authority. However, based on the Notice on Certain Issues with Respect to the Enforcement of Dividend Provisions in Tax Treaties (the “Notice No. 81”) issued in February 2009 by the SAT, if the relevant Chinese 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 Chinese tax authorities may adjust the preferential tax treatment. Based on Notice of the State Administration of Taxation on How to Understand and Determine the “Beneficial Owners” in Tax Agreements (the “Notice No. 601”), issued in October 2009 by the SAT, conduit companies, which are established for the purpose of evading or reducing tax, or transferring or accumulating profits, shall not be recognized as beneficial owners and thus are not entitled to the above-mentioned reduced income tax rate of 5% under the Double Tax Avoidance Arrangement. In February 2018, SAT issued the Announcement of the State Administration of Taxation on Issues Relating to “Beneficial Owner” in Tax Treaties, which became effective on April 1 and “the Notice 601” was repealed simultaneously. The Announcement of the State Administration of Taxation on Issues Relating to “Beneficial Owner” in Tax Treaties stipulates issues relating to determination of “beneficial owner” status in clauses of tax treaties on dividends, interest and royalties.

 

Tax Collection and Payment

 

The Law of the PRC on the Administration of Tax Collection (the “Tax Collection Law”), which was promulgated by the Standing Committee of National People’s Congress in September 1992 and last amended in April 2015, prescribes a regulatory framework of tax collection and payment in the PRC and the Implementation Regulations for the Law of the PRC on Administration of Tax Collection as amended in February 2016 has made further provisions on the basis of the Tax Collection Law. Pursuant to the Tax Collection Law, a taxpayer or withholding agent shall pay or deliver tax payments in compliance within the time limit specified by laws or administrative regulations, or as determined by taxation authorities in accordance with laws or administrative regulations. Where a taxpayer or a withholding agent fails to pay or underpays the amount of tax that should be paid or remitted within the specified time, the tax authorities shall order the taxpayer or withholding agent to pay or remit the tax within the specified time limit, and impose a penalty for late payment on a daily basis at the rate of 0.05% of the amount of tax in arrears from the date the tax payment is defaulted. If the taxpayer or withholding agent still fails to do so on the expiration of the time limit, the tax authorities may recover such unpaid taxes by adopting compulsory enforcement measures, and impose a fine of not less than 50% but not more than five times the amount of tax the taxpayer or withholding agent fails to pay or underpays or fails to remit. As prescribed by the Tax Collection Law, such compulsory enforcement measures adopted by the tax authorities may include (i) to notify in writing the bank or any other financial institution with which the taxpayer, withholding agent or tax payment guarantor has opened an account to withhold and remit the taxes from its deposits; (ii) to attach, seal up or, in accordance with law, auction or dispose of the commodities, goods or other property of the taxpayer, withholding agent or tax payment guarantor, valued equivalent to the taxes payable, and to use the proceeds therefrom to offset the taxes payable. Furthermore, the taxation authorities shall also announce the tax payments defaulted by taxpayers regularly.

 

Regulations Relating to Intellectual Property in the PRC

 

Copyright

 

Pursuant to the Copyright Law of the PRC, as amended in 2010, copyright protection extends to cover Internet activities and products disseminated over the Internet. Pursuant to the Regulations on the Protection of Computer Software promulgated by the State Council In December 2001 and most recently amended in January 2013, and the Rules for the Registration of Computer Software Copyright, which was promulgated by the China Copyright Office and came into effect in February 2002, anyone publishes, revises or translates computer software without obtaining the prior approval of the computer software copyright holders shall bear civil liability to the copyright owner because of harming the copyright. The corporate computer software copyright is valid for a term of 50 years until 31 December of the 50th year, starting from the date as of first publication. The computer software copyright owners shall register at the registration institution authorized by the PRC Copyright Office to obtain the computer software copyright registration certificates as preliminary evidence of the computer software copyright being registered.

 

89

 

 

Trademark

 

Pursuant to the Trademark Law of the PRC, as amended in 2013, which has been amended recently in April 2019 and will become effective from November 2019, and the Implementation Regulations on the Trademark Law of the PRC amended in April 2014, the period of validity of a registered trademark shall be ten years, counted from the day the registration is approved. The trademark registrant may, by concluding a trademark licensing contract, authorize other persons to use the registered trademark. The licensor shall supervise the quality of the goods on which the licensee uses the licensor’s registered trademark, and the licensee shall guarantee the quality of the goods on which the registered trademark is used. Without putting the licensing of the trademark on records, the trademark shall not be used to defend the bona fide third party.

 

Patent

 

Pursuant to the Patent Law of the PRC, as amended in 2008, after the grant of the patent right for an invention or utility model, except where otherwise provided for in the Patent Law, no entity or individual may, without the authorization of the patent owner, exploit the patent, that is, make, use, offer to sell, sell or import the patented product, or use the patented process, or use, offer to sell, sell or import any product which is a direct result of the use of the patented process, for production or business purposes. After a patent right is granted for a design, no entity or individual shall, without the permission of the patent owner, exploit the patent, that is, for production or business purposes, manufacture, offer to sell, sell, or import any product containing the patented design. Once the infringement of a patent is confirmed, the infringer shall, in accordance with the regulations, undertake to cease the infringement, take remedial action, and pay damages, etc.

 

Domain Name

 

The domain name is protected and regulated under the Measures for the Administration of Domain Names for the Internet promulgated in August 2017 and effective in November 2017. According to these measures, the principle “first come, first serve” is followed for the domain name registration service. After completing the domain name registration, the applicant becomes the holder of the domain name registered by him/it. Any organization or individual may file an application for settlement with the domain names dispute resolution institution or file a lawsuit in the people’s court in accordance with the law if such organization or individual consider its/his legal rights and interests to be infringed by domain names registered or used by others.

 

Regulations Relating to Labor Protection in the PRC

 

Enterprises in China are mainly subject to the following PRC labor laws and regulations: Labor Law of the PRC, PRC Labor Contracts Law, the Social Insurance Law of the PRC, the Regulation of Insurance for Work-Related Injury, the Regulations on Unemployment Insurance, the Provisional Measures on Insurance for Maternity of Employees, the Interim Regulation on the Collection and Payment of Social Insurance Premiums, the Administrative Regulation on Housing Fund and other related regulations, rules and provisions issued by the relevant governmental authorities from time to time.

 

Pursuant to Labor Law of the PRC, which was promulgated in July 1994, effective January 1995, and most recently amended in December 2018, companies must enter into employment contracts with their employees, based on the principles of equality, consent and agreement through consultation. Companies must establish and effectively implement a system of ensuring occupational safety and health, educate employees on occupational safety and health, preventing work-related accident and reducing occupational hazards. Companies must also pay for their employees’ social insurance premium.

 

The principal regulations governing the employment contract is the PRC Labor Contracts Law, which was promulgated in June 2007 and amended in December 2012. Pursuant to the PRC Labor Contracts Law, employers shall establish employment relationship with employees on the date that they start employing the employees. To establish an employment, a written employment contract shall be concluded, or employers will be liable for the illegal actions. Furthermore, the probation period and liquidated damages shall be restricted by the law to safeguard employees’ rights and interests.

 

As required under the Social Insurance Law of the PRC, the Regulation of Insurance for Work-Related Injury, the Regulations on Unemployment Insurance, the Provisional Measures on Insurance for Maternity of Employees and the Administrative Regulation on Housing Fund, enterprises in China are obliged to provide employees with welfare schemes covering pension insurance, unemployment insurance, maternity insurance, injury insurance, medical insurance and housing accumulation fund.

 

Regulations Relating to Overseas Listing

 

Under the Regulations on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors, or the M&A Rules, were jointly adopted by six PRC regulatory authorities, including CSRC, in August 2006, and most recently amended in June 2009, a foreign investor is required to obtain necessary approvals when (i) a foreign investor acquires equity in a domestic non-foreign invested enterprise thereby converting it into a foreign-invested enterprise, or subscribes for new equity in a domestic enterprise via an increase of registered capital thereby converting it into a foreign-invested enterprise; or (ii) a foreign investor establishes a foreign-invested enterprise which purchases and operates the assets of a domestic enterprise, or which purchases the assets of a domestic enterprise and injects those assets to establish a foreign-invested enterprise. According to the M&A Rules, where a domestic company or enterprise, or a domestic natural person, through an overseas company established or controlled by it/him, acquires a domestic company which is related to or connected with it/him, approval from MOFCOM is required.

 

90

 

 

MANAGEMENT

 

Directors and Executive Officers

 

The following table sets forth information regarding our executive officers, directors and director nominees as of the date of this prospectus. Unless otherwise stated, the business address for our directors and executive officers is that of our principal executive offices at 27F, Yantian Modern Industry Service Center, No. 3018 Shayan Road, Yantian District, Shenzhen, China 518081.

 

Name   Age   Position with our company
Jinlong Yang   43   Chairman of the Board of Directors and Chief Executive Officer
Zhuo Wang   31   Director
Jingwei Zhang   31   Chief Financial Officer
Mikael Charette   39   Independent Director Nominee*
Yanhong Xue   47   Independent Director Nominee*
To Wai Suen   45   Independent Director Nominee*

 

* This individual has indicated his or her assent to occupy such position upon the effective date of the registration statement of which this prospectus forms a part.

 

Jinlong Yang has served as our Chief Executive Officer and Chairman of our Board of Directors since April 2018 and the Executive Director and General Manager of MingZhu since August 2012. Mr. Yang has over ten years of experience in the transportation industry. He joined MingZhu as a sales manager in May 2009 and was subsequently promoted to the General Manager, Executive Director and legal representative of MingZhu. Prior to joining MingZhu, Mr. Yang served as an officer at the Exit and Entry Frontier Inspection Stations in Shenzhen, Guangdong, China. Mr. Yang holds a Bachelor of Law degree from the Party School of the Central Committee of the Communist Party of China. We believe Mr. Yang is well qualified to serve on our Board of Directors because of his extensive operating and management experience and knowledge in the transportation industry.

 

Zhuo Wang has served as our director since April 2018. Mr. Wang has nine years of experience in investment and management. Since June 2018, he has been the Marketing Manager of Springview Enterprises Private Limited, a Singapore construction design and building supply company. Since May 2017, Mr. Wang has also been serving as the managing director of China International Securities Limited, a Hong Kong based securities firm, overseeing the firm’s brokerage services business operations and performance. Since March 2017, he has been serving as a director of China International Corporate Management Limited, a Hong Kong-based consulting firm that provides a range of business solutions to small and medium sized companies in Asia. Since April 2016, Mr. Wang has been serving as the Head of Finance and Operations of Shines International Limited, a management consultancy firm in Singapore specializing in education. Since October 2012, Mr. Wang has been serving as Head of Finance and Marketing of GGL Enterprises Pte. Ltd., a Singapore based firm that provides building external and interior designs, main contractor services and material supplies for major renovation and building works. In addition, Mr. Wang served as directors in the board of various companies, including Belvedere Ventures Pte Ltd, a real estate development and construction company, Sandhurst Global Pte Ltd., a security personnel staffing and systems company, and several holding companies. Mr. Wang holds a Bachelor of Science in Business Management from Babson College in Boston, Massachusetts. We believe Mr. Wang is well qualified to serve on our Board of Directors because of his experience in investment and management.

 

Jingwei Zhang has served as our Chief Financial Officer since April 2018. He has been serving as Financial Director of MingZhu since December 2016 where he oversees all aspects of financial control, manages yearly financial and inter-audits and provides financial, commercial and strategic support to the company. From May 2015 to November 2016, Mr. Zhang served as a corporate accountant of ERI Management, a management advisory firm in Singapore, where he reviewed clients’ accounts to ensure regulatory and U.S. GAAP compliance, assisted clients on cost management and budgeting and provided tax-related consultancy to reduce clients’ potential risks. From Jan 2014 to May 2015, Mr. Zhang served as an accountant at St. Plum-Blossom Press Pty. Ltd., a publisher in Melbourne, Australia, where he was responsible for bookkeeping and preparation of financial statements. Mr. Zhang holds a Bachelor of Business and Commerce in Accounting from Monash University in Melbourne, Australia and an Associate Degree in Business Administration from City University of Hong Kong.

 

91

 

 

Mikael Charette will serve as a director as of the effective date of the registration statement of which this prospectus forms a part. He has been serving as Vice Chairman and Director of the Canadian Chamber of Commerce in Shanghai since April 2019 where he represents the interest of the Canadian business community in Shanghai. Since April 2019, he has also been serving as the Vice President of Fung & Yu CPA Ltd., a Hong Kong based accounting firm serving clients in Greater China and overseas. Since May 2006, Mr. Charette has also been serving as the President of Well Asia Group, an assets holding and managing company that provides immigration and real estate services to high net worth individuals. For the periods from February 2005 to May 2006 and from January 2009 to December 2015, he served as a partner of Harvey Law Group where he built a successful immigration practice for high net worth individuals and also represented clients in cross-border transactions and advised on market entry issues in China and other Asian countries. Mr. Charette holds a Master in Law degree from City University of Hong Kong and a Juris Doctor degree from University of Victoria in Victoria, Canada. We believe Mr. Charette is well qualified to serve on our Board of Directors because of his extensive experience with legal matters relating to cross-border transactions.

 

Yanhong Xue will serve as a director as of the effective date of the registration statement of which this prospectus forms a part. Ms. Xue has over 20 years of experience in finance and accounting. She has been serving as the Chief Financial Officer of XT Energy Group, Inc. (OTCQB: XTEG) since July 2018. She has also been serving as a Partner at Wall Street CPA Services, LLC, a middle market accounting and advisory firm, since October 2010. While at Wall Street CPA Services, LLC, she served as Chief Financial Officer of General Agriculture Corp. (OTCBB: GELT), an agriculture company, from July 2013 to April 2017, and Chief Financial Officer of China For-Gen Corp., a biotechnology company, and Vice President in Finance of Huifeng Bio-Pharmaceutical Technology (OTCBB: HFGB), a pharmaceutical company. Prior to that, she was a senior manager in the SEC Audit Services department of Acquaella, Chiarelli, Shuster, Berkower & Co., LLP, a certified public accounting & advisory firm, from September 2007 to October 2010. Ms. Xue also served as Manager in the Finance & Accounting Department of China Youth Daily from September 1997 to October 2004. Ms. Xue received a bachelor’s degree in history from Peking University and a master’s degree in accounting from State University of New York at Binghamton. She is a Certified Public Accountant in the State of New York and a member of American Institute of Certified Public Accountants. We believe Ms. Xue is well qualified to serve on our Board of Directors because of her extensive experience with accounting matters and public companies.

 

To Wai Suen will serve as a director as of the effective date of the registration statement of which this prospectus forms a part. Mr. Suen has over 18 years of experience in finance and accounting. He has been serving as Chief Financial Officer and corporate secretary of China Smarter Energy Group Holdings Limited, a company listed on the Hong Kong Stock Exchange, since February 2017, where he is responsible for the company’s mergers, acquisitions, investment, finance, internal control, audit, compliance and accounting. For the period from May 2015 to August 2016, Mr. Suen served as Chief Financial Officer and company secretary of China Saite Group Company Limited, a company listed on the Hong Kong Stock Exchange, where he was responsible for the company’s mergers, acquisitions, investment, internal control, audit, compliance and accounting. Prior to that, he held various audit roles, including Staff Accountant, Senior Accountant and Senior Audit Manager, at Deloitte Touche Tohmatsu CPA Ltd. from January 2001 to January 2012 and Deloitte Touche Tohmatsu Limited from February 2012 to July 2013. Mr. Suen has served as a director of a number of investment holding companies, including Rising Group Limited, Rising Development Limited, Rising Manufacturing Limited, each an investment holding company formed under the laws of Hong Kong and Paprika Holdings Limited, an investment holding company formed under the laws of the Cayman Islands. Mr. Suen holds a Bachelor of Arts degree from The Chinese University of Hong Kong and a Bachelor of Commerce degree from The University of Western Australia. He is a member of the Hong Kong Institution of Certified Public Accountant and a Certified Practicing Accountant of Australia. We believe Mr. Suen is well qualified to serve on our Board of Directors because of his extensive experience in accounting and finance.

 

92

 

 

Board of Directors and Committees

 

Upon the SEC’s declaration of effectiveness of our registration statement on Form F-1, of which this prospectus is a part, our board of directors will consist of five directors, including two executive directors and three independent directors. We will also establish an Audit Committee, a Nominating and Corporate Governance Committee and a Compensation Committee upon the effectiveness of our registration statement on Form F-1, of which this prospectus is a part. We will adopt a charter for each of the three committees. Each of the committees of our board of directors shall have the composition and responsibilities described below.

 

Audit Committee

 

Mikael Charette, Yanhong Xue and To Wai Suen will serve as members of our Audit Committee. Ms. Xue will serve as the chair of the Audit Committee. Each of our Audit Committee members will satisfy the “independence” requirements of the Nasdaq listing rules and meet the independence standards under Rule 10A-3 under the Exchange Act. We have determined that Ms. Xue possesses accounting or related financial management experience that qualifies her as an “audit committee financial expert” as defined by the rules and regulations of the SEC. Our Audit Committee oversees our accounting and financial reporting processes and the audits of our financial statements. Our Audit Committee will perform several functions, including:

 

evaluating the independence and performance of, and assesses the qualifications of, our independent auditor, and engages such independent auditor;

 

approving 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;

 

monitoring the independence of the independent auditor and the rotation of partners of the independent auditor on our engagement team as required by law;

 

reviewing 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;

 

overseeing all aspects of our systems of internal accounting control and corporate governance functions on behalf of the board;

 

reviewing and approving in advance any proposed related-party transactions and report to the full Board on any approved transactions; and

 

providing oversight assistance in connection with legal, ethical and risk management compliance programs established by management and our board of directors, including Sarbanes-Oxley Act implementation, and makes recommendations to our board of directors regarding corporate governance issues and policy decisions.

 

93

 

 

Compensation Committee

 

Mikael Charette, Yanhong Xue and To Wai Suen will serve as members of our Compensation Committee. Mr. Charette will serve as the chairman of the Compensation Committee. All of our Compensation Committee members satisfy the “independence” requirements of the Nasdaq listing rules and meet the independence standards under Rule 10A-3 under the Exchange Act. Our Compensation Committee will be responsible for overseeing and making recommendations to our board of our 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.

 

Nominating and Corporate Governance Committee

 

Mikael Charette, Yanhong Xue and To Wai Suen will serve as members of our Nominating and Corporate Governance Committee. Mr. Charette will serve as the chairman of the Nominating and Corporate Governance Committee. All of our Nominating and Corporate Governance Committee members will satisfy the “independence” requirements of the Nasdaq listing rules and meet the independence standards under Rule 10A-3 under the Exchange Act. Our Nominating and Corporate Governance Committee will be responsible for identifying and proposing new potential director nominees to the board of directors for consideration and reviewing our corporate governance policies.

 

Code of Ethics

 

Effective upon consummation of this offering, we will adopt a code of ethics that applies to all of our executive officers, directors and employees in accordance with the rules of the Nasdaq and the SEC. The code of ethics codifies the business and ethical principles that govern all aspects of our business. We will file a copy of our Code of Ethics as an exhibit to the registration statement of which this prospectus is a part. You will be able to review these documents by accessing our public filings at the SEC’s website at www.sec.gov.

 

Family Relationship

 

There are no family relationships, or other arrangements or understandings between or among any of the directors, director nominees, executive officers or other person pursuant to which such person was selected to serve as a director or officer, except that Mr. Zhuo Wang, our director, is the son of Gui Ling Guo, a director and Vice Chair Person of the board of directors of MingZhu.

 

Controlled Company

 

Upon completion of this offering, Mr. Jinlong Yang, our founder and chairman of our board of directors, will beneficially own approximately % of the aggregate voting power of our outstanding ordinary shares. As a result, we will be a “controlled company” for purposes of the Nasdaq listing rules. As a controlled company, we are permitted to elect to rely on certain exemptions from the obligation to comply with certain corporate governance requirements, including:

 

the requirement that our director nominees be selected or recommended solely by independent directors; and

 

the requirement that we have a nominating and corporate governance committee and a compensation committee that are composed entirely of independent directors with a written charter addressing the purposes and responsibilities of the committees.

 

Although we do not intend to rely on the controlled company exemptions under the Nasdaq listing rules, we could elect to rely on these exemptions in the future, and if so, you would not have the same protections afforded to shareholders of companies that are subject to all of the corporate governance requirements of Nasdaq.

 

94

 

 

Duties of Directors

 

Under Cayman Islands law, directors and officers owe the following fiduciary duties to act in good faith in what the director or officer believes to be in the best interests of the company as a whole;

 

(ii) duty to exercise powers for the purposes for which those powers were conferred and not for a collateral purpose;

 

(iii) directors should not properly fetter the exercise of future discretion;

 

(iv) duty to exercise powers fairly as between different sections of shareholders;

 

(v) duty not to put themselves in a position in which there is a conflict between their duty to the company and their personal interests; and

 

(vi) duty to exercise independent judgment.

 

In addition to the above, directors also owe a duty of care which is not fiduciary in nature. This duty has been defined as a requirement to act as a reasonably diligent person having both the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to the company and the general knowledge skill and experience which that director has.

 

As set out above, directors have a duty not to put themselves in a position of conflict and this includes a duty not to engage in self-dealing, or to otherwise benefit as a result of their position. However, in some instances what would otherwise be a breach of this duty can be forgiven and/or authorized in advance by the shareholders provided that there is full disclosure by the directors. This can be done by way of permission granted in the memorandum and articles of association or alternatively by shareholder approval at general meetings.

 

Accordingly, as a result of multiple business affiliations, our officers and directors may have similar legal obligations relating to presenting business opportunities meeting the above-listed criteria to multiple entities. In addition, conflicts of interest may arise when our board evaluates a particular business opportunity with respect to the above-listed criteria. We cannot assure you that any of the afore-mentioned conflicts will be resolved in our favor. Furthermore, each of our officers and directors has pre-existing fiduciary obligations to other businesses of which they are officers or directors.

 

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 appointed by and serve at the discretion of our board of directors. 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 appointed or such time as they die, resign or are removed from office by a shareholders’ ordinary resolution. The office of a director will be vacated automatically if, among other things, the director resigns in writing, becomes bankrupt or makes any arrangement or composition with his/her creditors generally or is found to be or becomes of unsound mind.

 

95

 

 

Employment 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 subject to successive, automatic one-year extensions unless either party gives notice of non-extension to the other party at least 30 days prior to the end of the applicable term.

 

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 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 misconduct or a failure to perform agreed duties. In such case, the executive officer will not be entitled to receive payment of any severance benefits or other amounts by reason of the termination, and his right to all other benefits will terminate, except as required by any applicable law. We may also terminate his employment without cause upon 30 days’ advance written notice. In such case of termination by us, we are required to provide the following severance payments and benefits to the executive officer: a cash payment of one month of base salary as of the date of such termination for each year (which is any period longer than six months but no more than one year) and a cash payment of half month of base salary as of the date of such termination for any period of employment no more than six months, provided that the total severance payments shall not exceed twelve months of base salary.

 

The executive officer may terminate his employment at any time with 30 days’ advance written notice if there is any significant change in his duties and responsibilities or a material reduction in his annual salary. In such case, the executive officer will be entitled to receive compensation equivalent to three months of his base salary. In addition, if we or our successor terminates the employment agreements upon a merger, consolidation, or transfer or sale of all or substantially all of our assets with or to any other individual(s) or entity, the executive officer shall be entitled to the following severance payments and benefits upon such termination: (1) a lump sum cash payment equal to three months of base salary at a rate equal to the greater of his annual salary in effect immediately prior to the termination, or his then-current annua1 salary as of the date of such termination; (2) a lump sum cash payment equal to a pro-rated amount of target annual bonus for the year immediately preceding the termination; (3) payment of premiums for continued health benefits under our health plans for three months fo1lowing the termination; and (4) immediate vesting of 100% of the then-unvested portion of any outstanding equity awards held by the executive officer. The employment agreements also contain customary restrictive covenants relating to confidentiality, non-competition and non-solicitation, as well as indemnification of the executive officer against certain liabilities and expenses incurred by him in connection with claims made by reason of him being an officer of our company.

 

Compensation of Directors and Executive Officers 

 

For the fiscal year ended December 31, 2018, we paid an aggregate of RMB 1,196,693 (approximately $181,070) in cash and benefits in-kind granted to or accrued on behalf of all of our directors and members of senior management for their services, in all capacities, and we did not pay any additional compensation to our directors and members of senior management. We have not set aside or accrued any amount to provide pension, retirement or other similar benefits to our executive officers and directors. Our PRC subsidiaries 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. 

 

Equity Compensation Plan Information

 

We have not adopted any equity compensation plan.

 

Outstanding Equity Awards at Fiscal Year-End

 

As of December 31, 2018, we had no outstanding equity awards.

 

96

 

 

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, director nominees and 5% or greater beneficial owners of 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.

  

      Prior to Offering       After Offering  
Name and Address of Beneficial Owner(1)     Amount and Nature of Beneficial Ownership       Approximate Percentage of Outstanding Shares(2)       Amount and Nature of Beneficial Ownership       Approximate Percentage of Outstanding Shares(3)  
5% or Greater Shareholders                                
Alpha Global (BVI) Limited(4)     600       60.0 %               %
Excelsior Investment Limited(5)     140       14.0 %               %
Exquisite Elite Limited (6)     250       25.0 %               %
                                 
Executive Officers, Directors and Director Nominees                                
Jinlong Yang(7)     600       60.0 %               %
Jingwei Zhang     -       -                 %
Zhuo Wang (8)     250       25.0 %               %
Mikael Charette     -       -                 %
Yanhong Xue     -       -                 %
To Wai Suen     -       -                 %
All directors, director nominees and executive officers as a group (6 individuals)     850       85 %               %

 

 

(1) Unless otherwise noted, the business address of each of the following entities or individuals is 27F, Yantian Modern Industry Service Center, No. 3018 Shayan Road, Yantian District, Shenzhen, Guangdong, China 518081.
(2) Applicable percentage of ownership is based on 1,000 ordinary shares outstanding as of the date of this prospectus.
(3) Applicable percentage of ownership is based on               ordinary shares outstanding immediately after the offering.
(4) Jinlong Yang, our Chief Executive Officer and Chairman of our board of directors, is the sole shareholder and director of Alpha Global (BVI) Limited, a limited company formed under the laws of the British Virgin Islands and holds the voting and dispositive power over the ordinary shares held by Alpha Global (BVI) Limited. The address of Alpha Global (BVI) Limited is Ritter House, Wickhams Cay II, PO Box 3170, Road Town, Torla VG1110, British Virgin Islands.
(5) Gui Ling Guo, a director and Vice Chair Person of the board of directors of MingZhu and mother of Zhuo Wang, our director, is the sole shareholder and director of Excelsior Investment Limited, a limited company incorporated under the laws of Hong Kong, and holds the voting and dispositive power over the ordinary shares held by Excelsior Investment Limited. The address of Excelsior Investment Limited is FLAT/RM 6 8/F, K Wah Centre, 191 Java Road North Point, Hong Kong.
(6) Zhuo Wang, our director, is a director and holder of 86% of the outstanding shares of Exquisite Elite Limited, a British Virgin Islands company, and holds the voting and dispositive power over the ordinary shares held by Exquisite Elite Limited. The address of Exquisite Elite Limited is Vistra Corporation Service Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Islands.
(7) Consists of 600 ordinary shares directly held by Alpha Global (BVI) Limited, of which Jinlong Yang, our Chief Executive Officer and Chairman of our board of directors, is the sole shareholder and director. Mr. Yang holds the voting and dispositive power over the ordinary shares held by Alpha Global (BVI) Limited.
(8) Consists of 250 ordinary shares directly held by Exquisite Elite Limited, of which Zhuo Wang, our director, is a director and holder of 86% of its outstanding shares. Mr. Wang holds the voting and dispositive power over the ordinary shares held by Exquisite Elite Limited.

97

 

 

RELATED PARTY TRANSACTIONS

 

Before the completion of this offering, we intend to adopt an audit committee charter, which will require the committee to review all related-party transactions on an ongoing basis and all such transactions be approved by the committee.

 

Set forth below are the related party transactions of our company, which are identified in accordance with the rules prescribed under Form F-1 and Form 20-F and may not be considered as related party transactions under PRC law.

 

Sales to related parties

 

In November 2017, MingZhu disposed some of its own trucks to MingZhu Logistics at a total amount of $557,356 and a net gain of $11,237. The amount of such receivables was fully settled by December 31, 2017.

 

Related party balances

 

The amount due from related parties consists of the following:

 

Related Party   Relationship   Nature   September 30,
2019
    December 31,
2018
    December 31,
2017
 
MingZhu Logistics   Mr. Jinlong Yang’s family member as sole shareholder   Lending with no interests   $ 1,499,107     $ 51,603     $ 177,498  
Excelsior Investment Limited   Shareholder   Advance for tax in relation with share transfer     -       52        
Mr. Jinlong Yang   Chairman and Chief Executive Officer   Lending with no interests     925,444       -       -  
            $ 2,424,551     $ 51,655     $ 177,498  

 

The above balance has been fully collected by the date of this prospectus.

 

The amount due to related parties consists of the following:

 

Related Party   Relationship   Nature   September 30,
2019
    December 31,
2018
    December 31,
2017
 
Fushun Dongxiang Renhe Nongzi Co., Ltd.   Mr. Jinlong Yang’s family member as sole shareholder   Loans with no interests   $     $     $ 494,589  
Exquisite Elite Limited   Shareholder   Advances for payment of professional fee     611,091             722,620  
Mr. Jinlong Yang   Chairman and Chief Executive Officer   Advances for operational purpose     -       193,032       1,458,113  
Mr. Zuojie Dai   Manager of MingZhu Pengcheng   Advances for operational purpose     89,467       -       503,124  
            $ 700,558     $ 193,032     $ 3,178,446  

 

Collateral and Guarantee

 

The collateral and guarantee made by related parties to the Company as of September 30, 2019 consists of the following:

 

Related Parties   Institution Name   Term   Aggregated Principal     Carrying Amount as of
September 30,
2019
 
Guarantee by Mr. Jinlong Yang, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From November 2018 to November, 2020   $ 1,308,996     $ 1,133,232  
Guarantee by Mr. Jinlong Yang and MingZhu Logistics, pledge by a property owned by Mr. Jinlong Yang’s family member for bank borrowings   Bank of China   From March, 2019 to March, 2020     1,119,241       720,414  
Guarantee by Mr. Jinlong Yang and Shenzhen Yangang Mingzhu Logistics Co., Ltd.   The Industrial Bank Co., Ltd.   From April, 2019 to April, 2020     279,810       223,848  
Guarantee by Mr. Jinlong Yang and one of Mr. Jinlong Yang’s family member, pledged by Jinlong Yang and his private fixed deposits of RMB one million.   Zhujiang Rural Bank   From May, 2019 to May, 2020     419,715       419,715  
Guarantee by MingZhu Logistics for capital leases   Chengtai Capital Lease Co., Ltd.   From December, 2017 to December, 2020     541,793       231,430  
Guarantee by Mr. Jinlong Yang, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang   Guangdong Nanyue Bank   From September, 2019 to September 2020     699,526       699,526  
            $ 3,512,161     $ 2,892,705  

98

 

 

The collateral and guarantee made by related parties to the Company as of December 31, 2018 consists of the following:

 

Related Parties   Institution Name   Term   Aggregated Principal     Carrying Amount as of
December 31,
2018
 
Guarantee by Mr. Jinlong Yang, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From November  2018 to November, 2020   $ 1,308,996     $ 1,308,996  
Guarantee by Mr. Jinlong Yang and other family members of Mr. Jinlong Yang, pledge by properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From May, 2018 to June, 2019     727,220       574,504  
Guarantee by Mr. Jinlong Yang and MingZhu Logistics, pledge by a property owned by Mr. Jinlong Yang’s family member for bank borrowings   Bank of China   From March, 2018 to March, 2019     436,332       272,707  
Guarantee by Mr. Jinlong Yang and MingZhu Logistics for bank borrowings   The Industrial Bank Co., Ltd.   From January, 2018 to January, 2019     290,888       145,444  
Guarantee by MingZhu Logistics for capital leases   Chengtai Capital Lease Co., Ltd.   From December, 2017 to December, 2020     541,793       374,518  
Guarantee by Mr. Jinlong Yang, pledge by a property owned by Mr. Jinlong Yang for bank borrowings   China Merchants Bank   From April, 2018 to April, 2019     290,888       221,075  
            $ 3,596,117     $ 2,897,244  

 

The collateral and guarantee made by related parties to the Company as of December 31, 2017 consists of the following:

 

Related Parties   Institution Name   Term   Aggregated Principal     Carrying Amount as of
December 31,
2017
 
Guarantee by Mr. Jinlong Yang and MingZhu Logistics, pledge by a property owned by Mr. Jinlong Yang’s family member for bank borrowings   Bank of China   From December, 2017 to December, 2018   $ 768,486     $ 768,486  
Guarantee by Mr. Jinlong Yang and MingZhu Logistics, pledge by properties owned by Mr. Jinlong Yang for bank borrowings   China Mingsheng Bank   From October, 2017 to October, 2018     1,383,275       1,321,796  
Guarantee by a Mr. Jinlong Yang’s family member for capital leases   Shengzhen Qianhai Huaqiang Xinghe and Finance Lease Development Co., Ltd.   From July, 2016 to July, 2018     733,904       233,215  
Guarantee by Mr. Jinlong Yang, pledge by a property owned by Mr. Jinlong Yang for bank borrowings   China Merchants Bank   From November, 2017 to November, 2018     461,092       447,259  
Guarantee by Mr. Jinlong Yang and other family members of Mr. Jinlong Yang, pledge by properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From February, 2017 to February, 2018     768,486       537,940  
Guarantee by Mr. Jinlong Yang, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From September, 2016 to September, 2018     1,229,577       768,486  
            $ 5,344,820     $ 4,077,182  

 

Employment Agreements

 

See “Management — Employment Agreements.”

 

99

 

 

DESCRIPTION OF SHARE CAPITAL

 

We are a Cayman Islands company and our affairs are governed by our amended and restated memorandum and articles of association and the Companies Law (2018 Revision) of the Cayman Islands, which we refer to as the Companies Law below.

 

As of the date hereof, our authorized share capital is HK$380,000 (approximately $48,651) divided into 380,000,000 ordinary shares with a par value of HK$0.01 (approximately $0.001) per share. As of the date of this prospectus, 1,000 ordinary shares were issued and outstanding and no preferred shares were issued and outstanding. Prior to the consummation of this offering, we plan to effectuate a forward split of our outstanding ordinary shares at a ratio to be determined by our board of directors.

 

We intend to adopt an amended and restated memorandum and articles of association immediately prior to the completion of this offering and will replace our current memorandum and articles of association in its entirety.

 

The following are summaries of material provisions of our proposed post-offering memorandum and articles of association and the Companies Law insofar as they relate to the material terms of our ordinary shares that we expect will become effective upon the completion of this offering.

 

Ordinary Shares

 

General. We are authorized to issue 38,000,000 ordinary shares of par value HK $0.01 (approximately $0.001) each. All of our outstanding ordinary shares are fully paid and non-assessable. Certificates representing the ordinary shares are issued in registered form. Our shareholders, whether or not they are non-residents of the Cayman Islands, may freely hold and transfer their ordinary shares in accordance with the Memorandum and Articles of Association.

 

Dividends. The holders of our ordinary shares are entitled to such dividends as may be declared by our board of directors. Our articles of association provide that our board of directors may declare and pay dividends if justified by our financial position and permitted by law.

 

Voting Rights. In respect of all matters subject to a shareholders’ vote, each ordinary share is entitled to one vote. Voting at any meeting of shareholders is by show of hands unless voting by way of a poll is required by the rules of any stock exchange on which our shares are listed for trading, or a poll is demanded by the chairman of such meeting or one or more shareholders holding not less than 10% of the total voting rights of all shareholders having the right to vote at the meeting. A quorum required for a meeting of shareholders consists of one shareholder who holds at least one-third of our issued voting shares. Shareholders’ meetings may be held annually. Each general meeting, other than an annual general meeting, shall be an extraordinary general meeting. Extraordinary general meetings may be called by a majority of our board of directors or upon a requisition of shareholders holding at the date of deposit of the requisition not less than 40% of the aggregate share capital of our company that carries the right to vote at a general meeting, in which case an advance notice of at least 120 clear days is required for the convening of our annual general meeting and other general meetings by requisition of the shareholders. An ordinary resolution to be passed at a meeting by the shareholders requires the affirmative vote of a simple majority of the votes attaching to the ordinary shares cast at a meeting, while a special resolution requires the affirmative vote of no less than two-thirds of the votes attaching to the ordinary shares cast at a meeting. A special resolution will be required for important matters such as a change of name or making changes to our memorandum and articles of association.

 

Transfer of Ordinary shares. Subject to the restrictions set out below, any of our shareholders may transfer all or any of his or her ordinary shares by an instrument of transfer in the usual or common form or any other form approved by our board of directors. Our board of directors may, in its absolute discretion, decline to register any transfer of any ordinary shares irrespective of whether the shares are fully paid or the Company has no lien over it. If our board of directors refuses to register a transfer, it shall, within two months after the date on which the transfer was lodged, send to each of the transferor and the transferee notice of such refusal. Upon completion of this offering, we intend to waive our right to refuse transfers of any ordinary shares. The registration of transfers may, after compliance with any notice required of the stock exchange on which our shares are listed, be suspended at such times and for such periods as our board of directors may determine, provided, however, that the registration of transfers shall not be suspended for more than 30 days in any year as our board of directors may determine.

 

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 clear days prior to the specified time of payment. The ordinary shares that have been called upon and remain unpaid are subject to forfeiture.

 

Redemption of Ordinary shares. The Companies Law and our memorandum of association permit us to purchase our own shares. In accordance with our articles of association and provided the necessary shareholders or board approval have been obtained, we may issue shares on terms that are subject to redemption, at our option or at the option of the holders of these shares, on such terms and in such manner, provided the requirements under the Companies Law have been satisfied, including out of capital, as may be determined by our board of directors.

 

100

 

 

Inspection of Books and Records. Holders of our ordinary shares have no general right under our articles of association to inspect or obtain copies of our list of shareholders or our corporate records. However, we will provide our shareholders with annual audited financial statements. See “Where You Can Find Additional Information.”

 

Issuance of Additional Shares. Our memorandum of association authorizes our board of directors to issue additional ordinary shares from time to time as our board of directors shall determine, to the extent of available authorized but unissued shares. Our memorandum of association also authorizes our board of directors to establish from time to time one or more series of preference shares and to determine, with respect to any series of preference shares, the terms and rights of that series, including:

 

the designation of the series to be issued;

 

the number of shares of the series;

 

the dividend rights, dividend rates, conversion rights, voting rights; and

 

the rights and terms of redemption and liquidation preferences.

 

Our board of directors may issue preference shares without action by our shareholders to the extent authorized but unissued. Issuance of these shares may dilute the voting power of holders of ordinary shares.

 

Anti-Takeover Provisions. Some provisions of our 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 preference shares in one or more series and to designate the price, rights, preferences, privileges and restrictions of such preference shares without any further vote or action by our shareholders.

  

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 some 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.

 

The Companies Law permits mergers and consolidations between Cayman Islands companies and between Cayman Islands companies and non-Cayman Islands companies. For these purposes, a “merger” means the merging of two or more constituent companies and the vesting of their undertaking, property and liabilities in one of such companies as the surviving company, and a “consolidation” means the combination of two or more constituent companies into a consolidated company and the vesting of the undertaking, property and liabilities of such companies to the consolidated company.

 

In order to effect a merger or consolidation, the directors of each constituent company must approve a written plan of merger or consolidation, which must then be authorized by a special resolution of the shareholders of each constituent company, and such other authorization, if any, as may be specified in such constituent company’s articles of association.

 

The plan of merger or consolidation must be filed with the Registrar of Companies of the Cayman Islands together with a declaration as to the solvency of the consolidated or surviving company, a list of the assets and liabilities of each constituent company and an undertaking that a copy of the certificate of merger or consolidation will be given to the members and creditors of each constituent company and that notification of the merger and consolidation will be published in the Cayman Islands Gazette. Dissenting shareholders have the right to be paid the fair value of their shares if they follow the required procedures under the Companies Law subject to certain exceptions. The fair value of the shares will be determined by the Cayman Islands court if it cannot be agreed among the parties. Court approval is not required for a merger or consolidation effected in compliance with these statutory procedures.

 

101

 

 

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;

 

the arrangement is such that an intelligent and honest man of that class acting in respect of his interest would reasonably approve; and

 

the arrangement is not one that would more properly be sanctioned under some other provision of the Companies Law.

 

When a take-over offer is made and accepted by holders of not less than 90% of the shares within four months, the offer, or may, within a two-month period conversing on the expiration of such four months 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 unless there is evidence of fraud, bad faith or collusion.

 

If the arrangement and reconstruction is thus approved, the dissenting shareholders would have no rights comparable to appraisal rights, which would otherwise ordinarily be available to dissenting shareholders of United States 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 to sue for a wrong done to us as a company 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 and is therefore incapable of ratification by the shareholders;

 

the act complained of, although not ultra vires, could only be duly effected 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.

 

The Companies 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 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 arising from dishonesty of such directors or officers willful default of fraud.

 

This standard of conduct is generally the same as permitted under the Delaware General Corporation Law for a Delaware corporation. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers or persons controlling us under the foregoing provisions, we have been informed that, in the view of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

102

 

 

Directors’ Fiduciary Duties.

 

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, courts are moving towards an objective standard with regard to the required skill and care and these authorities are likely to be followed in the Cayman Islands.

 

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.

 

Shareholder Action by Written Consent.

 

The Cayman Islands law and our 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.

 

Under the Delaware General Corporation Law, a corporation may eliminate the right of shareholders to act by written consent by an amendment to its certificate of incorporation.

 

Shareholder Proposals.

 

The Companies Law provides shareholders with only limited rights to requisition a general meeting and does not provide shareholders with any right to put any proposal before a general meeting. However, these rights may be provided in articles of association. Our articles of association allow our shareholders holding not less than 40% of all voting power of our share capital in issue to requisition a shareholder’s meeting. Other than this right to requisition a shareholders’ meeting, our articles of association do not provide our shareholders other right to put proposal before a meeting. As an exempted Cayman Islands company, we are not obliged by law to call shareholders’ annual general meetings.

 

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 and rules promulgated by the SEC. 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.

 

Cumulative Voting.

 

There are no prohibitions in relation to cumulative voting under the Companies Law, but our articles of association do not provide for 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.

 

Removal of Directors.

 

Under our memorandum and articles of association, directors may be removed with or without cause, by an ordinary resolution of our shareholders.

 

Under the Delaware General Corporation Law, a director of a corporation with a may be removed with the approval of a majority of the outstanding shares entitled to vote.

 

103

 

 

Transactions with Interested Shareholders.

 

The Companies 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 for a proper corporate purpose and not with the effect of constituting a fraud on the minority 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.

 

Dissolution; Winding up.

 

Under the Companies 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 articles of association, our company may be dissolved, liquidated or wound up by a special resolution of our shareholders.

 

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.

 

Variation of Rights of Shares.

 

Under the Companies Law and our 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 two-thirds of the issued shares of that class or with the sanction of a special resolution passed at a separate general meeting of the holders of the shares of that class.

 

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.

 

Amendment of Governing Documents.

 

As permitted by the Companies Law, our memorandum and articles of association may only be amended with a special resolution of our shareholders.

 

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.

 

Rights of Non-resident or Foreign Shareholders.

 

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

 

Listing

 

We have applied to have our ordinary shares listed on the Nasdaq Capital Market under the symbol “YGMZ” We cannot guarantee that we will be successful in listing our ordinary shares on the Nasdaq Capital Market; however, we will not complete this offering unless we are so listed.

 

Transfer Agent and Registrar

 

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.

 

104

 

 

SHARES ELIGIBLE FOR FUTURE SALE

 

Upon completion of this offering, we will have                         ordinary shares outstanding, assuming the underwriters do not exercise their over-allotment option to purchase additional ordinary shares. All of the ordinary shares sold in this offering will be freely transferable by persons other than by our “affiliates” without restriction or further registration under the Securities Act. Sales of substantial amounts of our ordinary shares in the public market could adversely affect prevailing market prices of our ordinary shares. Prior to this offering, there has been no public market for our ordinary shares. We have applied to list our ordinary shares on the Nasdaq Capital Market, but we cannot assure you that a regular trading market will develop. We cannot guarantee that we will be successful in listing our ordinary shares on the Nasdaq Capital Market; however, we will not complete this offering unless we are so listed.

 

Lock-up Agreements

 

Each of our directors, executive officers and shareholders of 5% or more of our ordinary shares have also entered into a similar lock-up agreement for a period of 12 months from the date of this prospectus, subject to certain exceptions, with respect to our ordinary shares and securities that are substantially similar to our ordinary shares. These parties collectively own all of our outstanding ordinary shares, without giving effect to this offering.

 

Other than this offering, we are not aware of any plans by any significant shareholders to dispose of significant numbers of our ordinary shares. However, one or more existing shareholders or owners of securities convertible or exchangeable into or exercisable for our ordinary shares may dispose of significant numbers of our ordinary shares in the future. We cannot predict what effect, if any, future sales of our ordinary shares, or the availability of ordinary shares for future sale, will have on the trading price of our ordinary shares from time to time. Sales of substantial amounts of our ordinary shares in the public market, or the perception that these sales could occur, could adversely affect the trading price of our ordinary shares.

 

Rule 144

 

All of our ordinary shares that will be outstanding upon the completion of this offering, other than those Class A ordinary shares sold in this offering, are “restricted securities” as that term is defined in Rule 144 under the Securities Act and may be sold publicly in the United States only if they are subject to an effective registration statement under the Securities Act or pursuant to an exemption from the registration requirement such as those provided by Rule 144 and Rule 701 promulgated under the Securities Act. In general, beginning 90 days after the date of this prospectus, a person (or persons whose shares are aggregated) who at the time of a sale is not, and has not been during the three months preceding the sale, an affiliate of ours and has beneficially owned our restricted securities for at least six months will be entitled to sell the restricted securities without registration under the Securities Act, subject only to the availability of current public information about us, and will be entitled to sell restricted securities beneficially owned for at least one year without restriction. Persons who are our affiliates and have beneficially owned our restricted securities for at least six months may sell a number of restricted securities within any three-month period that does not exceed the greater of the following:

 

1% of the then outstanding ordinary shares which will equal              ordinary shares, assuming the underwriters do not exercise their over-allotment option; or

 

the average weekly trading volume of our ordinary shares during the four calendar weeks preceding the date on which notice of the sale is filed with the SEC. Sales by our affiliates under Rule 144 are also subject to certain requirements relating to the manner of sale, notice and the availability of current public information about us.

 

Rule 701

 

In general, under Rule 701 of the Securities Act as currently in effect, each of our employees, consultants or advisors who purchases our ordinary shares from us in connection with a compensatory share plan or other written agreement executed prior to the completion of this offering is eligible to resell those ordinary shares in reliance on Rule 144, but without compliance with some of the restrictions, including the holding period, contained in Rule 144.

 

105

 

 

TAXATION

 

The following discussion of material Cayman Islands, PRC and United States 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 discussion 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 that the discussion relates to matters of Cayman Islands tax law, it represents the opinion of Ogier, our Cayman Islands counsel. To the extent that the discussion relates to matters of PRC tax law, it represents the opinion of Jingtian & Gongcheng, our PRC counsel. To the extent the discussion relates to the matters of U.S. tax law, it represents the opinion of Ellenoff Grossman & Schole LLP.

 

The following summary contains a description of certain Cayman Islands and U.S. federal income tax consequences of the acquisition, ownership and disposition of ordinary shares, but it does not purport to be a comprehensive description of all the tax considerations that may be relevant to a decision to purchase ordinary shares. The summary is based upon the tax laws of the Cayman Islands and regulations thereunder and on the tax laws of the United States and regulations thereunder as of the date hereof, which are subject to change.

 

Prospective investors should consult their professional advisers on the possible tax consequences of buying, holding or selling any shares under the laws of their country of citizenship, residence or domicile.

 

Cayman Islands Taxation

 

The following is a discussion on certain Cayman Islands income tax consequences of an investment in the Shares. The discussion is a general summary of the present law, which is subject to prospective and retroactive change. It is not intended as tax advice, does not consider any investor’s particular circumstances, and does not consider tax consequences other than those arising under Cayman Islands law.

 

Under Existing Cayman Islands Laws:

 

The Cayman Islands currently levies no taxes in 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 levied by the Government of the Cayman Islands that are likely to be material to holders of ordinary shares 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. There are no exchange control regulations or currency restrictions in the Cayman Islands.

 

Pursuant to Section 6 of the Tax Concessions Law (2018 Revision) of the Cayman Islands, the Company has obtained an undertaking from the Financial Secretary of the Cayman Islands:

 

(a) that no Law which is hereafter enacted in the Islands imposing any tax to be levied on profits, income, gains or appreciations shall apply to us or our operations; and

 

(b) in addition, that no tax to be levied on profits, income, gains or appreciations or which is in the nature of estate duty or inheritance tax shall be payable:

 

(i) on or in respect of the shares, debentures or other obligations of our company; or

 

(ii) by way of the withholding in whole or part, of any relevant payment as defined in Section 6(3) of the Tax Concessions Law (2018 Revision).

 

These concessions shall be for a period of 20 years from March 22, 2018.

 

People’s Republic of China Taxation

 

Under the Enterprise Income Tax 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.

 

106

 

 

In addition, State Administration of Taxation (SAT) Circular 82, which was issued in April 2009 and partially abolished on December 29, 2017, specifies that certain offshore-incorporated enterprises controlled by PRC enterprises or PRC enterprise groups will be classified as non-domestically-registered 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 Announcement of the State Administration of Taxation on Printing and Distributing the Administrative Measures for Income Tax on Chinese-controlled Resident Enterprises Incorporated Overseas (Trial Implementation) (the “SAT Bulletin 45”) on July 27, 2011, which took effect on September 1, 2011 and was amended on April 17, 2015, 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 Mingzhu Logistics Holdings Limited (Cayman Islands) is a PRC resident enterprise for PRC enterprise income tax purposes, a number of unfavorable PRC tax consequences could follow. For example, Mingzhu Logistics Holdings Limited (Cayman Islands) 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 Related to Doing Business in China — If we are classified as a PRC resident enterprise for PRC enterprise income tax purposes, such classification could result in unfavorable tax consequences to us and our non-PRC shareholders.”

 

The SAT and the Ministry of Finance issued the Notice of Ministry of Finance and State Administration of Taxation on Several Issues relating to Treatment of Corporate Income Tax Pertaining to Restructured Business Operations of Enterprises (the “SAT Circular 59”) in April 2009, which became effective on January 1, 2008 and was amended on December 25, 2014 and became effective from January 1, 2014. On October 17, 2017, the SAT issued the Announcement of the State Administration of Taxation on Issues Relating to Withholding at Source of Income Tax of Non-resident Enterprises, which became effective on December 1, 2017 and was amended on June 15, 2018 (the “SAT Circular 37”). By promulgating and implementing the SAT Circular 59 and the SAT Circular 37, the PRC tax authorities have enhanced their scrutiny over the direct or indirect transfer of equity interests in a PRC resident enterprise by a non-PRC resident enterprise.

 

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 Circular of the State Administration of Taxation on the Issues concerning the Application of the Dividend Clauses of Tax Agreements (“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, pursuant to the Announcement of the State Administration of Taxation on Promulgation of the “Administrative Measures on Entitlement of Non-residents to Treatment under Tax Treaties” (“Circular 60”), non-resident taxpayers which satisfy the criteria for entitlement to tax treaty benefits may, at the time of tax declaration or withholding declaration through a withholding agent, enjoy the tax treaty benefits, and be subject to follow-up administration by the tax authorities. There are also other conditions to qualify for such a reduced withholding tax rate according to other relevant tax rules and regulations. Accordingly, YGMZ (Hong Kong) Limited 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.

 

107

 

 

Material United States Federal Income Tax Considerations

 

The following is a discussion of certain material 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 on 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 (or other entities treated as partnerships for United States federal income tax purposes) and their partners, tax-exempt organizations (including private foundations)), investors who are not U.S. Holders, investors that own (directly, indirectly, or constructively) 5% or more of our voting shares, 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 on unearned income. 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.

 

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 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 U.S. federal income tax law 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, distributions of cash or other property 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. 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.

 

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.

 

108

 

 

Passive Foreign Investment Company

 

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 shares. 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 current taxable year or for any subsequent taxable year, more than 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, we will continue to be treated as 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.

 

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.

 

109

 

 

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 the first taxable year during 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 IRS 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.

 

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 IRS 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 IRS 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 IRS 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 IRS 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 completed IRS Form 8938, Statement of Specified Foreign Financial Assets, with their tax return for each year in which they hold ordinary shares.

 

110

 

 

UNDERWRITING

 

Under the terms and subject to the conditions of an underwriting agreement dated the date of this prospectus, the underwriters named below, for whom ViewTrade Securities, Inc. is acting as the representative and sole book-running manager, have severally agreed to purchase, and we have agreed to sell to them, on a firm commitment basis, 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:

 

Underwriters   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 ordinary shares offered by this prospectus are subject to the approval of certain legal matters by their counsel and to other conditions. The underwriters are obligated to take and pay for all of the ordinary 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’ option to purchase additional shares described below.

 

We have granted to the underwriters an option, exercisable for 45 days from the date of this prospectus, to purchase up to                  additional ordinary shares at the initial public offering price listed on the cover page of this prospectus, less underwriting discounts and commissions. 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 about the same percentage of the additional ordinary shares as the number listed next to the underwriter’s name in the preceding table bears to the total number of ordinary 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 of this prospectus and to selected dealers at the initial public offering price less a selling concession not in excess of $       per share. After this offering, the initial public offering price, concession and reallowance to dealers may be reduced by the representative. No change in those terms will change the amount of proceeds to be received by us as set forth on the cover 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.

 

Commissions and Expenses

 

The underwriting discounts and commissions are equal to       % of the initial public offering price set forth on the cover of this prospectus.

 

The following table shows the per share and total initial public offering price, underwriting discounts and commissions, and proceeds before expenses to us. These amounts are shown assuming both no exercise and full exercise of the underwriters’ option to purchase up to an                      additional ordinary shares.

 

    Per Share     Total Without
Exercise of
Over-allotment
Option
    Total With Full
Exercise of
Over-allotment
Option
 
Initial public offering price   $            $             $            
Underwriting discounts and commissions to be paid by us   $     $     $  
Proceeds, before expenses, to us   $       $     $  

 

111

 

 

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 one percent (1%) of the gross proceeds received by us from the sale of our ordinary shares.

 

We have agreed to reimburse the representative up to a maximum of $175,000 for out-of-pocket accountable expenses (including the legal fees and other disbursements as disclosed below).

 

We paid an expense deposit of $35,000 to the representative, within three days of the execution of the letter of intent between us and the representative, and we are entitled to an additional $35,000 upon receipt of the SEC’s first comments to this prospectus, for the representative’s 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 expenses relating to the offering, including, and up $175,000: (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) all reasonable travel and lodging expenses incurred by the representative or its counsel in connection with visits to, and examinations of, our company; (iii) translation costs for due diligence purpose; (iv) all fees, expenses and disbursements relating to the registration or qualification of such 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 reasonable cost for road show meetings and preparation of a power point presentation. In addition, we have agreed to pay the costs associated with “tombstone” advertisements.

 

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 $        , including a maximum aggregate reimbursement of $175,000 of representative’s accountable expenses.

 

In addition, we 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 the securities without the written consent of the representative. If, prior to the 12 month period following the effective date of our letter of intent with the representative, we (i) do not complete this offering 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 (ii) 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, we will be liable to the representative for the accountable expenses of $175,000; provided, however, that such fees shall be subject to FINRA Rule 5110(f)(2)(D)(ii) 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.

 

We have applied to have our ordinary shares listed on the Nasdaq Capital Market under the symbol “YGMZ.”

  

Underwriters’ Warrants

 

In addition, we have agreed to issue warrants to the representative of the underwriters to purchase a number of ordinary shares equal to 10% of the total number of ordinary shares sold in this offering. Such warrants shall have an exercise price equal to 115% of the 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 underwriter 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 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 underwriter 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).

 

112

 

 

We will bear all fees and expenses attendant to registering the ordinary shares issuable upon exercise of the warrants, other than underwriting commissions incurred and payable by the holders. The exercise price and number of ordinary shares issuable upon exercise of the 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.

 

Concurrently with the execution and delivery of the underwriting agreement, the Company will set up an escrow account with a third-party escrow agent in the United States and will fund such account with $500,000 from this offering that may be utilized by the underwriters to fund any bona fide indemnification claims of the underwriters arising during a 24 month period following the offering. The escrow account will be interest bearing, and we will be free to invest the assets in securities. All funds that are not subject to an indemnification claim will be returned to us after the applicable period expires. The Company will pay the reasonable fees and expenses of the escrow agent.

 

Lock-Up Agreements

 

Our officers, directors and principal shareholders (5% or more 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.

 

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.

 

Pricing of the Offering

 

Prior to this offering, there has been no public market for our ordinary shares. The initial public offering price of the shares has been negotiated between us and the underwriters. Among the factors considered in determining the initial public offering price of the shares, in addition to the prevailing market conditions, are our historical performance, estimates of our business potential and earnings prospects, an assessment of our management and the consideration of the above factors in relation to market valuation of companies in related businesses.

  

Electronic Offer, Sale and Distribution of Securities

 

A prospectus in electronic format may be made available on the websites maintained by the underwriters or selling group members, if any, participating in this offering and the underwriters may distribute prospectuses 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 these websites is not part of, nor incorporated by reference into, this prospectus or the registration statement of which this prospectus forms a part, has not been approved or endorsed by us or the underwriters, and should not be relied upon by investors.

 

113

 

 

Price Stabilization, Short Positions and Penalty Bids

 

In connection with this offering, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of our ordinary shares. Specifically, the underwriters may sell more shares than they are obligated to purchase under the underwriting agreement, creating a short position. A short sale is covered if the short position is no greater than the number of shares available for purchase by the underwriters under option to purchase additional shares. The underwriters can close out a covered short sale by exercising the option to purchase additional shares or purchasing shares in the open market. In determining the source of shares to close out a covered short sale, the underwriters will consider, among other things, the open market price of shares compared to the price available under the option to purchase additional shares. The underwriters may also sell shares in excess of the option to purchase additional shares, creating a naked short position. The underwriters must close out any naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the shares in the open market after pricing that could adversely affect investors who purchase in the offering.

 

The underwriters may also impose a penalty bid. This occurs when a particular underwriter or dealer repays selling concessions allowed to it for distributing our ordinary shares in this offering because such underwriter repurchases those shares in stabilizing or short covering transactions.

 

Finally, the underwriters may bid for, and purchase, our ordinary shares in market making transactions, including “passive” market making transactions as described below.

 

These activities may stabilize or maintain the market price of our ordinary shares at a price that is higher than the price that might otherwise exist in the absence of these activities. The underwriters are not required to engage in these activities, and may discontinue any of these activities at any time without notice. These transactions may be effected on the Nasdaq Capital Market, in the over-the-counter market, or otherwise.

 

Passive Market Making

 

In connection with this offering, the underwriters may engage in passive market making transactions in our ordinary shares on the Nasdaq Capital Market 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. A passive market maker must display its bid at a price not in excess of the highest independent bid of that security. However, if all independent bids are lowered below the passive market maker’s bid, then that bid must then be lowered when specified purchase limits are exceeded.

 

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. 

 

Other Relationships

 

The underwriters and certain of their affiliates are full service financial institutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory, investment management, investment research, principal investment, hedging, financing and brokerage activities. Some of the underwriters and certain of their affiliates may in the future engage in investment banking and other commercial dealings in the ordinary course of business with us and our affiliates, for which they may in the future receive customary fees, commissions and expenses.

 

In addition, in the ordinary course of their 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 account and for the accounts of their customers. Such investments and securities activities may involve securities and/or instruments of ours or our affiliates. The underwriters and their affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or financial instruments and may hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.

 

114

 

 

Selling Restrictions

 

No action may be taken in any jurisdiction other than the United States that would permit a public offering of the shares or the possession, circulation or distribution of this prospectus in any jurisdiction where action for that purpose is required. Accordingly, 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 securities 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 securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.

 

In addition to the public 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.

 

Notice to Prospective Investors in Hong Kong

 

The ordinary shares have not been offered or sold and will not be offered or sold in Hong Kong, by means of any document, other than (a) to “professional investors” as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules made under that Ordinance; or (b) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer to the public within the meaning of that Ordinance. No advertisement, invitation or document relating to the ordinary shares has been or may be issued or has been or may be in the possession of any person for the purposes of issue, 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 of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to ordinary shares which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the Securities and Futures Ordinance and any rules made under that Ordinance.

 

Notice to Prospective Investors in the People’s Republic of China

 

This prospectus may not be circulated or distributed in the PRC and the ordinary 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.

 

Notice to Prospective Investors in Taiwan

 

The ordinary shares have not been and will not be registered with the Financial Supervisory Commission of Taiwan pursuant to relevant securities laws and regulations and may not be sold, issued or offered within Taiwan through a public offering or in circumstances which constitutes an offer within the meaning of the Securities and Exchange Act of Taiwan that requires a registration or approval of the Financial Supervisory Commission of Taiwan. No person or entity in Taiwan has been authorized to offer, sell, give advice regarding or otherwise intermediate the offering and sale of the ordinary shares in Taiwan.

 

Stamp Taxes

 

If you purchase ordinary shares offered in 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 offering price listed on the cover page of this prospectus.

 

Electronic Distribution

 

In connection with the offering, certain of the underwriters or securities dealers may distribute prospectuses by electronic means, such as e-mail.

 

115

 

 

EXPENSES RELATING TO THIS OFFERING

 

Set forth below is an itemization of the total expenses, excluding underwriting discounts and commissions, that we expect to incur in connection with this offering. With the exception of the SEC registration fee, Nasdaq listing fee and the FINRA filing fee, all amounts are estimates.

 

SEC Registration Fee   $ 1,554.1  
Nasdaq Listing Fee     75,000  
FINRA Filing Fee     *  
Legal Fees and Expenses     *  
Accounting Fees and Expenses     *  
Printing and Engraving Expenses     *  
Transfer Agent Fee     *  
Miscellaneous Expenses     *  
Total   $ *  

 

* To be provided by amendment.

  

LEGAL MATTERS

 

We are being represented by Ellenoff Grossman & Schole LLP with respect to certain legal matters as to United States federal securities and New York State law. The underwriters are being represented by Dickinson Wright PLLC with respect to certain legal matters as to United States federal securities and New York State law. The validity of the ordinary shares offered in this offering will be passed upon for us by Ogier. Certain legal matters as to PRC law will be passed upon for us by Jingtian & Gongcheng and for the underwriters by Deheng Law Firm. Ellenoff Grossman & Schole LLP may rely upon Ogier with respect to matters governed by Cayman Islands law and Jingtian & Gongcheng with respect to matters governed by PRC law.  Dickinson Wright PLLC may rely upon Deheng Law Firm with respect to matters governed by PRC law.

 

EXPERTS

 

The consolidated financial statements of our company as of December 31, 2018 and 2017, and for each of the years in the period then ended included in this prospectus have been so included in reliance on the report of Friedman LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

 

The office of Friedman LLP is located at One Liberty Plaza, 165 Broadway, New York, NY 10006.

 

The section in this prospectus entitled “Our Industry” is based in part upon, and summaries elsewhere in this prospectus attributed to Frost & Sullivan are based upon, information either compiled or produced by Frost & Sullivan and are included in reliance upon the authority of that firm as an expert, although Frost & Sullivan has not independently verified the material provided to it by the outside sources referenced in that section. This information has been included with the consent of Frost & Sullivan and Frost & Sullivan has authorized that portions of the prospectus be attributed to it. The registered business address of Frost & Sullivan is 1018 Tower B, 500 Yunjin Road, Shanghai, China 200232.

 

WHERE YOU CAN FIND ADDITIONAL INFORMATION

 

We have filed a registration statement, including relevant exhibits, with the SEC on Form F-1 under the Securities Act with respect to underlying ordinary shares to be sold in this offering. This prospectus, which constitutes a part of the registration statement on Form F-1, does not contain all of the information contained in the registration statement. You should read our registration statements and their exhibits and schedules for further information with respect to us and our ordinary shares.

 

Immediately upon the effectiveness of the registration statement on Form F-1 to which this prospectus is a part, we will become subject to periodic reporting and other informational requirements of the Exchange Act as applicable to foreign private issuers. Accordingly, we will be required to file reports, including annual reports on Form 20-F, and other information with the SEC. You can read our SEC filings, including the registration statement, over the Internet at the SEC’s website at www.sec.gov. You may also request a copy of these filings, at no cost, by writing to us at 27F, Yantian Modern Industry Service Center, No. 3018 Shayan Road, Yantian District, Shenzhen, Guangdong, China 518081 or call us at +86 755-25209839. We also maintain a website at www.szygmz.com, at which, following the completion of this offering, you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. The information contained in, and that can be accessed through, our website is not incorporated into and is not part of this prospectus.

 

116

 

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

CONSOLIDATED FINANCIAL STATEMENTS

Table of content

 

Consolidated Financial Statements   Page(s)
     
Report of Independent Registered Public Accounting Firm   F-2
Consolidated Balance Sheets as of December 31, 2018 and 2017   F-3
Consolidated Statements of Income and Comprehensive Income for the Years Ended December 31, 2018 and 2017   F-4
Consolidated Statements of Changes in Shareholders’ Equity for the Years Ended December 31, 2018 and 2017   F-5
Consolidated Statements of Cash Flows for the Years Ended December 31, 2018 and 2017   F-6
Notes to the Consolidated Financial Statements   F-7 – F-33

 

Unaudited Interim Condensed Consolidated Financial Statements   Page(s)
     
Unaudited interim condensed consolidated balance sheets as of September 30, 2019 and December 31, 2018   F-34
Unaudited interim condensed consolidated statements of income and comprehensive income for the nine months ended September 2019 and 2018   F-35
Unaudited interim condensed consolidated statements of shareholders’ equity for the nine months ended September 2019 and 2018   F-36
Unaudited interim condensed consolidated statements of cash flows for the nine months ended September 2019 and 2018   F-38
Notes to unaudited interim condensed consolidated financial statements for the nine months ended September 2019 and 2018   F-39 – F-67

 

F-1

 

 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors and
Shareholders of MingZhu Logistics Holdings Limited

 

Opinion on the Financial Statements

 

We have audited the accompanying consolidated balance sheets of MingZhu Logistics Holdings Limited and Subsidiaries (collectively, the “Company”) as of December 31, 2018 and 2017, and the related consolidated statements of income and comprehensive income, changes in shareholders’ equity, and cash flows for each of the years in the two-year period ended December 31, 2018, and the related notes (collectively referred to as the financial statements). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018 and 2017, and the results of its operations and its cash flows for each of the years in the two-year period ended 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 audits. 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 audits 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 audits, 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 audits 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 audits 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 audits provide a reasonable basis for our opinion.

 

/s/ Friedman LLP  
   
We have served as the Company’s auditor since 2019.
   
New York, New York  

August 2, 2019, except for Notes 14 and 15 which are dated September 27, 2019

 

  

F-2

 

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

 

    As of
December 31,
2018
    As of
December 31,
2017
 
    USD     USD  
ASSETS            
CURRENT ASSETS            
Cash   $ 648,103     $ 352,748  
Restricted cash     160,206       -  
Accounts receivable, net     7,392,863       8,169,698  
Operating supplies     4,019       173,515  
Prepayments     1,868,180       1,430,204  
Other receivables     442,872       1,167,717  
Amount due from related parties     51,655       177,498  
Total Current Assets     10,567,898       11,471,380  
                 
PROPERTY AND EQUIPMENT, NET     4,988,774       5,431,913  
                 
OTHER ASSETS                
Deferred tax assets     22,267       26,592  
Deposits     304,612       367,595  
Total other assets     326,879       394,187  
Total assets   $ 15,883,551     $ 17,297,480  
                 
LIABILITIES AND SHAREHOLDERS’ EQUITY                
CURRENT LIABILITIES:                
Short-term bank borrowings   $ 1,213,730     $ 3,075,481  
Accounts payable     845,093       1,709,088  
Other payables and accrued liabilities     956,052       640,121  
Amount due to related parties     193,032       3,178,446  
Tax payable     1,397,508       1,103,857  
Current maturities of long-term bank borrowings     174,533       768,486  
Current portion of capital lease and financing obligations     737,463       1,142,954  
Total current liabilities     5,517,411       11,618,433  
                 
OTHER LIABILITIES                
Long-term bank borrowings     1,134,463       -  
Long-term portion of capital lease and financing obligations     726,646       638,460  
Total other liabilities     1,861,109       638,460  
Total liabilities     7,378,520       12,256,893  
                 
COMMITMENTS AND CONTINGENCIES                
                 
SHAREHOLDERS’ EQUITY                
Ordinary shares: $0.001 par value, 38,000,000 shares authorized, 1,000 shares issued and outstanding as of December 31, 2018 and 2017     1       1  
Share subscription receivables     (837,837 )     (5,497,526 )
Additional paid-in capital     4,115,388       7,745,836  
Statutory reserves     537,874       251,360  
Retained earnings     4,820,640       2,252,267  
Accumulated other comprehensive (loss) income     (131,035 )     288,649  
Total shareholders’ equity     8,505,031       5,040,587  
Total liabilities and shareholders’ equity   $ 15,883,551     $ 17,297,480  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

F-3

 

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME

 

    For the Year Ended
December 31,
 
    2018     2017  
    USD     USD  
REVENUES   $ 27,646,789     $ 20,616,011  
                 
COSTS AND EXPENSES                
Transportation costs     22,399,066       16,806,258  
General and administrative expenses     1,147,101       1,452,369  
Sales and marketing expenses     65,856       39,908  
Total costs and expenses     23,612,023       18,298,535  
                 
INCOME FROM OPERATIONS     4,034,766       2,317,476  
                 
OTHER (EXPENSES) INCOME                
Interest expenses     (355,332 )     (289,967 )
Other expenses     (8,204 )     (186,515 )
Other income     189,685       85,361  
Total other expenses, net     (173,851 )     (391,121 )
                 
INCOME BEFORE INCOME TAXES     3,860,915       1,926,355  
                 
PROVISION FOR INCOME TAXES     1,006,028       688,265  
                 
NET INCOME     2,854,887       1,238,090  
                 
OTHER COMPREHENSIVE INCOME (LOSS)                
Foreign currency translation adjustment     (419,684 )     291,244  
COMPREHENSIVE INCOME   $ 2,435,203     $ 1,529,334  
                 
Weighted average shares used in computation:                
Basic and diluted     1,000       1,000  
                 
EARNINGS PER SHARE - BASIC AND DILUTED   $ 2,854.89     $ 1,238.09  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

F-4

 

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY

 

                Share     Additional     Retained Earnings     Accumulated Other        
    Shares     Amount     Subscription
Receivables
    Paid-in
Capital
    Statutory
Reserve
    Unrestricted     Comprehensive
Income (Loss)
    Total  
          USD     USD     USD     USD     USD     USD     USD  
BALANCE, December 31, 2016     1,000     $ 1     $ (5,497,526 )   $ 8,185,313     $ 133,495     $ 1,132,042     $ (2,595 )   $ 3,950,730  
                                                                 
Capital distribution due to reorganization     -       -       -       (439,477 )     -       -       -       (439,477 )
Net income for the year     -       -       -       -       -       1,238,090       -       1,238,090  
Foreign currency translation adjustment     -       -       -       -       -       -       291,244       291,244  
Appropriation to statutory reserves     -       -       -       -       117,865       (117,865 )          -       -  
                                                                 
BALANCE, December 31, 2017     1,000       1       (5,497,526 )     7,745,836       251,360       2,252,267       288,649       5,040,587  
                                                                 
Capital contribution     -       -       4,659,689       -       -       -       -       4,659,689  
Capital distribution due to reorganization     -       -       -       (3,630,448 )     -       -       -       (3,630,448 )
Net income for the year     -       -       -       -       -       2,854,887       -       2,854,887  
Foreign currency translation adjustment     -       -       -       -       -       -       (419,684 )     (419,684 )
Appropriation to statutory reserves     -       -       -       -       286,514       (286,514 )     -       -  
                                                                 
BALANCE, December 31, 2018     1,000     $ 1     $ (837,837 )   $ 4,115,388     $ 537,874     $ 4,820,640     $ (131,035 )   $ 8,505,031  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

F-5

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

 

    For the Year Ended
December 31,
 
    2018     2017  
    USD     USD  
Cash flows from operating activities:            
Net income   $ 2,854,887     $ 1,238,090  
Adjustments to reconcile net income to net cash provided by operating activities:                
Loss on disposals of equipment     6,803       79,603  
Provision for doubtful accounts     63,601       28,424  
Amortization of deferred financing fees     217,928       103,476  
Depreciation for property and equipment     1,374,737       1,248,411  
Deferred income tax expenses (benefit)     3,013       (25,606 )
Changes in operating assets and liabilities                
Accounts receivable     (72,261 )     (3,163,134 )
Operating supplies     166,637       669,881  
Prepayments     (535,532 )     (490,912 )
Other receivables     247,278       944,343  
Deposits     87,537       (139,091 )
Accounts payable     (803,359 )     443,381  
Other payables and accrued liabilities     (376,775 )     191,868  
Tax payables     564,503       805,192  
Net cash provided by operating activities     3,798,997       1,933,926  
                 
Cash flows from investing activities:                
Purchases of equipment     (108,591 )     (101,348 )
Proceeds from disposal of equipment     92,082       607,803  
Net cash (used in) provided by investing activities     (16,509 )     506,455  
                 
Cash flows from financing activities:                
Proceeds from short-term bank borrowings     1,815,706       3,255,931  
Repayment of short-term bank borrowings     (3,580,723 )     (3,072,415 )
Proceeds from long-term bank borrowings     1,361,779       -  
Repayment of long-term bank borrowings     (756,544 )     (355,192 )
Repayments of obligations under capital leases     (1,178,813 )     (482,774 )
Amounts advanced from related parties     7,304,612       1,085,320  
Repayments to related parties     (8,547,655 )     (2,691,138 )
Capital contribution     3,916,672       -  
Capital distribution     (3,630,448 )     (439,477 )
Net cash used in financing activities     (3,295,414 )     (2,699,745 )
                 
Effect of exchange rate change on cash     (31,513 )     24,744  
                 
Net increase (decrease) in cash and restricted cash     455,561       (234,620 )
                 
Cash and restricted cash at beginning of the year     352,748       587,368  
                 
Cash and restricted cash at end of the year   $ 808,309     $ 352,748  
                 
Supplemental disclosure of cash flow information:                
Interest paid   $ 345,654     $ 285,843  
Income tax paid   $ 633,290     $ 482,707  
                 
Supplemental non-cash investing and financing information:                
Non-cash capital leases to acquire revenue equipment   $ 918,741     $ 542,949  
Capital contribution by offsetting debt   $ 743,017     $ -  
Uncollected receivable from disposal of revenue equipment   $ 304,946     $ 1,068,533  
Amount due to related parties offset by other receivables   $ 408,534     $ -  
Acquisition of revenue equipment offset by accounts receivable   $ 360,434     $ -  
                 
Reconciliation to amounts on consolidated balance sheets:                
Cash   $ 648,103     $ 352,748  
Restricted cash     160,206       -  
Total cash and restricted cash   $ 808,309     $ 352,748  

 

The accompanying notes are an integral part of these consolidated financial statements.

F-6

 

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(In U.S. Dollars, unless stated otherwise)

 

Note 1 – Nature of business and organization

 

Mingzhu Logistics Holdings Limited and its consolidated subsidiaries (collectively referred to as the “Group” or the “Company”) primarily provide trucking and delivery services using its own truckload fleet and subcontractors to meet its customers’ diverse transportation needs across different provinces or within Guangdong and Xinjiang in the People’s Republic of China (the “PRC” or “China”).

 

Mingzhu Logistics Holdings Limited (“MingZhu Cayman”) is a holding company incorporated in the Cayman Islands on January 2, 2018 under the laws of the Cayman Islands. The Company has no substantive operations other than holding all of the outstanding share capital of MingZhu Investment Limited (“MingZhu BVI”) established under the laws of the British Virgin Islands on January 15, 2018. MingZhu BVI is also a holding company holding all of the outstanding equity of YGMZ (Hong Kong) Limited (“MingZhu HK”) which was incorporated in Hong Kong on February 2, 2018.

 

Reorganization

 

A reorganization of the Company’s legal structure was completed on April 13, 2018. The reorganization involved the incorporation of MingZhu Cayman, and its wholly-owned subsidiaries, MingZhu BVI, and MingZhu HK; and the transfer of all equity ownership of Shenzhen Yangang Mingzhu Freight Industry Co., Ltd (“MingZhu”) to MingZhu HK from the former shareholders of MingZhu. In consideration of the transfer, the Company issued 1,000 shares of the Company with par value $0.001 (HKD 0.01) per share to the former shareholders of MingZhu.

 

On April 13, 2018, the former shareholders transferred their 100% ownership interest in MingZhu to MingZhu HK, which is 100% owned by MingZhu Cayman through MingZhu BVI. After the reorganization, MingZhu Cayman owns 100% equity interests of MingZhu BVI, MingZhu HK and MingZhu. The controlling shareholder of MingZhu Cayman is same as of MingZhu prior to the reorganization.

 

MingZhu was incorporated on July 10, 2002 in Shenzhen, Guangdong under the laws of the PRC. Shenzhen Pengcheng Shengshi Logistics Co., Ltd. (“MingZhu Pengcheng”), a company providing trucking services, was incorporated on April 7, 2010 in Shenzhen, Guangdong under the laws of the PRC. Prior to the reorganization, MingZhu and MingZhu Pengcheng were under common control. On November 10, 2017, for the purpose of reorganization so that the business of the Company could be rearranged to be under a common holding company, the entire equity interest of MingZhu Pengcheng was transferred to MingZhu.

 

These two transactions were between entities under common control, and therefore accounted for in a manner similar to the pooling of interest method. Under the pooling-of-interests method, combination between two businesses under common control is accounted for at carrying amounts with retrospective adjustment of prior period financial statements, and the equity accounts of the combining entities are combined and the difference between the consideration paid and the net assets acquired is reflected as an equity transaction (i.e., distribution to parent company). As opposed to the purchase method of accounting, no intangible assets are recognized in the transaction, and no goodwill is recognized as a result of the combination.

 

F-7

 

 

On September 5, 2018, MingZhu HK established its wholly-owned subsidiary, Shenzhen Yangang Mingzhu Supply Chain Management Co., Ltd (“MingZhu Management”), a PRC company. MingZhu Management engages in providing transportation and supply chain management services.

 

Since the Company and its subsidiaries are effectively controlled by the same group of the shareholders before and after the reorganization, they are considered under common control. The above-mentioned transactions were accounted for as a recapitalization. The consolidation of the Company and its subsidiaries has been accounted for at historical cost and prepared on the basis as if the aforementioned transactions had become effective as of the beginning of the first period presented in the consolidated financial statements.

 

Note 2 – Summary of significant accounting policies

 

Basis of presentation

 

The consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”).

 

Principles of consolidation

 

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

 

Subsidiaries are those entities in which the Company, directly or indirectly, controls more than one half of the voting power; or has the power to govern the financial and operating policies, to appoint or remove the majority of the members of the board of directors, or to cast a majority of votes at the meeting of directors.

 

The accompanying consolidated financial statements reflect the activities of the Company and each of the following entities:

 

Name   Background   Ownership

MingZhu Investment Limited
(“MingZhu BVI”)

 

●      A British Virgin Islands company

●      Incorporated on January 15, 2018  

●      A holding company

  100% owned by MingZhu Cayman

YGMZ (Hong Kong) Limited
(“MingZhu HK”)

 

●      A Hong Kong company

●      Incorporated on February 2, 2018

●      A holding company

  100% owned by MingZhu BVI

Shenzhen Yangang Mingzhu Freight Industry Co., Ltd (“MingZhu”)

 

●      A PRC limited liability company

●      Incorporated on July 10, 2002

●      Providing trucking services

  100% owned by MingZhu HK

Shenzhen Yangang Mingzhu Supply Chain Management Co., Ltd (“MingZhu Management”)

 

●      A PRC limited liability company

●      Incorporated on September 5, 2018

●      Transportation and supply chain management services

  100% owned by MingZhu HK

Shenzhen Pengcheng Shengshi Logistics Co., Ltd
(“MingZhu Pengcheng”)

 

●      A PRC limited liability company

●      Incorporated on April 7, 2010

●      Providing trucking services

  100% owned by MingZhu

 

F-8

 

 

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 the useful lives of property and equipment, impairment of long-lived assets, allowance for doubtful accounts, provision for contingent liabilities, revenue recognition, and deferred taxes and uncertain tax position. Actual results could differ from these estimates.

 

Foreign currency translation and transaction

 

The functional currencies of the Company are the local currency of the country in which the subsidiaries operate. The reporting currency of the Company is the United States Dollars (“U.S. dollar”). The results of operations and the consolidated statements of cash flows denominated in foreign currencies are translated at the average rates of exchange during the reporting period. Assets and liabilities denominated in foreign currencies at the balance sheet date are translated at the applicable rates of exchange in effect at that date. The equity denominated in the functional currencies is translated at the historical rates of exchange at the time of capital contributions. Because cash flows are translated based on the average translation rates, amounts related to assets and liabilities reported on the consolidated statements of cash flows will not necessarily agree with changes in the corresponding balances on the consolidated balance sheets. Translation adjustments arising from the use of different exchange rates from period to period are included as a separate component of accumulated other comprehensive income included in consolidated statements of changes in shareholders’ equity. Transaction gains and losses that arise from exchange rate fluctuations on transactions denominated in a currency other than the functional currency in the consolidated statement of income and comprehensive income.

 

The functional currency of MingZhu Cayman and MingZhu BVI is U.S. dollar. The functional currency of the MingZhu HK is the Hong Kong dollar (“HKD”). The Company’s subsidiaries with operations in PRC uses the local currency, Renminbi (“RMB”), as their functional currencies. An entity’s functional currency is the currency of the primary economic environment in which it operates, normally that is the currency of the environment in which the entity primarily generates and expends cash. Management’s judgment is essential to determine the functional currency by assessing various indicators, such as cash flows, sales price and market, expenses, financing and inter-company transactions and arrangements.

 

For the purpose of presenting these financial statements of subsidiaries using RMB as functional currency, the Company’s assets and liabilities are expressed in U.S. dollar at the exchange rate on the balance sheet date, which is 6.8755 and 6.5063 as of December 31, 2018 and 2017, respectively; shareholders’ equity accounts are translated at historical rates, and income and expense items are translated at the average exchange rate during the period, which is 6.6090 and 6.7569 for the years ended December 31, 2018 and 2017, respectively.

 

For the purpose of presenting these financial statements of the subsidiary using HKD as functional currency, the Company’s assets and liabilities are expressed in U.S. dollar at the exchange rate on the balance sheet date, which is 7.8305 and 7.8128 as of December 31, 2018 and 2017, respectively; shareholders’ equity accounts are translated at historical rates, and income and expense items are translated at the average exchange rate during the period, which is 7.8376 and 7.7926 for the years ended December 31, 2018 and 2017, respectively.

 

F-9

 

 

Cash

 

Cash comprises of cash at banks and on hand, which includes deposits with original maturities of three months or less with commercial banks in PRC. As of December 31, 2018 and 2017, the Company did not have any cash equivalents. Cash were held in accounts at financial institutions located in the PRC‚ which is not freely convertible into foreign currencies. In addition, these balances are not covered by insurance. While management believes that these financial institutions are of high credit quality, it also continually monitors their creditworthiness. The Company and its subsidiaries have not experienced any losses in such accounts and do not believe the cash is exposed to any significant risk.

 

Restricted cash

 

In November 2016, the FASB issued ASU No. 2016-18, Statement of Cash Flows (230): Restricted Cash. The amendments in this Update require that a statement of cash flows explain the change during the period in the total of cash, cash equivalents, and amounts generally described as restricted cash or restricted cash equivalents. For public business entities, the amendments in this update are effective for fiscal years beginning after December 15, 2017, and interim periods within those annual periods. Earlier adoption is permitted. The amendments in this Update should be applied using a retrospective transition method to each period presented. On January 1, 2018, the Company adopted this guidance on a retrospective basis and have applied the changes to the consolidated statement of cash flows starting from the year ended December 31, 2016.

 

As of December 31, 2018 and 2017, there was restricted cash balance of $160,206 and $nil. Restricted cash mainly represents cash in bank was frozen by court orders due to two lawsuits. On January 25, 2019 and February 22, 2019, respectively, the frozen cash balance was released when the two lawsuits were all settled.

 

Accounts Receivable and allowance for doubtful accounts

 

Accounts receivables are stated and carried at original invoiced amount. Accounts are considered overdue after 90 days. In establishing the required allowance for doubtful accounts, management considers historical collection experience, aging of the receivables, the economic environment, industry trend analysis, and the credit history and financial conditions of the customers. Management reviews its receivables on a regular basis to determine if the bad debt allowance is adequate and adjusts the allowance when necessary. Delinquent account balances are written-off against allowance for doubtful accounts after all means of collection have been exhausted and that the likelihood of collection is not probable.

 

F-10

 

 

Operating supplies 

 

Operating supplies consist primarily of tires for servicing the Company’s revenue equipment. Operating supplies are recorded at the lower of cost (on a first-in, first-out basis) or net realizable value. Tires purchased as part of revenue equipment are capitalized as part of the cost of the equipment. Replacement tires are charged to expense when placed in service.

 

Prepayments and Deposits

 

Prepayments are cash deposited or advanced to suppliers for purchasing goods or services that have not been received or provided and deposits made to the Company’s customers and landlord. This amount is refundable and bears no interest. Prepayment and deposit are classified as either current or non-current based on the terms of the respective agreements. These advances are unsecured and are reviewed periodically to determine whether their carrying value has become impaired.

 

Other receivables

 

Other receivables primarily include short-term interest-free advances made to third parties, rental receivables and receivables for disposal of equipment. Management regularly reviews the aging of receivables and changes in payment trends and records allowances when management believes collection of amounts due are at risk. Accounts considered uncollectable are written off against allowances after exhaustive efforts at collection are made.

 

Property and equipment, net

 

Property and equipment are stated at cost net of accumulated depreciation and impairment. Depreciation is provided over the estimated useful lives of the assets using the straight-line method from the time the assets are placed in service, after considering the estimated residual value which is 5% of costs. Estimated useful lives are as follows:

 

Classification   Estimated Useful Life
Buildings and improvements   10 years
Computer and office equipment   3-5 years
Revenue equipment*   5 years

 

* Revenue equipment are trucks and trailers only used for providing trucking services.

 

The cost and related accumulated depreciation 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 comprehensive income. Expenditures for maintenance and repairs, which do not materially extend the useful lives of the assets, are charged to earnings 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 to determine whether subsequent events and circumstances warrant revised estimates of useful lives.

 

F-11

 

 

Leases

 

The Company accounts for all significant leases as either operating or capital. At lease inception, if the lease meets any of the following four criteria, the Company will classify it as a capital lease: (a) transfer of ownership to lessee at the end of the lease term, (b) bargain purchase option, (c) lease term is equal to 75% or more of the estimated economic life of the leased property, or (d) the present value of the minimum lease payments is 90% or more of the fair value of the leased asset. Otherwise, the lease will be treated as an operating lease.

 

Impairment of long-lived assets

 

Long-lived assets, including property and equipment 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 assets based on the undiscounted future cash flows the assets are expected to generate and recognize an impairment loss when estimated undiscounted 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 will reduce the carrying amount of the asset to its estimated fair value based on a discounted cash flows approach or, when available and appropriate, to comparable market values. For the years ended December 31, 2018 and 2017, no impairment of long-lived assets was recognized.

 

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 of the fair value hierarchy are as follows:

 

  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 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.

 

Financial instruments included in current assets and current liabilities are reported in the consolidated balance sheets at face value or cost, which 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.

 

Interest rates that are currently available to the Company for issuance of long-term debt and capital lease with similar terms and remaining maturities are used to estimate the fair value of the Company’s long-term debt. The fair value of the Company’s long-term debt approximated the carrying value at December 31, 2018 and 2017, as the weighted average interest rate on these long-term debt approximates the market rate for similar debt.

 

F-12

 

 

Share subscription receivables

 

Share subscription receivable represents unpaid capital contribution from the Company’s shareholders.

 

Claims accruals

 

With respect to cargo loss and auto liability, the Company maintains insurance coverage to protect it from certain business risks. Claims accruals represent the uninsured portion of pending claims including estimates of adverse development of known claims, plus an estimated liability for incurred but not reported claims. Upon settling claims and expenses associated with claims where it has third party coverage, the Company is generally required to initially fund payment to the claimant and seek reimbursement from the insurer.

 

The Company shall be responsible for any loss or damages to the goods entrusted to it or any loss or damage or personal injury happened in the course of the Company’s provision of relevant trucking services. As at the date of this report the Company maintained an adequate insurance coverage in relation to the trucking services to be delivered to its customers and third-party liability. The Company has also maintained sufficient workers’ compensation for its employees.

 

Revenue Recognition

 

The Company elected to adopt Accounting Standards Codification (ASC) Topic 606, Revenue from Contracts with Customers (ASC 606), effective as of January 1, 2017. Accordingly, the consolidated financial statements for the years ended December 31, 2018 and 2017 are presented under ASC 606. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The Company elected the modified retrospective method which required a cumulative adjustment to retained earnings instead of retrospectively adjusting prior periods. The adoption of ASC 606 did not have a material impact on the Company’s consolidated financial statements.

 

Revenues are generated from provision of trucking services. For each trip, The Company has a single performance obligation, to transport its customer’s freight from a specified origin to a specified destination, with the transit period typically being less than three days.

 

The management have determined that revenue recognition over the transit period provides a reasonable estimate of the provision of services to its customers as its obligation is performed over the transit period. For loads picked up during the reporting period, but delivered in a subsequent reporting period, revenue is allocated to each period based on the transit time in each period as a percentage of total transit time.

 

The Company subcontracts certain of its trucking services to external transportation companies, primarily to carry out trucking services for customers with demand of irregular delivery schedules. The Company also engages subcontractors when it is under capacity assuming its master service agreements with customers allow subcontracting. Revenue is generated from the same base of customers. The Company evaluates whether its performance obligation is a promise to transfer services to the customer (as the principal) or to arrange for services to be provided by another party (as the agent) using a control model. The Company’s evaluation determined that it is in control of establishing the transaction price, managing all aspects of the shipments process and taking the risk of loss for delivery, collection, and returns. Based on its evaluation of the control model, the Company determined that all of its major businesses act as the principal rather than the agent within their revenue arrangements and such revenues are reported on a gross basis.

 

F-13

 

 

The Company applies the practical expedient in Topic 606 that permits the Company to not disclose the aggregate amount of transaction price allocated to performance obligations that are unsatisfied as of the end of the period as the Company’s contracts have an expected length of one year or less. The Company also applies the practical expedient in Topic 606 that permits the recognition of incremental costs of obtaining contracts as an expense when incurred if the amortization period of such costs is one year or less. These costs are included in purchased transportation costs.

 

The Company’s performance obligations represent the transaction price allocated to future reporting periods for freight services started but not completed at the reporting date. This includes the unbilled amounts and accrued freight costs for freight shipments in transit. As of December 31, 2018, the Company has $21,596 of unbilled amounts recorded in accounts receivable and $17,497 of accrued freight costs recorded in accounts payable.

 

Disaggregated information of revenues by geographic locations are as follows:

 

    For the year ended
December 31
 
    2018     2017  
Guangdong province   $ 14,426,772     $ 15,514,679  
Xinjiang province     13,220,017       5,101,332  
Total revenues   $ 27,646,789     $ 20,616,011  

 

Transportation costs

 

The transportation costs primarily consist of fuel expenses, highway bridge expenses, insurance expenses, drivers’ wages, maintenance and repairs expenses, subcontractor fees, depreciation expenses and other expenses.

 

Sales and marketing expenses

 

Sales and marketing expenses primarily include advertising costs. Advertising costs are expensed as incurred and amounted to $65,856 and $39,908 for the years ended December 31, 2018 and 2017, respectively.

 

Employee benefit

 

The full-time employees of the Company are entitled to staff welfare benefits including medical care, housing fund, 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 out of the amounts accrued. Total expenses for the plans were $65,470 and $49,314 for the years ended December 31, 2018 and 2017, respectively.

 

F-14

 

 

Value added taxes

 

The Company is subject to value added tax (“VAT”). Revenue from provision of trucking services is generally subject to VAT at the rate of 10% starting in May 2018 or at the rate of 11% in April 2018 and prior. The Company is entitled to a refund for VAT already paid on goods and services purchased. The VAT balance is recorded in tax payables on the consolidated balance sheets. Revenues are presented net of applicable VAT.

 

Income taxes

 

The Company accounts for income taxes in accordance with the laws of the relevant tax authorities. 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. 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 profit 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. 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. No penalties and interest incurred related to underpayment of income tax are classified as income tax expense in the period incurred.

 

Comprehensive income (loss)

 

Comprehensive income (loss) consists of two components, net income (loss) and other comprehensive income (loss). Other comprehensive income (loss) refers to revenue, expenses, gains and losses that under GAAP are recorded as an element of shareholders’ equity but are excluded from net income. Other comprehensive income (loss) consists of a foreign currency translation adjustment resulting from the Company not using the U.S. dollar as its functional currencies.

 

Earnings per share

 

The Company computes earnings per share (“EPS”) in accordance with ASC 260, “Earnings per Share”. ASC 260 requires companies to present basic and diluted EPS. Basic EPS is measured as net income divided by the weighted average ordinary shares outstanding for the period. Diluted EPS presents the dilutive effect on a per share basis of the potential ordinary shares (e.g., convertible securities, options and warrants) as if they had been converted at the beginning of the periods presented, or issuance date, if later. Potential ordinary shares that have an anti-dilutive effect (i.e., those that increase income per share or decrease loss per share) are excluded from the calculation of diluted EPS. For the years ended December 31, 2018 and 2017, there were no dilutive shares.

 

F-15

 

 

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). For foreign invested enterprises and joint ventures in the PRC, annual appropriations should be made to the “reserve fund”. For foreign invested enterprises, the annual appropriation for the “reserve fund” cannot be less than 10% of after-tax profits until the aggregated appropriations reach 50% of the registered capital (as determined under PRC GAAP at each year-end). If the Company has accumulated loss from prior periods, the Company is able to use the current period net income after tax to offset against the accumulate loss.

 

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.

 

Segment Reporting

 

The Company’s chief operating decision maker (“CODM”) has been identified as its CEO, who reviews the consolidated results when making decisions about allocating resources and assessing performance of the Company as a whole and hence, the Company has only one reportable segment. The Company does not distinguish between markets or segments for the purpose of internal reporting. The Company’s long-lived assets are substantially all located in the PRC and all of the Company’s revenues are derived from the PRC.

 

Recent issued Accounting Pronouncements

 

In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842). This update will require the recognition of a right-of-use asset and a corresponding lease liability, initially measured at the present value of the lease payments, for all leases with terms longer than 12 months. For operating leases, the asset and liability will be expensed over the lease term on a straight-line basis, with all cash flows included in the operating section of the statement of cash flows. For finance leases, interest on the lease liability will be recognized separately from the amortization of the right-of-use asset in the statement of comprehensive income and the repayment of the principal portion of the lease liability will be classified as a financing activity while the interest component will be included in the operating section of the statement of cash flows. ASU 2016-02 is effective for interim and annual periods beginning after December 15, 2018 and requires a modified retrospective approach to adoption. 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. In November 2019, the FASB issued ASU No. 2019-10, by which to defer the effective date for all other entities by an additional year. As an emerging growth company, the Company has not early adopted this update and it will become effective on January 1, 2021. The Company is currently evaluating the impact of the adoption of ASU 2016-02 on its consolidated financial statements and related disclosures.

 

F-16

 

 

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 Company does not expect this standard to have a material impact on its consolidated financial statements.

 

In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments-Credit Losses (Topic 326), which requires entities to measure all expected credit losses for financial assets held at the reporting date based on historical experience, current conditions, and reasonable and supportable forecasts. This replaces the existing incurred loss model and is applicable to the measurement of credit losses on financial assets measured at amortized cost. This guidance is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2019. Early application will be permitted for all entities for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. The Company does not expect this standard to have a material impact on its 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 recharacterize 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 would have a material effect on the Company’s consolidated financial statements.

 

F-17

 

 

In August 2018, the FASB Accounting Standards Board issued ASU No. 2018-13, “Fair Value Measurement (Topic 820): Disclosure Framework Changes to the Disclosure Requirements for Fair Value Measurement” (“ASU 2018-13”). ASU 2018-13 modifies the disclosure requirements on fair value measurements. ASU 2018-13 is effective for public entities for fiscal years beginning after December 15, 2019, with early adoption permitted for any removed or modified disclosures. The removed and modified disclosures will be adopted on a retrospective basis and the new disclosures will be adopted on a prospective basis. The Company does not expect this guidance will have a material impact on its 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 would have a material effect on the Company’s consolidated financial statements.  

 

Except for the above-mentioned pronouncements, there are no new recent issued accounting standards that will have material impact on the consolidated financial position, statements of operations and cash flows.

 

Concentrations of Risks

 

(a) Foreign currency risk

 

A majority of the Company’s expense transactions are denominated in RMB and a significant portion of the Company and its subsidiaries’ assets and liabilities are denominated in RMB. RMB is not freely convertible into foreign currencies. In the PRC, certain foreign exchange transactions are required by law to be transacted only by authorized financial institutions at exchange rates set by the People’s Bank of China (“PBOC”). It is difficult to predict how market forces or PRC or U.S. government policy may impact the exchange rate between the RMB and the U.S. dollar in the future. The change in the value of the RMB relative to the U.S. dollar may affect the Company’s financial results reported in the U.S. dollar terms without giving effect to any underlying changes in the Company’s business or results of operations. Remittances in currencies other than RMB by the Company in China must be processed through the PBOC or other China foreign exchange regulatory bodies which require certain supporting documentation in order to affect the remittance.

 

As a result, the Company is exposed to foreign exchange risk as revenues and results of operations may be affected by fluctuations in the exchange rate between the U.S. dollar and RMB. If the RMB depreciates against the U.S. dollar, the value of RMB revenues, earnings and assets as expressed in U.S. dollar financial statements will decline. The Company has not entered into any hedging transactions in an effort to reduce its exposure to foreign exchange risk.

 

F-18

 

 

(b) Concentration of Credit risk

 

Financial instruments that potentially subject the Company to a significant concentration of credit risk consist primarily of cash and restricted cash. As of December 31, 2018, and 2017, substantially all of the Company’s cash and restricted cash were held by major financial institutions located in the PRC, which management believes are of high credit quality.

 

For the credit risk related to accounts receivable, the Company performs ongoing credit evaluations of its customers. The Company establishes an allowance for doubtful accounts based upon estimates, factors surrounding the credit risk of specific customers and other information. The allowance amounts were immaterial for all periods presented.

 

(c) Customer concentration risk

 

For the year ended December 31, 2018, two customers accounted for 20.4% and 16.3% of the Company’s total revenues. For the year ended December 31, 2017, three customers accounted for 29.2%, 15.4% and 11.0% of the Company’s total revenues. No other customer accounts for more than 10% of the Company’s revenue for the years ended December 31, 2018 and 2017, respectively.

 

As of December 31, 2018, four customers accounted for 26.9%, 13.2%, 13.1% and 10.7% of the total balance of accounts receivable. As of December 31, 2017, three customers accounted for 23.8%, 16.5% and 10.6% of the total balance of accounts receivable. No other customer accounts for more than 10% of the Company’s accounts receivable as of December 31, 2018 and 2017, respectively.

 

(d) Vendor concentration risk

 

For the year ended December 31, 2018, two subcontractors accounted for 84.9% and 14.1% of the Company’s total subcontracting costs. For the year ended December 31, 2017, two subcontractors accounted for 45.8% and 41.6% of the Company’s total subcontracting costs. No other subcontractor accounts for more than 10% of the Company’s total subcontracting costs for the years ended December 31, 2018 and 2017, respectively.

 

As of December 31, 2018, two subcontractors accounted for 67.2% and 32.8% of the total balance of accounts payable. As of December 31, 2017, three subcontractors accounted for 50.8%, 28.3% and 15.8% of the total balance of accounts payable. No other subcontractor accounts for more than 10% of the Company’s accounts payable as of December 31, 2018 and 2017, respectively.

 

Note 3 – Accounts receivable, net

 

Accounts receivable, net consist of the following:

 

    December 31,
2018
    December 31,
2017
 
             
Accounts receivable   $ 7,481,932     $ 8,199,216  
Allowance for doubtful accounts     (89,069 )     (29,518 )
Total accounts receivable, net   $ 7,392,863     $ 8,169,698  

 

F-19

 

 

Movements of allowance for doubtful accounts are as follows:

 

    December 31,
2018
    December 31,
2017
 
             
Beginning balance   $ 29,518     $ -  
Addition     63,601       28,424  
Write off     -       -  
Exchange rate effect     (4,050 )     1,094  
Ending balance   $ 89,069     $ 29,518  

 

Note 4 – Prepayments

 

Prepayments consist of the following:

 

    December 31,
2018
    December 31,
2017
 
Prepayments            
Prepayment - subcontracting*   $ 1,416,114     $ -  
Prepayment - fuel     244,083       497,871  
Prepayment - insurance     137,996       136,979  
Prepayment - parts and others     69,987       795,354  
Total prepayments   $ 1,868,180     $ 1,430,204  

 

* The management seeks to secure and expand its market share in Xinjiang province and the prepayments to subcontractors are able to attract better subcontractors.

 

Note 5 – Other receivables

 

Other receivables consist of the following:

 

    December 31,
2018
    December 31,
2017
 
Other receivables          
Rental receivables   $ 36,334     $ 65,508  
Other receivables, disposal of revenue equipment     89,101       508,518  
Others     317,437       593,691  
Total Other receivables   $ 442,872     $ 1,167,717  

 

Others primarily involve the interest-free advances to third parties. The balance of others as of December 31, 2017 was fully collected during the year of 2018. Approximately $300,000 of others as of December 31, 2018 was collected up to the date hereof and the management believes the remaining balance is immaterial and will be collected by the end of 2019.

 

Note 6 – Property and equipment, net

 

Property and equipment, net consist of the following:

 

    December 31,
2018
    December 31,
2017
 
Property and equipment            
Buildings and improvements   $ 1,101,111     $ 1,163,594  
Computer and office equipment     20,045       35,908  
Revenue equipment     8,473,825       8,592,374  
Subtotal     9,594,981       9,791,876  
Less: accumulated depreciation     (4,606,207 )     (4,359,963 )
Property and equipment, net   $ 4,988,774     $ 5,431,913  

 

F-20

 

 

Revenue equipment under capital leases

 

The Company leased its revenue equipment from third parties with terms of approximately 24 to 36 months and account for as a capital lease. As of December 31, 2018, carrying value and accumulated depreciation of the assets under capital leases recorded by the Company were $1,409,367 and $718,483, respectively. As of December 31, 2017, carrying value and accumulated depreciation of the revenue equipment under capital leases recorded by the Company were $1,068,161 and $1,393,600, respectively. Depreciation expenses for revenue equipment under capital leases were $443,046 and $482,407 for the years ended December 31, 2018 and 2017, respectively.

 

Depreciation expenses for the years ended December 31, 2018 and 2017 was $1,374,737 and $1,248,411, respectively. For the years ended December 31, 2018 and 2017, the Company disposed revenue equipment with cost of $972,606 and $9,742,737 with accumulated depreciation $875,000 and $8,675,525 for proceeds of $90,803 and $987,609 resulting in disposal loss of $6,803 and $79,603, respectively.

 

Note 7 – Other payables and accrued liabilities

 

Other payables and accrued liabilities consist of the following:

 

    December 31,
2018
    December 31,
2017
 
Other payables and accrued liabilities            
Contingent liabilities   $ 199,498     $ 132,972  
Rental deposits     4,848       19,690  
Salary payables     554,094       455,118  
Others     151,797       32,341  
Receipt in advance     45,815       -  
Total Other payables and accrued liabilities   $ 956,052     $ 640,121  

 

Others primarily involve the interest-free borrowings from third parties. Contingent liabilities include expenses accrued due to several lawsuits. (refer to Note 14) As of December 31, 2018, $160,206 of cash was frozen by the local court due to two lawsuits. Upon the date of April 30, 2019, the frozen cash was released as the two lawsuits were all resolved and a total amount of $ 145,909 were paid.

 

F-21

 

 

Note 8 – Credit facilities

 

Short-term bank borrowings

 

Outstanding balances of Short-term bank borrowings as of December 31, 2018 and 2017consisted of the following:

 

Bank name   Term   Interest rate   Collateral/ Guarantee   Date of paid off   December 31,
2018
    December 31,
2017
 
                             
Bank of China*   From March, 2018 to March, 2019   Weighted average rate of 6.53%   Guarantee by Mr. Jinlong Yang and Shenzhen Yangang Mingzhu Logistics Co., Ltd. (“MingZhu Logistics”), a company owned by Mr. Jinlong Yang’s sister, pledge by a property owned by Mr. Jinlong Yang’s family member and collateralized by MingZhu’s receivables   March 11, 2019   $ 272,707     $ -  
China Merchants Bank**   From April, 2018 to April, 2019   Weighted average rate of 6.61%   Guarantee by Mr. Jinlong Yang, pledge by a property owned by Mr. Jinlong Yang   April 10, 2019     221,075       -  
The Industrial Bank Co., Ltd.   From January, 2018 to January, 2019   Weighted average rate of 7.90%   Guarantee by Mr. Jinlong Yang and MingZhu Logistics   January 5, 2019     145,444       -  
Postal Savings Bank of China Co., Ltd.   From May, 2018 to May, 2019   Weighted average rate of 5.44%   Guarantee by third party, Mr. Jinlong Yang and other family members of Mr. Jinlong Yang, pledge by properties owned by family members of Mr. Jinlong Yang   April 20, 2019     574,504       -  
Bank of China*   From December, 2017 to December, 2018   Weighted average rate of 6.53%   Guarantee by Mr. Jinlong Yang and MingZhu Logistics, pledge by a property owned by Mr. Jinlong Yang’s family member and collateralized by MingZhu’s receivables   December 18, 2018     -       768,486  
China Merchants Bank**   From November, 2017 to November, 2018   Weighted average rate of 6.60%   Guarantee by Mr. Jinlong Yang, pledge by a property owned by Mr. Jinlong Yang   November 9, 2018     -       447,259  
China Minsheng Bank Corp., Ltd   From October, 2017 to October 11, 2018   Weighted average rate of 5.66%   Guarantee by Mr. Jinlong Yang and MingZhu Logistics and third party, pledge by properties owned by Mr. Jinlong Yang and other third parties.   September 25, 2018     -       1,321,796  
Postal Savings Bank of China Co., Ltd.   From February, 2017 to February, 2018   Weighted average rate of 5.22%   Guarantee by third party, Mr. Jinlong Yang and other family members of Mr. Jinlong Yang, pledge by properties owned by family members of Mr. Jinlong Yang   February 7, 2018     -       537,940  
Total                   $ 1,213,730     $ 3,075,481  

 

* In December 2017, the Company rolled over into a one-year term line of credit agreement with Bank of China pursuant to which it may borrow up to $ 2,036,216 (RMB 14,000,000). The agreement was renewed in December 2018 for another 12 months. The line of credit agreement entitles the Company to enter into separate loan contracts under such line of credit. The Company utilized $727,220 (RMB 5,000,000) in January 2018 and $436,332 (RMB 3,000,000) in March 2018. For each withdraw from the line of credit, a separate loan was entered into with a one-year term from the credit line withdraw date and we recorded these loans as short-term bank borrowings in the Company’s consolidated financial statements. As of December 31, 2018, the loan of $727,220 (RMB 5,000,000) had been fully paid off and the unutilized line of credit was $1,599,884 (RMB 11,000,000).

  

** In October 2017, The Company entered into a one-year term line of credit agreement with China Merchants Bank pursuant to which we may borrow up to $727,220 (RMB 5,000,000). The line of credit agreement entitles the Company to enter into two separate loan contracts under such line of credit. The Company utilized $461,092 (RMB 3,000,000) in November 2017 and $290,888 (RMB 2,000,000) in April 2018. For each withdraw from the line of credit, a separate loan was entered into with a one-year term from the credit line withdraw date and we recorded these loans as short-term bank borrowings in the Company’s consolidated financial statements. As of December 31, 2018, the line of credit agreement expired.

 

Interest expenses incurred from short-term bank borrowings were $211,460 and $128,495 for the years ended December 31, 2018 and 2017.

 

F-22

 

 

Long-term bank borrowings

 

Outstanding balances of long-term bank borrowings as of December 31, 2018 consisted of the following:

 

Bank name   Term   Interest rate   Collateral/ Guarantee   Date of paid off   December 31,
2018
    December 31,
2017
 
                             
Postal Savings Bank of China Co., Ltd.*   From November, 2018 to November, 2020   Weighted average rate of 5.70%   Guarantee by Mr. Jinlong Yang and third party, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang   -   $ 1,308,996     $ -  
Postal Savings Bank of China Co., Ltd.   From September, 2016 to September, 2018   Weighted average rate of 5.70%   Guarantee by Mr. Jinlong Yang and third party, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang   September 12, 2018     -       768,486  
Less: current maturities                     (174,533 )     (768,486 )
Non-current maturities                   $ 1,134,463     $ -  

 

* In October 2018, the Company entered into a five-year term line of credit agreement with Postal Savings Bank of China Co., Ltd pursuant to which the Company may borrow up to $1,308,996 (RMB 9,000,000). The line of credit agreement entitles the Company to enter into separate loan contracts under such line of credit. The Company utilized $1,308,996 (RMB 9,000,000) in November 2018. For such withdraw from the line of credit, a separate loan was entered into with a two-year term from the line of credit withdraw date and the Company recorded this loan as long-term bank borrowings in its consolidated financial statements. As of December 31, 2018, the unutilized line of credit was $0.

 

The maturities schedule of long-term bank borrowings is as follow

 

    As of December 31,
2018
    As of December 31,
2017
 
Payments due by period            
Less than 1 year   $ 174,533     $ 768,486  
1-2 years     1,134,463       -  
Total   $ 1,308,996     $ 768,486  

 

Interest expenses incurred from long-term bank borrowings were $6,468 and $53,872 for the years ended December 31, 2018 and 2017, respectively.

 

Note 9 – Leases

 

The Company leases certain of its revenue equipment under capital lease agreements. The terms of the capital leases expire at various dates through May 2021. The Company has option to purchase the revenue equipment for a nominal amount at the end of the lease term.

 

The Company has capital lease commitments for revenue equipment summarized for the following fiscal years:

 

    Minimum lease payments     Present value of minimum lease payments  
12 months ending December 31,            
2019   $ 829,539     $ 737,463  
2020     622,048       587,723  
2021     141,570       138,923  
Total     1,593,157       1,464,109  
                 
Less: amount representing interest     (129,048 )     -   
                 
Present value of minimum lease payments   $ 1,464,109       1,464,109  
                 
Less: current maturities             (737,463 )
                 
Capital lease obligations, long-term           $ 726,646  

F-23

 

 

The lease term of the Company’s capital lease obligations ranged from two to three years. Interest rates underlying the capital lease obligations ranged from 5.7% to 12.5% per annum and 7.5% to 11.13% per annum for the years ended December 31, 2018 and 2017, respectively.

 

The Company’s pledged revenue equipment under capital lease are as follow:

 

Name of institution   Maturities   Interest rate     Carrying amount of pledged revenue equipment as of
December 31,
2018
    Carrying amount of pledged revenue equipment as of
December 31,
2017
 
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From September 30, 2018 to September 10, 2020     11.1 %   $ 73,328     $ -  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From July 20, 2018 to July 10, 2020     11.1 %     34,836       -  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From May 23, 2018 to May 20, 2021     7.6 %     773,065       -  
Shanghai Chengtai Finance Leasing Co., Ltd.   From December 28, 2017 to December 29, 2020     7.5 %     111,403       197,112  
Zhejiang Zhongda Yuantong Finance Leasing Co.,Ltd.   From October 12, 2017 to October 20, 2019     9.9 %     73,403       96,897  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From May 10, 2017 to June 20, 2020     10.5 %     72,884       98,435  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From April 1, 2017 to April 20, 2019     10.5 %     131,437       178,431  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From February 27, 2017 to March 20, 2020     10.5 %     139,012       189,731  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From November 30, 2016 to December 20, 2018     10.5 %     -       165,252  
Shenzhen Qianhai Huaqiang Xinghe Finance Lease Development Co., Ltd.   From July 15, 2016 to July 28, 2018     12.5 %     -       142,305  
Total               $ 1,409,368     $ 1,068,163  

 

The Company’s capital lease obligations are secured by the lessor’s title to the leased assets. As of December 31, 2018, certain of the Company’s obligation under finance lease was secured by corporate guarantees given by MingZhu Logistics.

 

The Company entered into a lease for office space located in Shenzhen, Guangdong, China for the period from November 21, 2018 to November 20, 2023, with a rent-free period from November 21, 2018 to November 20, 2019.

 

F-24

 

 

The total future minimum lease payments under the non-cancellable operating lease with respect to the office December 31, 2018 are payable as follows:

 

12 months ending December 31,      
2019   $ 413,339  
2020     107,624  
2021     106,471  
2022     104,166  
2023     95,486  
Future minimum operating lease payments   $ 827,086  

 

Rental expense of the Company for the years ended December 31, 2018 and 2017 were $38,350 and $29,279, respectively.

 

Note 10 – Related party balances and transactions

 

Sales to related parties

 

In November 2017, MingZhu disposed some of its own trucks to MingZhu Logistics at a total amount of $557,356 and a net gain of $11,237. The amount of such receivables was fully settled by December 31, 2017.

 

Related party balances

 

The amount due from related parties consists of the following:

 

RP Name   Relationship   Nature   December 31, 2018     December 31, 2017  
MingZhu Logistics   Mr. Jinlong Yang’s family member as sole shareholder   Lending with no interests   $ 51,603     $ 177,498  
Excelsior Investment Limited   Shareholder   Advance for tax in relation with share transfer     52       -  
            $ 51,655     $ 177,498  

 

The Company has collected all amount due from related parties in January 2019.

 

The amount due to related parties consists of the following:

 

RP Name   Relationship   Nature   December 31, 2018     December 31, 2017  
Fushun Dongxiang Renhe Nongzi Co., Ltd.   Mr. Jinlong Yang’s family member as sole shareholder   Loans with no interests   $ -     $ 494,589  
Exquisite Elite Limited   Shareholder   Advances for payment of professional fee     -       722,620  
Mr. Jinlong Yang   Chairman and Chief Executive Officer   Advances for operational purpose     193,032       1,458,113  
Mr. Zuojie Dai   Manager of MingZhu Pengcheng   Advances for operational purpose     -       503,124  
            $ 193,032     $ 3,178,446  

 

F-25

 

 

Collateral and Guarantee

 

The collateral and guarantee made by related parties to the Company as of December 31, 2018 consists of the following:

 

Related Parties   Institution Name   Term   Aggregated Principal     Carrying Amount as of December 31,
2018
 
Guarantee by Mr. Jinlong Yang, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From November  2018 to November, 2020   $ 1,308,996     $ 1,308,996  
Guarantee by Mr. Jinlong Yang and other family members of Mr. Jinlong Yang, pledge by properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From May, 2018 to June, 2019     727,220       574,504  
Guarantee by Mr. Jinlong Yang and MingZhu Logistics, pledge by a property owned by Mr. Jinlong Yang’s family member for bank borrowings   Bank of China   From March, 2018 to March, 2019     436,332       272,707  
Guarantee by Mr. Jinlong Yang and MingZhu Logistics for bank borrowings   The Industrial Bank Co., Ltd.   From January, 2018 to January, 2019     290,888       145,444  
Guarantee by MingZhu Logistics for capital leases   Chengtai Capital Lease Co., Ltd.   From December, 2017 to December, 2020     541,793       374,518  
Guarantee by Mr. Jinlong Yang, pledge by a property owned by Mr. Jinlong Yang for bank borrowings   China Merchants Bank   From April, 2018 to April, 2019     290,888       221,075  
            $ 3,596,117     $ 2,897,244  

 

The collateral and guarantee made by related parties to the Company as of December 31, 2017 consists of the following:

 

Related Parties   Institution Name   Term   Aggregated Principal     Carrying Amount as of December 31,
2017
 
Guarantee by Mr. Jinlong Yang and MingZhu Logistics, pledge by a property owned by Mr. Jinlong Yang’s family member for bank borrowings   Bank of China   From December, 2017 to December, 2018   $ 768,486     $ 768,486  
Guarantee by Mr. Jinlong Yang and MingZhu Logistics, pledge by properties owned by Mr. Jinlong Yang for bank borrowings   China Mingsheng Bank   From October, 2017 to October, 2018     1,383,275       1,321,796  
Guarantee by a Mr. Jinlong Yang’s family member for capital leases   Shengzhen Qianhai Huaqiang Xinghe and Finance Lease Development Co., Ltd.   From July, 2016 to July, 2018     733,904       233,215  
Guarantee by Mr. Jinlong Yang, pledge by a property owned by Mr. Jinlong Yang for bank borrowings   China Merchants Bank   From November, 2017 to November, 2018     461,092       447,259  
Guarantee by Mr. Jinlong Yang and other family members of Mr. Jinlong Yang, pledge by properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From February, 2017 to February, 2018     768,486       537,940  
Guarantee by Mr. Jinlong Yang, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From September, 2016 to September, 2018     1,229,577       768,486  
            $ 5,344,820     $ 4,077,182  

 

F-26

 

 

Note 11 – Employee benefits government plan

 

The Company participates in a government-mandated multi-employer defined contribution plan pursuant to which certain retirement, medical and other welfare benefits are provided to employees. PRC labor regulations require the Company to pay to the local labor bureau a monthly contribution calculated at a stated contribution rate based on the basic monthly compensation of qualified employees. The relevant local labor bureau is responsible for meeting all retirement benefit obligations; the Company has no further commitments beyond its monthly contribution.

 

Note 12 – Income taxes

 

Cayman Islands

 

The Company was incorporated in the Cayman Islands and is not subject to tax on income or capital gains under the laws of Cayman Islands. Additionally, the Cayman Islands does not impose a withholding tax on payments of dividends to shareholders.

 

British Virgin Islands

 

MingZhu BVI is incorporated in the British Virgin Islands and is not subject to tax on income or capital gains under current British Virgin Islands law. In addition, upon payments of dividends by these entities to their shareholders, no British Virgin Islands withholding tax will be imposed.

 

Hong Kong

 

MingZhu HK is incorporated in Hong Kong and is subject to Hong Kong Profits Tax on the taxable income as reported in its statutory financial statements adjusted in accordance with relevant Hong Kong tax laws. The applicable tax rate is 16.5% in Hong Kong. The Company did not make any provisions for Hong Kong profit tax as there were no assessable profits derived from or earned in Hong Kong since inception. Under Hong Kong tax law, MingZhu HK is exempted from income tax on its foreign-derived income and there are no withholding taxes in Hong Kong on remittance of dividends.

 

PRC

 

The Company PRC subsidiaries are governed by the income tax laws of the PRC and the income tax provision 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”), Chinese enterprises are subject to income tax at a rate of 25% after appropriate tax adjustments.

 

The Ministry of Finance (“MOF”) and State Administration of Taxation (“SAT”) on July 11, 2017 jointly issued Cai Shui 2018 No. 77. This clarified that from January 1, 2018 to December 31, 2020, eligible small enterprises whose taxable income falls under RMB1,000,000 (previously RMB 500,000), may pay CIT on 50% of their whole income at a rate of 20% (i.e., effective rate is 10%). For the year ended December 31, 2018, MingZhu Pengcheng was eligible to employ this policy.

 

Significant components of the income tax expense consisted of the following for the years ended December 31,

 

    2018     2017  
Current income tax expense   $ 1,003,014     $ 713,870  
Deferred income tax expense (benefit)     3,014       (25,605 )
Total   $ 1,006,028     $ 688,265  

 

F-27

 

 

The tax effects of temporary difference that give rise to the deferred tax assets as of December 31, 2018 and December 31, 2017 are $22,267 and $26,592, respectively. Deferred tax assets consist of as follow

 

    As of December 31,
2018
    As of December 31,
2017
 
Deferred tax assets:            
Allowance for doubtful accounts   $ 22,267     $ 7,380  
Contingent liabilities     -       19,212  
Net operating loss carryforwards:                
PRC     2,179       -  
      24,446       26,592  
Less valuation allowance     (2,179 )     -  
Total deferred tax assets   $ 22,267     $ 26,592  

 

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 MingZhu Management’s cumulative net operating loss (“NOL”) of approximately $8,500 as of December 31, 2018 which will expire in 2023. Management considers projected future losses outweighs other factors and made a full allowance of related deferred tax assets.

 

Reconciliation of effective income tax rate is as follows for the years ended December 31:

 

    December 31,
2018
    December 31,
2017
 
PRC statutory tax rate     25 %     25 %
Effect of tax exemption granted to MingZhu Pengcheng     -0.3 %     0.0 %
Valuation allowance deferred tax     0.1 %     0.0 %
Non-deductible items*     1.3 %     10.7 %
Effective tax rate     26.1 %     35.7 %

 

* Non-deductible items mainly arise from expenses not deductible for tax purposes primarily including professional fees in relation to capital market planning, amortization expenses of buildings and improvements.

 

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 and 2017, the Company did not have any significant unrecognized uncertain tax positions. The Company did not incur any interest or penalties tax for the years ended December 31, 2018 and 2017. The Company does not anticipate any significant increases or decreases in unrecognized tax benefits in the next twelve months from December 31, 2018.

 

Value added tax

 

All of the Company’s service revenues that are earned and received in the PRC are subject to a Chinese VAT at a rate of 11% prior to May 2018 or 10% starting in May 2018 of the gross proceed or at a rate approved by the Chinese local government.

 

Taxes payable consisted of the following: 

 

    December 31,
2018
    December 31,
2017
 
VAT taxes payable   $ 434,401     $ 436,937  
Income taxes payable     938,971       616,693  
Other taxes payable     24,136       50,227  
Total   $ 1,397,508     $ 1,103,857  

 

F-28

 

 

Note 13 – Shareholders’ equity

 

Ordinary shares

 

MingZhu Cayman was established under the laws of Cayman Islands on January 2, 2018. The authorized number of ordinary shares is 38,000,000 shares with a par value of approximate $0.001 (HKD 0.01) per ordinary share.

 

Share subscription receivables

 

Share subscription receivables represent unpaid capital contribution from the Company’s shareholders of $837,837 and $5,497,526 as of December 31, 2018 and 2017, respectively.

 

Statutory reserves

 

In accordance with the relevant PRC laws and regulations, the Group’s subsidiaries in the PRC are required to provide for certain statutory reserves, which are appropriated from net profit as reported in accordance with PRC accounting standards. The Group’s subsidiaries in the PRC are required to allocate at least 10% of their after-tax profits to the general reserve until such reserve has reached 50% of their respective registered capital. Appropriations to other types of reserves in accordance with relevant PRC laws and regulations are to be made at the discretion of the board of directors of each of the Group’s subsidiaries in the PRC. The statutory reserves are restricted from being distributed as dividends under PRC laws and regulations. The statutory reserves recorded by the Group’s subsidiaries in the PRC were $537,874 and $251,360 as of December 31, 2018 and 2017, respectively.

 

Restricted assets

 

As a result of these PRC laws and regulations and the requirement that distributions by the Group’s subsidiaries in the PRC can only be paid out of distributable profits reported in accordance with PRC accounting standards, the Group’s subsidiaries in the PRC are restricted from transferring a portion of their net assets to the Company. The restricted amounts include the paid-in capital and the statutory reserves of the Group’s subsidiaries in the PRC. The aggregate amount of paid-in capital and statutory reserves, which represented the amount of net assets of the Group’s subsidiaries in the PRC not available for distribution, was $3,225,661 and $2,939,147 as of December 31, 2018 and 2017, respectively.

 

Capital contributions

 

During the year ended December 31, 2018, the Company’s shareholders contributed $3,916,672 via cash and $743,017 via debt settlement. For the year ended December 31, 2017 shareholders contributed $0 to the Company.

 

Capital distribution

 

On March 29, 2018, 100% equity interests of MingZhu transferred to MingZhu HK. On the date of transaction, the Company distributed $3,630,448 to shareholders as a consideration of transferring MingZhu’s 100% equity interests from Mr. Jinlong Yang to MingZhu HK.

 

On November10, 2017, 100% equity interests of MingZhu Pengcheng transferred to MingZhu. The Company distributed $439,477 to shareholders as a consideration of transferring MingZhu Pengcheng’s 100% equity interests from Mr. Jinlong Yang to MingZhu.

 

Note 14 – Commitments and Contingencies

 

Guarantee Commitments

 

In November 2017, the MingZhu entered into guarantee agreements for a capital lease of $2,531,453 to a subcontractor. The guarantee period was from November 2017 to January 2022. In November 2017, the MingZhu entered into a guarantee agreement in which MingZhu Logistics, a related party, guaranteed for the above-mentioned capital lease.

 

Lease Commitments

 

The Company entered into a lease for office space located in Shenzhen, Guangdong, China for the period from November 21, 2018 to November 20, 2023. The Company’s commitments for minimum lease payment under these operating leases as of December 31, 2018 are listed in section “Note 9 – Leases”.

 

Contingencies

 

From time to time, the Company is party to certain legal proceedings, as well as certain asserted and unasserted claims.

 

F-29

 

 

On September 4, 2018, the Company received a notice from Shenzhen Arbitration Committee for Labor Disputes, which ruled that MingZhu was required to pay for worker compensation to Qing Tan, Xiangyang, Haiyang Shi, and Hanxiao Shi in the amount of $65,223 (RMB 448,440). The Company accrued contingent liabilities of $72,722 (RMB 500,000) and $76,849 (RMB 500,000) based on the available information and the management’s best estimates as of December 31, 2018 and 2017, respectively. According to the enforcement order issued by the Shenzhen Yantian People’s Court on June 14, 2019, $74,961 (RMB 510,272) from the Company’s bank account was enforced by the court. Such amount includes the damages and other charges resulting from delayed performance. As of the date hereof, the Company has performed all the obligations under the arbitration award. The Company has filed an enforcement dissidence with the Shenzhen Yantian People’s Court. The case is currently pending before the Yantian People’s Court.

 

A contract dispute exists between MingZhu, MingZhu Pengcheng and Shengxin Wang. According to the Civil Judgement issued by the Shenzhen Intermediate People’s Court on August 23, 2018, Shengxin Wang was ordered to pay $3,098 (RMB 21,303) and overdue interests thereof and pay $0.15 (RMB 1) as the consideration of the vehicles to MingZhu Pengcheng and after that, MingZhu Pengcheng and MingZhu should respectively assist to transfer ownership of one tractor and one trailer to Shengxin Wang. According to the Civil Decision of Guangdong Provincial Higher People’s Court issued on December 20, 2018, Shengxin Wang’s application for retrial of the above Civil Judgement was rejected. On March 22, 2019, the Shenzhen Yantian People’s Court issued an Enforcement Order to MingZhu and MingZhu Pengcheng, which ordered MingZhu and MingZhu Pengcheng to perform relevant obligations as required by the foresaid judgement or otherwise the judgement would be enforced by the court. On May 29, 2019, a cash balance equal to Shengxin Wang’s payment obligation was frozen in his bank account and meanwhile, Shengxin Wang took over the tractor from MingZhu Pengcheng. According to the inquiry notes taken by the Yantian People’s Court Enforcement Bureau on May 30, 2019, MingZhu has made preparation for handover of the trailer to Shengxin Wang. As of the date of this prospectus, Shengxin Wang has taken over the trailer, the balance half of the vehicles, from MingZhu, and the case has been concluded.

 

However, regarding the same dispute, Shengxin Wang filed another lawsuit against MingZhu Pengcheng. According to the Civil Indictment filed by Shengxin Wang (the plaintiff) on February 26, 2019, Shengxin Wang requested that MingZhu Pengcheng (the defendant) be ordered to compensate for the stoppage loss of $694,098 (RMB 4,772,269). The nature of the case was a property damage compensation dispute. According to the Notice of Appeal issued by the Shenzhen Yantian People’s Court on March 21, 2019, the court has accepted this case. According to the Civil Judgment issued by the Yantian District People's Court in Shenzhen City, Guangdong Province on August 30, 2019, the court ruled that MingZhu Pengcheng should pay damages in the amount of $29,627 (RMB 203,700 yuan) to Shengxin Wang and rejected Shengxin Wang's other claims. MingZhu Pengcheng submitted an Appeal Petition to the Shenzhen Intermediate People's Court on September 20, 2019, requesting a change in the judgment of first instance and changing the judgment so that MingZhu Pengcheng will not have to pay the damages to Shengxin Wang. MingZhu Pengcheng has paid the case acceptance fee. As the date of this prospectus, the case is pending for appeal court hearing.

 

On August 22, 2019, Sujin Wei (the plaintiff) submitted a Civil Complaint to the Yangjiang Yangdong District People’s Court against China Pacific Property Insurance Co., Ltd. Shenzhen Branch, MingZhu and two other defendants. The complaint requested that China Pacific Property Insurance Co., Ltd. Shenzhen Branch shall make the death and disability compensation to the plaintiff in the amount of $15,999 (RMB 110,000) and compensate the plaintiff of $44,699 (RMB 307,328.02) within the third party liability insurance limit and also requested that defendants Shengming Zheng and MingZhu shall be jointly and severally liable for the foregoing claims, and the litigation fee in this case shall be borne by the four defendants. According to the response notice issued by the Yangjiang Yangdong District People’s Court on the September 18, 2019, this case has been filed on September 4, 2019. As of the date of the prospectus, the case has not yet been heard by the court.

 

In accordance with ASC No. 450-20, “Loss Contingencies”, the Company will record accruals for above loss contingencies when it is probable that a liability has been incurred and the amount of loss can be reasonably estimated. There are no other material loss contingencies than above-mentioned ones for the years ended December 31, 2017 and 2018.

 

Note 15 – Subsequent events

 

The Company entered various loan agreements with banks after December 31, 2018:

 

In January 2019, the Company obtained a bank borrowing which is approximately $ 0.9 million (RMB 6.1 million) from Bank of China with an annual interest rate of 7.2% to be due in January 2020. This bank borrowing is guaranteed by MingZhu Logistics. A Mr. Jinlong Yang’s family member pledged for this bank borrowing.

 

In March 2019, the Company obtained a bank borrowing which is approximately $0.28 million (RMB 1.8 million) from Bank of China with an annual interest rate of 7.2% to be due in March 2020. This bank borrowing is guaranteed by MingZhu Logistics. A Mr. Jinlong Yang’s family member pledged for this bank borrowing.

 

In April 2019, the Company obtained a bank borrowing which is approximately $0.3 million (RMB 2 million) from Industrial Bank with an annual interest rate of 5.6% to be due in April 2020. This bank borrowing is guaranteed by MingZhu Logistics.

 

In May 2019, the Company entered into a line of credit agreement with Zhujiang Rural Bank from which the Company can borrow up to approximately $0.4 million (RMB 3 million), and in the same month the Company utilized the whole amount of $0.4 million (RMB 3 million) under such line of credit, via entering into a separate bank borrowing agreement, with an annual interest rate of 6.5% to be due in May 2020. This bank borrowing is guaranteed by a Mr. Jinlong Yang’s family member.

 

In May 2019, the Company entered into a sale and leaseback agreement with Kangye Capital Lease Co., Ltd. to which the Company sold revenue equipment for approximately $0.5 million (RMB 3.5 million) and leased it back. The lease is repaid monthly and due in June 2021 with a total amount of approximately $0.7 million (RMB 4.68 million).

F-30

 

 

In September 2019, the Company entered into a sale and leaseback agreement with Chailease International Finance Corporation to which the Company sold revenue equipment for approximately $0.7 million (RMB 5 million) and leased it back. The lease is repaid monthly and due in August 2022 with a total amount of approximately $0.9 million (RMB 5.97 million).

 

In June 2019, the Company entered into a capital lease agreement with Shandong Haowo Automobile Finance Co., Ltd. from which the Company acquired two revenue equipment. The capital lease is repaid monthly and due in May 2021 with a total amount of $0.12 million (RMB 0.83 million).

 

Note 16 – Condensed financial information of the parent company (unaudited)

 

The Company performed a test on the restricted net assets of consolidated subsidiary in accordance with Securities and Exchange Commission Regulation S-X Rule 4-08 (3), “General Notes to Financial Statements” 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 years presented. For the purpose of presenting parent only financial information, the Company records its investment in its subsidiary under the equity method of accounting. Such investment is presented on the separate condensed balance sheets of the Company as “Investment in subsidiary” and the income of the subsidiary is presented as “share of income of subsidiary”. Certain information and footnote disclosures generally included in financial statements prepared in accordance with U.S. GAAP have been condensed and omitted.

 

The Company did not have other commitments, long-term obligations, or guarantees as of December 31, 2018 and 2017.

 

PARENT COMPANY BALANCE SHEETS

 

    December 31,
2018
    December 31,
2017
 
ASSETS            
CURRENT ASSETS:            
Cash   $ 123,060     $ -  
Other receivables     4,547,284       -  
Total current assets     4,670,344       -  
                 
OTHER ASSETS                
Investment in subsidiaries     3,834,687       5,040,587  
Total assets   $ 8,505,031     $ 5,040,587  
                 
LIABILITIES AND SHAREHOLDERS’ EQUITY                
                 
LIABILITIES   $ -     $ -  
                 
COMMITMENTS AND CONTINGENCIES     -       -  
                 
SHAREHOLDERS’ EQUITY                
                 
Ordinary shares: $0.001 par value, 38,000,000 shares authorized, 1,000 shares issued and outstanding as of December 31, 2018 and 2017     1       1  
Share subscription receivables     (837,837 )     (5,497,526 )
Additional paid-in capital     4,115,388       7,745,836  
Statutory reserves     537,874       251,360  
Retained earnings     4,820,640       2,252,267  
Accumulated other comprehensive (loss) income     (131,035 )     288,649  
Total shareholders’ equity     8,505,031       5,040,587  
                 
Total liabilities and shareholders’ equity   $ 8,505,031     $ 5,040,587  

 

F-31

 

 

PARENT COMPANY STATEMENT OF INCOME AND COMPREHENSIVE INCOME

 

    For the year ended
December 31,
 
    2018     2017  
EQUITY INCOME OF SUBSIDIARIES   $ 2,855,074     $ 1,238,090  
                 
COSTS AND EXPENSES                
General and Administrative expenses     187       -  
Total costs and expenses     187       -  
                 
INCOME FROM OPERATION     2,854,887       1,238,090  
                 
INCOME BEFORE INCOME TAXES     2,854,887       1,238,090  
                 
PROVISION FOR INCOME TAXES     -       -  
                 
NET INCOME     2,854,887       1,238,090  
                 
OTHER COMPREHENSIVE INCOME (LOSS)                
Foreign currency translation adjustment     (419,684 )     291,244  
COMPREHENSIVE INCOME   $ 2,435,203     $ 1,529,334  

 

F-32

 

 

PARENT COMPANY STATEMENT OF CASH FLOWS

 

    For the Year Ended
December 31,
 
    2018     2017  
Cash flows from operating activities:            
Net income   $ 2,854,887     $ 1,238,090  
Adjustments to reconcile net income to cash used in operating activities:                
Equity income of subsidiaries     (2,855,074 )     (1,238,090 )
Net cash used in operating activities     (187 )     -  
                 
Cash flows from investing activities:                
Net cash provided by investing activities:     -       -  
                 
Cash flows from financing activities:                
Amounts advanced from related parties     (3,797,183 )     -  
Capital contribution     3,916,672       -  
Net cash provided by financing activities     119,489       -  
                 
Effect of exchange rate change on cash     3,758       -  
                 
Net increase in cash     123,060       -  
                 
Cash at beginning of the year     -       -  
                 
Cash at end of the year   $ 123,060     $ -  

 

Capital contributions

 

During the year ended December 31, 2018, the Company’s shareholders contributed $3,916,672 via cash and $743,017 via debt settlement. For the year ended December 31, 2017 shareholders contributed $0 to the Company.

 

F-33

 

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

UNAUDITED INTERIM CONDENSED CONSOLIDATED BALANCE SHEETS

 

    As of
September 30,
2019
    As of
December 31,
2018
 
    USD     USD  
    (Unaudited)        
ASSETS            
CURRENT ASSETS:            
Cash   $ 287,571     $ 648,103  
Restricted cash     -       160,206  
Accounts receivable, net     13,172,742       7,392,863  
Operating supplies     -       4,019  
Prepayments     2,005,535       1,868,180  
Other receivables     578,904       442,872  
Amount due from related parties     2,424,551       51,655  
Total Current Assets     18,469,303       10,567,898  
                 
PROPERTY AND EQUIPMENT, NET     4,224,761       4,988,774  
                 
OTHER ASSETS                
Deferred tax assets     17,989       22,267  
Deposits     361,790       304,612  
Total other assets     379,779       326,879  
Total assets   $ 23,073,843     $ 15,883,551  
                 
LIABILITIES AND STOCKHOLDERS’ EQUITY                
CURRENT LIABILITIES:                
Short-term bank borrowings   $ 2,063,503     $ 1,213,730  
Accounts payable     5,980,499       845,093  
Other payables and accrued liabilities     619,434       956,052  
Amount due to related parties     700,558       193,032  
Tax payable     1,729,651       1,397,508  
Current maturities of long-term bank borrowings     167,886       174,533  
Current portion of capital lease and financing obligations     992,983       737,463  
Total current liabilities     12,254,514       5,517,411  
                 
OTHER LIABILITIES                
Long-term bank borrowings     965,346       1,134,463  
Long-term portion of capital lease and financing obligations     700,568       726,646  
Total other liabilities     1,665,914       1,861,109  
Total liabilities     13,920,428       7,378,520  
                 
COMMITMENTS AND CONTINGENCIES                
                 
SHAREHOLDERS’ EQUITY                
Ordinary shares: $0.001 par value, 38,000,000 shares authorized, 1,000 shares issued and outstanding as of September 30, 2019 and December 31, 2018     1       1  
Share subscription receivables     (837,837 )     (837,837 )
Additional paid-in capital     4,115,388       4,115,388  
Statutory reserves     687,139       537,874  
Retained earnings     5,697,408       4,820,640  
Accumulated other comprehensive loss     (508,684 )     (131,035 )
Total shareholders’ equity     9,153,415       8,505,031  
Total liabilities and shareholders’ equity   $ 23,073,843     $ 15,883,551  

 

The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.

 

F-34

 

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

UNAUDITED INTERIM CONDENSED CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME

 

    For the Nine Months Ended
September 30,
 
    2019     2018  
    USD     USD  
    (Unaudited)     (Unaudited)  
REVENUES   $ 20,735,260     $ 19,588,457  
                 
COSTS AND EXPENSES                
Transportation costs     17,951,763       15,746,947  
General and administrative expenses     1,100,652       916,846  
Sales and marketing expenses     43,585       62,023  
Total costs and expenses     19,096,000       16,725,816  
                 
INCOME FROM OPERATIONS     1,639,260       2,862,641  
                 
OTHER (EXPENSES) INCOME                
Interest expenses     (259,449 )     (286,863 )
Other expenses     (67,827 )     (7,557 )
Other income     214,788       176,306  
Total other expenses     (112,488 )     (118,114 )
                 
INCOME BEFORE INCOME TAXES     1,526,772       2,744,527  
                 
PROVISION FOR INCOME TAXES     500,739       700,801  
                 
NET INCOME   $ 1,026,033     $ 2,043,726  
                 
OTHER COMPREHENSIVE LOSS                
Foreign currency translation adjustment     (377,649 )     (408,795 )
COMPREHENSIVE INCOME   $ 648,384     $ 1,634,931  
                 
Weighted average shares used in computation:                
Basic and diluted     1,000       1,000  
                 
EARNINGS PER SHARE - BASIC AND DILUTED   $ 1,026.03     $ 2,043.73  

 

The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.

 

F-35

 

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

UNAUDITED INTERIM CONDENSED CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY

For the Nine Months Ended September 30, 2019

 

                                        Accumulated        
                Share     Additional     Retained Earnings     Other        
          Subscription     Paid-in     Statutory           Comprehensive        
    Shares     Amount     Receivables     Capital     Reserve     Unrestricted     Loss     Total  
          USD     USD     USD     USD     USD     USD     USD  
BALANCE, January 1, 2019     1,000     $ 1     $ (837,837 )   $ 4,115,388     $ 537,874     $ 4,820,640     $ (131,035 )   $ 8,505,031  
                                                                 
Net income for the period     -              -       -       -       -       1,026,033       -       1,026,033  
Foreign currency translation adjustment     -       -       -       -       -       -       (377,649 )     (377,649 )
Appropriation to statutory reserve     -       -       -       -       149,265       (149,265 )     -       -  
                                                                 
BALANCE, September 30, 2019 (unaudited)     1,000     $ 1     $ (837,837 )   $ 4,115,388     $ 687,139     $ 5,697,408     $ (508,684 )   $ 9,153,415  

 

The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.

 

F-36

 

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

UNAUDITED INTERIM CONDENSED CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY

For the Nine Months Ended September 30, 2018

 

                                        Accumulated        
                Share     Additional     Retained Earnings     Other        
          Subscription     Paid-in     Statutory           Comprehensive        
    Shares     Amount     Receivables     Capital     Reserve     Unrestricted     Income (Loss)     Total  
          USD     USD     USD     USD     USD     USD     USD  
BALANCE, January 1, 2018     1,000     $ 1     $ (5,497,526 )   $ 7,745,836     $ 251,360     $ 2,252,267     $ 288,649     $ 5,040,587  
                                                                 
Capital contribution     -            -       4,659,689       -       -       -       -       4,659,689  
Capital distribution due to reorganization     -       -       -       (3,630,448 )     -       -       -       (3,630,448 )
Net income for the period     -       -       -       -       -       2,043,726       -       2,043,726  
Foreign currency translation adjustment     -       -       -       -       -       -       (408,795 )     (408,795 )
Appropriation to statutory reserve     -       -       -       -       196,617       (196,617 )     -       -  
                                                                 
BALANCE, September 30, 2018 (unaudited)     1,000     $ 1     $ (837,837 )   $ 4,115,388     $ 447,977     $ 4,099,376     $ (120,146 )   $ 7,704,759  

 

The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.

 

F-37

 

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

UNAUDITED INTERIM CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

 

    For the Nine Months Ended
September 30,
 
    2019     2018  
    USD     USD  
Cash flows from operating activities:   (Unaudited)     (Unaudited)  
Net income   $ 1,026,033     $ 2,043,726  
Adjustments to reconcile net income to net cash provided by operating activities:                
Provision for doubtful accounts     (14,291 )     89,589
Amortization of deferred financing fees     115,987       182,103  
Depreciation for property and equipment     982,853       1,091,657  
Deferred income tax expenses (benefit)     3,573       (22,397 )
Changes in operating assets and liabilities                
Accounts receivable     (6,298,756 )     1,576,873  
Operating supplies     4,027       173,360  
Prepayments     (119,629 )     (1,297,269 )
Other receivables     (57,097 )     194,370  
Deposits     (127,215 )     88,840  
Accounts payable     5,387,241       (931,888 )
Other payables and accrued liabilities     (355,371 )     (751,613 )
Tax payables     452,303       243,753  
Net cash provided by operating activities     999,658       2,681,104  
                 
Cash flows from investing activities:                
Purchases of equipment     (292,708 )     (108,461 )
Proceeds from disposal of equipment     -       37,556  
Net cash used in investing activities     (292,708 )     (70,905 )
                 
Cash flows from financing activities:                
Proceeds from short-term bank borrowings     2,669,275       1,842,724  
Repayment of short-term bank borrowings     (1,689,646 )     (2,631,257 )
Repayment of long-term bank borrowings     (131,142 )     (767,801 )
Repayments of obligations under capital leases     (212,531 )     (932,249 )
Amounts advanced from related parties     5,716,941       4,963,917  
Repayments to related parties     (7,571,325 )     (5,326,394 )
Capital contribution     -       3,916,672  
Capital distribution     -       (3,630,448 )
Net cash used in financing activities     (1,218,428 )     (2,564,836 )
                 
Effect of exchange rate change on cash     (9,260 )     (12,968 )
                 
Net (decrease) increase in cash and restricted cash     (520,738 )     32,395  
                 
Cash and restricted cash at beginning of the period     808,309       352,748  
                 
Cash and restricted cash at end of the period   $ 287,571     $ 385,143  
                 
Supplemental disclosure of cash flow information:                
Interest paid   $ 259,449     $ 275,581  
Income tax paid   $ 25,677     $ 623,973  
                 
Supplemental non-cash investing and financing information:                
Non-cash capital leases to acquire revenue equipment   $ 90,308     $ 916,861  
Capital contribution by offsetting debt   $ -     $ 743,017  
Uncollected receivable from disposal of revenue equipment   $ -     $ 414,613  
Amount due to related parties offset by other receivables   $ -     $ 414,613  
Acquisition of revenue equipment offset by accounts receivable   $ -     $ 365,798  
Capital leases obligation settled by a related party     568,281       -  
                 
Reconciliation to amounts on unaudited interim condensed consolidated balance sheets:                
Cash   $ 287,571     $ 385,143  
Restricted cash     -       -  
Total cash and restricted cash   $ 287,571     $ 385,143  

 

The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.

 

F-38

 

 

MINGZHU LOGISTICS HOLDINGS LIMITED AND SUBSIDIARIES

Notes to Unaudited Interim Condensed Consolidated Financial Statements

(In U.S. Dollars, unless stated otherwise)

 

Note 1 – Nature of business and organization

 

Mingzhu Logistics Holdings Limited and its consolidated subsidiaries (collectively referred to as the “Group” or the “Company”) primarily provide trucking and delivery services using its own truckload fleet and subcontractors to meet its customers’ diverse transportation needs across different provinces or within Guangdong and Xinjiang in the People’s Republic of China (the “PRC” or “China”).

 

Mingzhu Logistics Holdings Limited (“MingZhu Cayman”) is a holding company incorporated in the Cayman Islands on January 2, 2018 under the laws of the Cayman Islands. The Company has no substantive operations other than holding all of the outstanding share capital of MingZhu Investment Limited (“MingZhu BVI”) established under the laws of the British Virgin Islands on January 15, 2018. MingZhu BVI is also a holding company holding all of the outstanding equity of YGMZ (Hong Kong) Limited (“MingZhu HK”) which was incorporated in Hong Kong on February 2, 2018.

 

Reorganization

 

A reorganization of the Company’s legal structure was completed on April 13, 2018. The reorganization involved the incorporation of MingZhu Cayman, and its wholly-owned subsidiaries, MingZhu BVI, and MingZhu HK; and the transfer of all equity ownership of Shenzhen Yangang Mingzhu Freight Industry Co., Ltd (“MingZhu”) to MingZhu HK from the former shareholders of MingZhu. In consideration of the transfer, the Company issued 1,000 shares of the Company with par value $0.001 (HKD 0.01) per share to the former shareholders of MingZhu.

 

On April 13, 2018, the former shareholders transferred their 100% ownership interest in MingZhu to MingZhu HK, which is 100% owned by MingZhu Cayman through MingZhu BVI. After the reorganization, MingZhu Cayman owns 100% equity interests of MingZhu BVI, MingZhu HK and MingZhu. The controlling shareholder of MingZhu Cayman is same as of MingZhu prior to the reorganization.

 

MingZhu was incorporated on July 10, 2002 in Shenzhen, Guangdong under the laws of the PRC. Shenzhen Pengcheng Shengshi Logistics Co., Ltd. (“MingZhu Pengcheng”), a company providing trucking services, was incorporated on April 7, 2010 in Shenzhen, Guangdong under the laws of the PRC. Prior to the reorganization, MingZhu and MingZhu Pengcheng were under common control. On November 10, 2017, for the purpose of reorganization so that the business of the Company could be rearranged to be under a common holding company, the entire equity interest of MingZhu Pengcheng was transferred to MingZhu.

 

These two transactions were between entities under common control, and therefore accounted for in a manner similar to the pooling of interest method. Under the pooling-of-interests method, combination between two businesses under common control is accounted for at carrying amounts with retrospective adjustment of prior period financial statements, and the equity accounts of the combining entities are combined and the difference between the consideration paid and the net assets acquired is reflected as an equity transaction (i.e., distribution to parent company). As opposed to the purchase method of accounting, no intangible assets are recognized in the transaction, and no goodwill is recognized as a result of the combination.

 

F-39

 

 

On September 5, 2018, MingZhu HK established its wholly-owned subsidiary, Shenzhen Yangang Mingzhu Supply Chain Management Co., Ltd (“MingZhu Management”), a PRC company. MingZhu Management engages in providing transportation and supply chain management services.

 

Since the Company and its subsidiaries are effectively controlled by the same group of the shareholders before and after the reorganization, they are considered under common control. The above-mentioned transactions were accounted for as a recapitalization. The consolidation of the Company and its subsidiaries has been accounted for at historical cost and prepared on the basis as if the aforementioned transactions had become effective as of the beginning of the first period presented in the unaudited interim condensed consolidated financial statements.

 

Note 2 – Summary of significant accounting policies

 

Basis of presentation

 

The unaudited interim condensed 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 SEC.

 

In the opinion of management, all adjustments (which include normal recurring adjustments) necessary to present a fair presentation of the Company’s financial position, its results of operations and its cash flows, as applicable, have been made. Interim results are not necessarily indicative of results to be expected for the full year.

 

Principles of consolidation

 

The unaudited interim condensed consolidated financial statements include the financial statements of the Company and its subsidiaries. All significant intercompany transactions and balances between the Company and its subsidiaries are eliminated upon consolidation.

 

Subsidiaries are those entities in which the Company, directly or indirectly, controls more than one half of the voting power; or has the power to govern the financial and operating policies, to appoint or remove the majority of the members of the board of directors, or to cast a majority of votes at the meeting of directors.

 

The accompanying unaudited interim condensed consolidated financial statements reflect the activities of the Company and each of the following entities:

 

Name   Background   Ownership
MingZhu Investment Limited
(“MingZhu BVI”)
 

●      A British Virgin Islands company

●      Incorporated on January 15, 2018

●      A holding company

  100% owned by MingZhu Cayman
YGMZ (Hong Kong) Limited
(“MingZhu HK”)
 

●      A Hong Kong company

●      Incorporated on February 2, 2018

●      A holding company

  100% owned by MingZhu BVI
Shenzhen Yangang Mingzhu Freight Industry Co., Ltd (“MingZhu”)  

●      A PRC limited liability company

●      Incorporated on July 10, 2002

●      Providing trucking services

  100% owned by MingZhu HK
Shenzhen Yangang Mingzhu Supply Chain Management Co., Ltd (“MingZhu Management”)  

●      A PRC limited liability company

●      Incorporated on September 5, 2018

●      Transportation and supply chain management services

  100% owned by MingZhu HK
Shenzhen Pengcheng Shengshi Logistics Co., Ltd
(“MingZhu Pengcheng”)
 

●      A PRC limited liability company

●      Incorporated on April 7, 2010

●      Providing trucking services

  100% owned by MingZhu

 

F-40

 

 

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 the useful lives of property and equipment, impairment of long-lived assets, allowance for doubtful accounts, provision for contingent liabilities, revenue recognition, and deferred taxes and uncertain tax position. Actual results could differ from these estimates.

 

Foreign currency translation and transaction

 

The functional currencies of the Company are the local currency of the country in which the subsidiaries operate. The reporting currency of the Company is the United States Dollars (“U.S. dollar”). The results of operations and the unaudited interim condensed consolidated statements of cash flows denominated in foreign currencies are translated at the average rates of exchange during the reporting period. Assets and liabilities denominated in foreign currencies at the balance sheet date are translated at the applicable rates of exchange in effect at that date. The equity denominated in the functional currencies is translated at the historical rates of exchange at the time of capital contributions. Because cash flows are translated based on the average translation rates, amounts related to assets and liabilities reported on the unaudited interim condensed consolidated statements of cash flows will not necessarily agree with changes in the corresponding balances on the unaudited interim condensed consolidated balance sheets. Translation adjustments arising from the use of different exchange rates from period to period are included as a separate component of accumulated other comprehensive income included in unaudited interim condensed consolidated statements of changes in shareholders’ equity. Transaction gains and losses that arise from exchange rate fluctuations on transactions denominated in a currency other than the functional currency in the unaudited interim condensed consolidated statement of income and comprehensive income.

 

The functional currency of MingZhu Cayman and MingZhu BVI is U.S. dollar. The functional currency of the MingZhu HK is the Hong Kong dollar (“HKD”). The Company’s subsidiaries with operations in PRC uses the local currency, Renminbi (“RMB”), as their functional currencies. An entity’s functional currency is the currency of the primary economic environment in which it operates, normally that is the currency of the environment in which the entity primarily generates and expends cash. Management’s judgment is essential to determine the functional currency by assessing various indicators, such as cash flows, sales price and market, expenses, financing and inter-company transactions and arrangements.

 

For the purpose of presenting these financial statements of subsidiaries using RMB as functional currency, the Company’s assets and liabilities are expressed in U.S. dollar at the exchange rate on the balance sheet date, which is 7.1477 and 6.8755 as of September 30, 2019 and December 31, 2018, respectively; shareholders’ equity accounts are translated at historical rates, and income and expense items are translated at the average exchange rate during the period, which is 6.8628 and 6.5121 for the nine months ended September, 2019 and 2018, respectively.

 

For the purpose of presenting these financial statements of the subsidiary using HKD as functional currency, the Company’s assets and liabilities are expressed in U.S. dollar at the exchange rate on the balance sheet date, which is 7.8401 and 7.8305 as of September 30, 2019 and December 31, 2018, respectively; shareholders’ equity accounts are translated at historical rates, and income and expense items are translated at the average exchange rate during the period, which is 7.8384 and 7.8404 for the nine months ended September, 2019 and 2018, respectively.

 

F-41

 

 

Cash

 

Cash comprises of cash at banks and on hand, which includes deposits with original maturities of three months or less with commercial banks in PRC. As of September 30, 2019 and December 31, 2018, the Company did not have any cash equivalents. Cash were held in accounts at financial institutions located in the PRC‚ which is not freely convertible into foreign currencies. In addition, these balances are not covered by insurance. While management believes that these financial institutions are of high credit quality, it also continually monitors their creditworthiness. The Company and its subsidiaries have not experienced any losses in such accounts and do not believe the cash is exposed to any significant risk.

 

Restricted cash

 

In November 2016, the FASB issued ASU No. 2016-18, Statement of Cash Flows (230): Restricted Cash. The amendments in this Update require that a statement of cash flows explain the change during the period in the total of cash, cash equivalents, and amounts generally described as restricted cash or restricted cash equivalents. For public business entities, the amendments in this update are effective for fiscal years beginning after December 15, 2017, and interim periods within those annual periods. Earlier adoption is permitted. The amendments in this Update should be applied using a retrospective transition method to each period presented. On January 1, 2018, the Company adopted this guidance on a retrospective basis and have applied the changes to the consolidated statement of cash flows starting from the year ended December 31, 2016.

 

Accounts Receivable and allowance for doubtful accounts

 

Accounts receivables are stated and carried at original invoiced amount. Accounts are considered overdue after 90 days. In establishing the required allowance for doubtful accounts, management considers historical collection experience, aging of the receivables, the economic environment, industry trend analysis, and the credit history and financial conditions of the customers. Management reviews its receivables on a regular basis to determine if the bad debt allowance is adequate and adjusts the allowance when necessary. Delinquent account balances are written-off against allowance for doubtful accounts after all means of collection have been exhausted and that the likelihood of collection is not probable.

 

F-42

 

 

Operating supplies

 

Operating supplies consist primarily of tires for servicing the Company’s revenue equipment. Operating supplies are recorded at the lower of cost (on a first-in, first-out basis) or net realizable value. Tires purchased as part of revenue equipment are capitalized as part of the cost of the equipment. Replacement tires are charged to expense when placed in service.

 

Prepayments and Deposits

 

Prepayments are cash deposited or advanced to suppliers for purchasing goods or services that have not been received or provided and deposits made to the Company’s customers and landlord. This amount is refundable and bears no interest. Prepayment and deposit are classified as either current or non-current based on the terms of the respective agreements. These advances are unsecured and are reviewed periodically to determine whether their carrying value has become impaired.

 

Other receivables

 

Other receivables primarily include short-term interest-free advances made to third parties, rental receivables and receivables for disposal of equipment. Management regularly reviews the aging of receivables and changes in payment trends and records allowances when management believes collection of amounts due are at risk. Accounts considered uncollectable are written off against allowances after exhaustive efforts at collection are made.

 

Property and equipment, net

 

Property and equipment are stated at cost net of accumulated depreciation and impairment. Depreciation is provided over the estimated useful lives of the assets using the straight-line method from the time the assets are placed in service, after considering the estimated residual value which is 5% of costs. Estimated useful lives are as follows:

 

Classification   Estimated Useful Life
Buildings and improvements   10 years
Computer and office equipment   3-5 years
Revenue equipment*   5 years

 

* Revenue equipment are trucks and trailers only used for providing trucking services.

 

The cost and related accumulated depreciation of assets sold or otherwise retired are eliminated from the accounts and any gain or loss is included in the unaudited interim condensed consolidated statements of income and comprehensive income. Expenditures for maintenance and repairs, which do not materially extend the useful lives of the assets, are charged to earnings 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 to determine whether subsequent events and circumstances warrant revised estimates of useful lives.

 

F-43

 

 

Leases

 

The Company accounts for all significant leases as either operating or capital. At lease inception, if the lease meets any of the following four criteria, the Company will classify it as a capital lease: (a) transfer of ownership to lessee at the end of the lease term, (b) bargain purchase option, (c) lease term is equal to 75% or more of the estimated economic life of the leased property, or (d) the present value of the minimum lease payments is 90% or more of the fair value of the leased asset. Otherwise, the lease will be treated as an operating lease.

 

Impairment of long-lived assets

 

Long-lived assets, including property and equipment 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 assets based on the undiscounted future cash flows the assets are expected to generate and recognize an impairment loss when estimated undiscounted 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 will reduce the carrying amount of the asset to its estimated fair value based on a discounted cash flows approach or, when available and appropriate, to comparable market values. For the nine months ended September 30, 2019 and 2018, no impairment of long-lived assets was recognized.

 

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 of the fair value hierarchy are as follows:

 

  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 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.

 

Financial instruments included in current assets and current liabilities are reported in the unaudited interim condensed consolidated balance sheets at face value or cost, which 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.

 

Interest rates that are currently available to the Company for issuance of long-term debt and capital lease with similar terms and remaining maturities are used to estimate the fair value of the Company’s long-term debt. The fair value of the Company’s long-term debt approximated the carrying value at September 30, 2019 and December 31, 2018, as the weighted average interest rate on these long-term debt approximates the market rate for similar debt.

 

F-44

 

 

Share subscription receivables

 

Share subscription receivable represents unpaid capital contribution from the Company’s shareholders.

 

Claims accruals

 

With respect to cargo loss and auto liability, the Company maintains insurance coverage to protect it from certain business risks. Claims accruals represent the uninsured portion of pending claims including estimates of adverse development of known claims, plus an estimated liability for incurred but not reported claims. Upon settling claims and expenses associated with claims where it has third party coverage, the Company is generally required to initially fund payment to the claimant and seek reimbursement from the insurer.

 

The Company shall be responsible for any loss or damages to the goods entrusted to it or any loss or damage or personal injury happened in the course of the Company’s provision of relevant trucking services. As at the date of this report the Company maintained an adequate insurance coverage in relation to the trucking services to be delivered to its customers and third-party liability. The Company has also maintained sufficient workers’ compensation for its employees.

 

Revenue Recognition

 

The Company elected to adopt Accounting Standards Codification (ASC) Topic 606, Revenue from Contracts with Customers (ASC 606), effective as of January 1, 2017. Accordingly, the unaudited interim condensed consolidated financial statements for the nine months ended September 30, 2019 and 2018 are presented under ASC 606. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The Company elected the modified retrospective method which required a cumulative adjustment to retained earnings instead of retrospectively adjusting prior periods. The adoption of ASC 606 did not have a material impact on the Company’s unaudited interim condensed consolidated financial statements.

 

Revenues are generated from provision of trucking services. For each trip, The Company has a single performance obligation, to transport its customer’s freight from a specified origin to a specified destination, with the transit period typically being less than three days.

 

The management have determined that revenue recognition over the transit period provides a reasonable estimate of the provision of services to its customers as its obligation is performed over the transit period. For loads picked up during the reporting period, but delivered in a subsequent reporting period, revenue is allocated to each period based on the transit time in each period as a percentage of total transit time.

 

The Company subcontracts certain of its trucking services to external transportation companies, primarily to carry out trucking services for customers with demand of irregular delivery schedules. The Company also engages subcontractors when it is under capacity assuming its master service agreements with customers allow subcontracting. Revenue is generated from the same base of customers. The Company evaluates whether its performance obligation is a promise to transfer services to the customer (as the principal) or to arrange for services to be provided by another party (as the agent) using a control model. The Company’s evaluation determined that it is in control of establishing the transaction price, managing all aspects of the shipments process and taking the risk of loss for delivery, collection, and returns. Based on its evaluation of the control model, the Company determined that all of its major businesses act as the principal rather than the agent within their revenue arrangements and such revenues are reported on a gross basis.

 

F-45

 

 

The Company applies the practical expedient in Topic 606 that permits the Company to not disclose the aggregate amount of transaction price allocated to performance obligations that are unsatisfied as of the end of the period as the Company’s contracts have an expected length of one year or less. The Company also applies the practical expedient in Topic 606 that permits the recognition of incremental costs of obtaining contracts as an expense when incurred if the amortization period of such costs is one year or less. These costs are included in purchased transportation costs.

 

The Company’s performance obligations represent the transaction price allocated to future reporting periods for freight services started but not completed at the reporting date. This includes the unbilled amounts and accrued freight costs for freight shipments in transit. As of September 30, 2019, the Company has $6,673 of unbilled amounts recorded in accounts receivable and $5,777 of accrued freight costs recorded in accounts payable.

 

Disaggregated information of revenues by geographic locations are as follows:

 

    For the nine months ended
September 30,
 
    2019     2018  
    (Unaudited)        
Guangdong province   $ 10,525,360     $ 10,860,968  
Xinjiang province     10,209,900       8,727,489  
Total revenues   $ 20,735,260     $ 19,588,457  

 

Transportation costs

 

The transportation costs primarily consist of fuel expenses, highway bridge expenses, insurance expenses, drivers’ wages, maintenance and repairs expenses, subcontractor fees, depreciation expenses and other expenses.

 

Sales and marketing expenses

 

Sales and marketing expenses primarily include advertising costs. Advertising costs are expensed as incurred and amounted to $43,585 and $62,023 for the nine months ended September 30, 2019 and 2018, respectively.

 

Employee benefit

 

The full-time employees of the Company are entitled to staff welfare benefits including medical care, housing fund, 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 out of the amounts accrued. Total expenses for the plans were $40,844 and $37,731 for the nine months ended September 30, 2019 and 2018, respectively.

 

F-46

 

 

Value added taxes

 

The Company is subject to value added tax (“VAT”). Revenue from provision of trucking services is generally subject to VAT at the rate of 9% starting in April 2019, at the rate of 10% starting in May 2018 to March 2019 or at the rate of 11% in April 2018 and prior. The Company is entitled to a refund for VAT already paid on goods and services purchased. The VAT balance is recorded in tax payables on the unaudited interim condensed consolidated balance sheets. Revenues are presented net of applicable VAT.

 

Income taxes

 

The Company accounts for income taxes in accordance with the laws of the relevant tax authorities. 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 interim 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 profit 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. 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. No penalties and interest incurred related to underpayment of income tax are classified as income tax expense in the period incurred.

 

Comprehensive income (loss)

 

Comprehensive income (loss) consists of two components, net income (loss) and other comprehensive income (loss). Other comprehensive income (loss) refers to revenue, expenses, gains and losses that under GAAP are recorded as an element of shareholders’ equity but are excluded from net income. Other comprehensive income (loss) consists of a foreign currency translation adjustment resulting from the Company not using the U.S. dollar as its functional currencies.

 

Earnings per share

 

The Company computes earnings per share (“EPS”) in accordance with ASC 260, “Earnings per Share”. ASC 260 requires companies to present basic and diluted EPS. Basic EPS is measured as net income divided by the weighted average ordinary shares outstanding for the period. Diluted EPS presents the dilutive effect on a per share basis of the potential ordinary shares (e.g., convertible securities, options and warrants) as if they had been converted at the beginning of the periods presented, or issuance date, if later. Potential ordinary shares that have an anti-dilutive effect (i.e., those that increase income per share or decrease loss per share) are excluded from the calculation of diluted EPS. For the nine months September 30, 2019 and 2018, there were no dilutive shares.

 

F-47

 

 

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). For foreign invested enterprises and joint ventures in the PRC, annual appropriations should be made to the “reserve fund”. For foreign invested enterprises, the annual appropriation for the “reserve fund” cannot be less than 10% of after-tax profits until the aggregated appropriations reach 50% of the registered capital (as determined under PRC GAAP at each year-end). If the Company has accumulated loss from prior periods, the Company is able to use the current period net income after tax to offset against the accumulate loss.

 

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.

 

Segment Reporting

 

The Company’s chief operating decision maker (“CODM”) has been identified as its CEO, who reviews the consolidated results when making decisions about allocating resources and assessing performance of the Company as a whole and hence, the Company has only one reportable segment. The Company does not distinguish between markets or segments for the purpose of internal reporting. The Company’s long-lived assets are substantially all located in the PRC and all of the Company’s revenues are derived from the PRC.

 

Recent issued Accounting Pronouncements

 

In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842). This update will require the recognition of a right-of-use asset and a corresponding lease liability, initially measured at the present value of the lease payments, for all leases with terms longer than 12 months. For operating leases, the asset and liability will be expensed over the lease term on a straight-line basis, with all cash flows included in the operating section of the statement of cash flows. For finance leases, interest on the lease liability will be recognized separately from the amortization of the right-of-use asset in the statement of comprehensive income and the repayment of the principal portion of the lease liability will be classified as a financing activity while the interest component will be included in the operating section of the statement of cash flows. ASU 2016-02 is effective for interim and annual periods beginning after December 15, 2018 and requires a modified retrospective approach to adoption. 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. In November 2019, the FASB issued ASU No. 2019-10, by which to defer the effective date for all other entities by an additional year. As an emerging growth company, the Company has not early adopted this update and it will become effective on January 1, 2021. The Company is currently evaluating the impact of the adoption of ASU 2016-02 on its unaudited interim condensed consolidated financial statements and related disclosures.

 

F-48

 

 

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 Company does not expect this standard to have a material impact on its unaudited interim condensed consolidated financial statements.

 

In June 2016, the FASB issued ASU No. 2016-13, Financial Instruments-Credit Losses (Topic 326), which requires entities to measure all expected credit losses for financial assets held at the reporting date based on historical experience, current conditions, and reasonable and supportable forecasts. This replaces the existing incurred loss model and is applicable to the measurement of credit losses on financial assets measured at amortized cost. This guidance is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2019. Early application will be permitted for all entities for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2018. The Company does not expect this standard to have a material impact on its unaudited interim condensed 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 recharacterize 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 would have a material effect on the Company’s unaudited interim condensed consolidated financial statements.

 

F-49

 

 

In August 2018, the FASB Accounting Standards Board issued ASU No. 2018-13, “Fair Value Measurement (Topic 820): Disclosure Framework Changes to the Disclosure Requirements for Fair Value Measurement” (“ASU 2018-13”). ASU 2018-13 modifies the disclosure requirements on fair value measurements. ASU 2018-13 is effective for public entities for fiscal years beginning after December 15, 2019, with early adoption permitted for any removed or modified disclosures. The removed and modified disclosures will be adopted on a retrospective basis and the new disclosures will be adopted on a prospective basis. The Company does not expect this guidance will have a material impact on its unaudited interim condensed 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 would have a material effect on the Company’s unaudited interim condensed consolidated financial statements.

 

Except for the above-mentioned pronouncements, there are no new recent issued accounting standards that will have material impact on the unaudited interim condensed consolidated financial position, statements of operations and cash flows.

 

Concentrations of Risks

 

(a) Foreign currency risk

 

A majority of the Company’s expense transactions are denominated in RMB and a significant portion of the Company and its subsidiaries’ assets and liabilities are denominated in RMB. RMB is not freely convertible into foreign currencies. In the PRC, certain foreign exchange transactions are required by law to be transacted only by authorized financial institutions at exchange rates set by the People’s Bank of China (“PBOC”). It is difficult to predict how market forces or PRC or U.S. government policy may impact the exchange rate between the RMB and the U.S. dollar in the future. The change in the value of the RMB relative to the U.S. dollar may affect the Company’s financial results reported in the U.S. dollar terms without giving effect to any underlying changes in the Company’s business or results of operations. Remittances in currencies other than RMB by the Company in China must be processed through the PBOC or other China foreign exchange regulatory bodies which require certain supporting documentation in order to affect the remittance.

 

As a result, the Company is exposed to foreign exchange risk as revenues and results of operations may be affected by fluctuations in the exchange rate between the U.S. dollar and RMB. If the RMB depreciates against the U.S. dollar, the value of RMB revenues, earnings and assets as expressed in U.S. dollar financial statements will decline. The Company has not entered into any hedging transactions in an effort to reduce its exposure to foreign exchange risk.

 

F-50

 

 

(b) Concentration of Credit risk

 

Financial instruments that potentially subject the Company to a significant concentration of credit risk consist primarily of cash and restricted cash. As of September 30, 2019 and December 31, 2018, substantially all of the Company’s cash and restricted cash were held by major financial institutions located in the PRC, which management believes are of high credit quality.

 

For the credit risk related to accounts receivable, the Company performs ongoing credit evaluations of its customers. The Company establishes an allowance for doubtful accounts based upon estimates, factors surrounding the credit risk of specific customers and other information. The allowance amounts were immaterial for all periods presented.

 

(c) Customer concentration risk

 

For the nine months ended September 30, 2019, two customers accounted for 23.1%, and 16.5% of the Company’s total revenues. For the nine months ended September 30, 2018, three customers accounted for 23.3%, 12.4% and 10.5% of the Company’s total revenues. No other customer accounts for more than 10% of the Company’s revenue for the nine months ended September 30, 2019 and 2018, respectively.

 

As of September 30, 2019, three customers accounted for 32.6%, 14.3% and 12.4% of the total balance of accounts receivable. As of December 31, 2018, four customers accounted for 26.9%, 13.2%, 13.1% and 10.7% of the total balance of accounts receivable. No other customer accounts for more than 10% of the Company’s accounts receivable as of September 30, 2019 and December 31, 2018, respectively.

 

(d) Vendor concentration risk

 

For the year ended September 30, 2019, three subcontractors accounted for 28.4%, 10.9% and 10.5% of the Company’s total subcontracting costs. For the nine months ended September 30, 2018, one subcontractor accounted for 31.9% of the Company’s total subcontracting costs. No other subcontractor accounts for more than 10% of the Company’s total subcontracting costs for the nine months ended September 30, 2019 and 2018, respectively.

 

As of September 30, 2019, four subcontractors accounted for 30.2%, 27.0%, 11.3% and 11.1% of the total balance of accounts payable. As of December 31, 2018, two subcontractors accounted for 67.2% and 32.8% of the total balance of accounts payable. No other subcontractor accounts for more than 10% of the Company’s accounts payable as of September 30, 2019 and December 31, 2018, respectively.

 

Note 3 – Accounts receivable, net

 

Accounts receivable, net consist of the following:

 

    September 30,
2019
    December 31,
2018
 
    (Unaudited)        
Accounts receivable   $ 13,244,698     $ 7,481,932  
Allowance for doubtful accounts     (71,956 )     (89,069 )
Total accounts receivable, net   $ 13,172,742     $ 7,392,863  

 

F-51

 

 

Movements of allowance for doubtful accounts are as follows:

 

    September 30,
2019
    December 31,
2018
 
    (Unaudited)        
Beginning balance   $ 89,069     $ 29,518  
(Recovery) provision     (14,291 )     63,601  
Write off     -       -  
Exchange rate effect     (2,822 )     (4,050 )
Ending balance   $ 71,956     $ 89,069  

 

Note 4 – Prepayments

 

Prepayments consist of the following:

 

    September 30,
2019
    December 31,
2018
 
    (Unaudited)        
Prepayments            
Prepayment - subcontracting*   $ 620,353     $ 1,416,114  
Prepayment - fuel     216,475       244,083  
Prepayment - insurance     211,364       137,996  
Prepayment - parts and others     655,642       69,987  
Deferred IPO costs     301,701       -  
Total prepayments   $ 2,005,535     $ 1,868,180  

 

* The management seeks to secure and expand its market share in Xinjiang province and the prepayments to subcontractors are able to attract better subcontractors.

 

Note 5 – Other receivables

 

Other receivables consist of the following:

 

    September 30,
2019
    December 31,
2018
 
Other receivables  

(Unaudited)

       
Rental receivables   $ 12,399     $ 36,334  
Other receivables, disposal of revenue equipment     -       89,101  
Others     566,505       317,437  
Total Other receivables   $ 578,904     $ 442,872  

 

Others primarily involve the interest-free advances to third parties. The balance of others as of December 31, 2018 was fully collected for the nine months ended September 30, 2019. Approximately $500,000 of others as of September 30, 2019 was collected up to the date hereof and the management believes the remaining balance is immaterial and will be collected by the end of 2019.  

 

F-52

 

 

Note 6 – Property and equipment, net

 

Property and equipment, net consist of the following:

  

    September 30,
2019
    December 31,
2018
 
Property and equipment   (Unaudited)        
Buildings and improvements   $ 1,059,178     $ 1,101,111  
Computer and office equipment     19,281       20,045  
Revenue equipment     8,520,771       8,473,825  
Subtotal     9,599,230       9,594,981  
Less: accumulated depreciation     (5,374,469 )     (4,606,207 )
Property and equipment, net   $ 4,224,761     $ 4,988,774  

 

Revenue equipment under capital leases

 

The Company leased its revenue equipment from third parties with terms of approximately 24 to 36 months and account for as a capital lease. As of September 30, 2019, carrying value and accumulated depreciation of the revenue equipment under capital leases recorded by the Company were $1,386,609 and $2,006,280, respectively. As of December 31, 2018, carrying value and accumulated depreciation of the assets under capital leases recorded by the Company were $1,409,367 and $718,483, respectively. Depreciation expenses for revenue equipment under capital leases were $363,183 and $275,657 for the nine months ended September 30, 2019 and 2018, respectively.

 

Depreciation expenses for the nine months ended September 30, 2019 and 2018 were $982,853 and $1,091,657, respectively.

 

Note 7 – Other payables and accrued liabilities

 

Other payables and accrued liabilities consist of the following:

 

    September 30,
2019
    December 31,
2018
 
    (Unaudited)        
Other payables and accrued liabilities            
Contingent liabilities   $ -     $ 199,498  
Rental deposits     -       4,848  
Salary payables     337,574       554,094  
Others     187,972       151,797  
Receipt in advance     93,888       45,815  
Total Other payables and accrued liabilities   $ 619,434     $ 956,052  

 

Others primarily involve the interest-free borrowings from third parties. Contingent liabilities include expenses accrued due to several lawsuits (refer to Note 14). As of December 31, 2018, $160,206 of cash was frozen by the local court due to two lawsuits. Upon the date of April 30, 2019, the frozen cash was released as the two lawsuits were all resolved and a total amount of $ 145,909 were paid.

 

F-53

 

 

Note 8 – Credit facilities

 

Short-term bank borrowings

 

Outstanding balances of Short-term bank borrowings as of September 30, 2019 and December 31, 2018 consisted of the following:

 

Bank name   Term   Interest rate   Collateral/ Guarantee   Date of paid off / Maturity   September 30,
2019
    December 31,
2018
 
                    (Unaudited)        
Bank of China   From March, 2019 to March, 2020   Weighted average rate of 7.18%   Guarantee by Mr. Jinlong Yang and Shenzhen Yangang Mingzhu Logistics Co., Ltd. (“MingZhu Logistics”), a company owned by Mr. Jinlong Yang’s sister, pledge by a property owned by Mr. Jinlong Yang’s family member and collateralized by MingZhu’s receivables   March 20, 2020   $ 184,955     $ -  
Bank of China   From January 2019 to January, 2020   Weighted average rate of 7.18%   Guarantee by Mr. Jinlong Yang and Shenzhen Yangang Mingzhu Logistics Co., Ltd. (“MingZhu Logistics”), a company owned by Mr. Jinlong Yang’s sister, pledge by a property owned by Mr. Jinlong Yang’s family member and collateralized by MingZhu’s receivables   January 20, 2020     535,459       -  
The Industrial Bank Co., Ltd.   From April, 2019 to April, 2020   Weighted average rate of 5.65%   Guarantee by YANG Jinlong and Shenzhen Yangang Mingzhu Logistics Co., Ltd.   April 20, 2020     223,848       -  
Zhujiang Rural Bank   From May, 2019 to May, 2020   Weighted average rate of 6.53%   Guarantee by YANG Jinlong and one of YANG Jinlong’s family member, pledged by Jinlong Yang and his private fixed deposits of RMB one million.   May 20, 2020     419,715       -  
Guangdong Nanyue Bank*   From September, 2019 to September 2020   Weighted average rate of 8.5%   Guarantee by Mr. Jinlong Yang, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang   September 29, 2020     699,526       -  
Bank of China   From March, 2018 to March, 2019   Weighted average rate of 6.53%   Guarantee by Mr. Jinlong Yang and Shenzhen Yangang Mingzhu Logistics Co., Ltd. (“MingZhu Logistics”), a company owned by Mr. Jinlong Yang’s sister, pledge by a property owned by Mr. Jinlong Yang’s family member and collateralized by MingZhu’s receivables   March 11, 2019     -       272,707  
China Merchants Bank   From April, 2018 to April, 2019   Weighted average rate of 6.61%   Guarantee by Mr. Jinlong Yang, pledge by a property owned by Mr. Jinlong Yang   April 10, 2019     -       221,075  
The Industrial Bank Co., Ltd.   From January, 2018 to January, 2019   Weighted average rate of 7.90%   Guarantee by Mr. Jinlong Yang and MingZhu Logistics   January 5, 2019     -       145,444  
Postal Savings Bank of China Co., Ltd.   From May, 2018 to May, 2019   Weighted average rate of 5.44%   Guarantee by third party, Mr. Jinlong Yang and other family members of Mr. Jinlong Yang, pledge by properties owned by family members of Mr. Jinlong Yang   April 20, 2019     -       574,504  
Total                   $ 2,063,503     $ 1,213,730  

 

* In September 2019, we entered into a one-year term line of credit agreement with Guangdong Nanyue Bank pursuant to which we may borrow up to $1,399,051 (RMB 10,000,000). The line of credit agreement entitles us to enter into several separate loan contracts under such line of credit. We utilized $699,526 (RMB 5,000,000) in September 2019. For each withdraw from the line of credit, a separate loan was entered into with a one-year term from the credit line withdraw date and we recorded these loans as short-term bank borrowings in our consolidated financial statements. As of September 30, 2019, the unutilized line of credit was $699,526 (RMB 5,000,000).

F-54

 

 

Interest expenses incurred from short-term bank borrowings were $81,111 and $145,128 for the nine months ended September, 2019 and 2018, respectively.

 

Long-term bank borrowings

 

Outstanding balances of long-term bank borrowings as of September 30, 2019 and December 31, 2018 consisted of the following:

 

Bank name   Term   Interest rate   Collateral/ Guarantee   Date of Maturity   September 30,
2019
    December 31,
2018
 
                      (Unaudited)           
Postal Savings Bank of China Co., Ltd.   From November, 2018 to November, 2020   Weighted average rate of 5.70%   Guarantee by Mr. Jinlong Yang and other family members of Mr. Jinlong Yang, pledge by properties owned by family members of Mr. Jinlong Yang   November 20, 2020   $ 1,133,232     $ 1,308,996  
Less: current maturities                     (167,886 )     (174,533 )
Non-current maturities                   $ 965,346     $ 1,134,463  

 

The maturities schedule of long-term bank borrowings is as follow:

 

    As of
September 30,
2019
    As of
December 31,
2018
 
Payments due by period   (Unaudited)        
Less than 1 year   $ 167,886     $ 174,533  
1-2 years     965,346       1,134,463  
Total   $ 1,133,232     $ 1,308,996  

 

Interest expenses incurred from long-term bank borrowings were $54,360 and $27,299 for the nine months ended September 30, 2019 and 2018, respectively.

 

F-55

 

 

Note 9 – Leases

 

The Company leases certain of its revenue equipment under capital lease agreements. The terms of the capital leases expire at various dates through August 2022. The Company has option to purchase the revenue equipment for a nominal amount at the end of the lease term. The company also obtains installment loans for payment of revenue equipment’s insurance.

 

The Company has capital lease commitments for revenue equipment summarized for the following fiscal years:

 

    Minimum lease payments     Present value of minimum lease payments  
    (Unaudited)     (Unaudited)  
12 months ending September 30,            
2020   $ 1,136,497     $ 992,983  
2021     586,813       529,251  
2022     186,214       171,317  
Total     1,909,524       1,693,551  
                 
Less: amount representing interest     (215,973 )     -  
                 
Present value of minimum lease payments   $ 1,693,551       1,693,551  
                 
Less: current maturities             (992,983 )
                 
Capital lease obligations, long-term           $ 700,568  

 

The lease term of the Company’s capital lease obligations ranged from two to three years. Interest rates underlying the capital lease obligations ranged from 3.4% to 17.0% per annum and 7.5% to 11.1% per annum for the nine months ended September 30, 2019 and 2018, respectively.

 

The Company’s pledged revenue equipment under capital lease are as follow:

 

Name of institution   Maturities   Interest rate     Carrying amount of pledged revenue equipment as of
September 30,
2019
    Carrying amount of pledged revenue equipment as of
December 31,
2018
 
                  (Unaudited)           
Chailease International Finance Corporation   From September 20, 2019 to August 20, 2022     17.0 %   $ 285,501     $ -  
ShanDong HOWO Auto Finance Co., Ltd.   From June 20, 2019 to May 15, 2021     3.4 %     117,202       -  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From September 30, 2018 to September 10, 2020     11.1 %     59,983       73,328  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From July 20, 2018 to July 10, 2020     11.1 %     28,233       34,836  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From May 23, 2018 to May 20, 2021     7.6 %     620,048       773,065  
Shanghai Chengtai Finance Leasing Co., Ltd.   From December 28, 2017 to December 29, 2020     7.5 %     58,264       111,403  
Zhejiang Zhongda Yuantong Finance Leasing Co.,Ltd.   From October 12, 2017 to October 20, 2019     9.9 %     57,412       73,403  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From May 10, 2017 to June 20, 2020     10.5 %     55,488       72,884  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From April 1, 2017 to April 20, 2019     10.5 %     -       131,437  
Sumitomo Mitsui Finance and Leasing (China) Co., Ltd.   From February 27, 2017 to March 20, 2020     10.5 %     104,478       139,012  
Total               $ 1,386,609     $ 1,409,368  

 

F-56

 

 

The Company’s capital lease obligations are secured by the lessor’s title to the leased assets. As of September 30, 2019, certain of the Company’s obligation under finance lease was secured by corporate guarantees given by MingZhu Logistics.

 

The Company entered into a lease for office space located in Shenzhen, Guangdong, China for the period from November 21, 2018 to November 20, 2023, with a rent-free period from November 21, 2018 to November 20, 2019.

 

The total future minimum lease payments under the non-cancellable operating lease with respect to the office September 30, 2019 are payable as follows:

 

12 months ending September 30,      
2020   $ 509,747  
2021     141,288  
2022     104,359  
2023     104,359  
2024     14,494  
Future minimum operating lease payments   $ 874,247  

 

Rental expense of the Company for the nine months ended September 30, 2019 and 2018 were $118,505 and $11,391, respectively.

 

Note 10 – Related party balances and transactions

 

Related party balances

 

The amount due from related parties consists of the following:

 

RP Name   Relationship   Nature   September 30,
2019
    December 31,
2018
 
              (Unaudited)          
MingZhu Logistics   Mr. Jinlong Yang’s family member as sole shareholder   Lending with no interests   $ 1,499,107     $ 51,603  
Excelsior Investment Limited   Shareholder   Advance for tax in relation with share transfer     -       52  
Mr. Jinlong Yang   Chairman and Chief Executive Officer   Lending with no interests     925,444       -  
            $ 2,424,551     $ 51,655  

 

The above balance has been fully collected as of the date of this prospectus.

 

F-57

 

 

The amount due to related parties consists of the following:

 

RP Name   Relationship   Nature   September 30,
2019
    December 31,
2018
 
              (Unaudited)          
Mr. Jinlong Yang   Chairman and Chief Executive Officer   Advances for operational purpose     -       193,032  
Exquisite Elite Limited   Shareholder   Advances for payment of professional fee     611,091       -  
Mr. Zuojie Dai   Manager of MingZhu Pengcheng   Advances for operational purpose     89,467       -  
            $ 700,558     $ 193,032  

 

Collateral and Guarantee

 

The collateral and guarantee made by related parties to the Company as of September 30, 2019 consists of the following:

 

Related Parties   Institution Name   Term   Aggregated Principal     Carrying Amount as of September 30,
2019
 
                  (Unaudited)  
Guarantee by Mr. Jinlong Yang, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From November  2018 to November, 2020   $ 1,308,996     $ 1,133,232  
Guarantee by Mr. Jinlong Yang and MingZhu Logistics, pledge by a property owned by Mr. Jinlong Yang’s family member for bank borrowings   Bank of China   From March, 2019 to March, 2020     1,119,241       720,414  
Guarantee by Mr. Jinlong Yang and Shenzhen Yangang Mingzhu Logistics Co., Ltd.   The Industrial Bank Co., Ltd.   From April, 2019 to April, 2020     279,810       223,848  
Guarantee by Mr. Jinlong Yang and one of Mr. Jinlong Yang’s family member, pledged by Mr. Jinlong Yang and his private fixed deposits of RMB 1 million.   Zhujiang Rural Bank   From May, 2019 to May, 2020     419,715       419,715  
Guarantee by MingZhu Logistics for capital leases   Chengtai Capital Lease Co., Ltd.   From December, 2017 to December, 2020     541,793       231,430  
Guarantee by Mr. Jinlong Yang, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang   Guangdong Nanyue Bank   From September, 2019 to September 2020     699,526       699,526  
            $ 3,512,161     $ 2,892,705  

 

F-58

 

 

The collateral and guarantee made by related parties to the Company as of December 31, 2018 consists of the following:

 

Related Parties   Institution Name   Term   Aggregated Principal     Carrying Amount as of December 31,
2018
 
Guarantee by Mr. Jinlong Yang, pledge by properties owned by Mr. Jinlong Yang and properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From November  2018 to November, 2020   $ 1,308,996     $ 1,308,996  
Guarantee by Mr. Jinlong Yang and other family members of Mr. Jinlong Yang, pledge by properties owned by family members of Mr. Jinlong Yang for bank borrowings   Postal Savings Bank of China Co., Ltd.   From May, 2018 to June, 2019     727,220       574,504  
Guarantee by Mr. Jinlong Yang and MingZhu Logistics, pledge by a property owned by Mr. Jinlong Yang’s family member for bank borrowings   Bank of China   From March, 2018 to March, 2019     436,332       272,707  
Guarantee by Mr. Jinlong Yang and MingZhu Logistics for bank borrowings   The Industrial Bank Co., Ltd.   From January, 2018 to January, 2019     290,888       145,444  
Guarantee by MingZhu Logistics for capital leases   Chengtai Capital Lease Co., Ltd.   From December, 2017 to December, 2020     541,793       374,518  
Guarantee by Mr. Jinlong Yang, pledge by a property owned by Mr. Jinlong Yang for bank borrowings   China Merchants Bank   From April, 2018 to April, 2019     290,888       221,075  
            $ 3,596,117     $ 2,897,244  

 

Note 11 – Employee benefits government plan

 

The Company participates in a government-mandated multi-employer defined contribution plan pursuant to which certain retirement, medical and other welfare benefits are provided to employees. PRC labor regulations require the Company to pay to the local labor bureau a monthly contribution calculated at a stated contribution rate based on the basic monthly compensation of qualified employees. The relevant local labor bureau is responsible for meeting all retirement benefit obligations; the Company has no further commitments beyond its monthly contribution.

 

Note 12 – Income taxes

 

Cayman Islands

 

F-59

 

 

The Company was incorporated in the Cayman Islands and is not subject to tax on income or capital gains under the laws of Cayman Islands. Additionally, the Cayman Islands does not impose a withholding tax on payments of dividends to shareholders.

 

British Virgin Islands

 

MingZhu BVI is incorporated in the British Virgin Islands and is not subject to tax on income or capital gains under current British Virgin Islands law. In addition, upon payments of dividends by these entities to their shareholders, no British Virgin Islands withholding tax will be imposed.

 

Hong Kong

 

MingZhu HK is incorporated in Hong Kong and is subject to Hong Kong Profits Tax on the taxable income as reported in its statutory financial statements adjusted in accordance with relevant Hong Kong tax laws. The applicable tax rate is 16.5% in Hong Kong. The Company did not make any provisions for Hong Kong profit tax as there were no assessable profits derived from or earned in Hong Kong since inception. Under Hong Kong tax law, MingZhu HK is exempted from income tax on its foreign-derived income and there are no withholding taxes in Hong Kong on remittance of dividends.

 

PRC

 

The Company PRC subsidiaries are governed by the income tax laws of the PRC and the income tax provision 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”), Chinese enterprises are subject to income tax at a rate of 25% after appropriate tax adjustments.

 

The Ministry of Finance (“MOF”) and State Administration of Taxation (“SAT”) on January 17, 2019 jointly issued Cai Shui 2019 No. 13. This clarified that from January 1, 2019 to December 31, 2021, eligible small enterprises whose first RMB 1,000,000 of annual taxable income is eligible for 75% reduction on a rate of 20% (i.e., effective rate is 5%) and the income between RMB 1,000,000 and RMB 3,000,000 is eligible for 50% reduction on a rate of 20% (i.e. effective rate is 10%). For the nine months ended September 30, 2019, MingZhu Pengcheng was eligible to employ this policy.

 

Significant components of the income tax expense consisted of the following for the nine months ended September 30,

 

    2019     2018  
    (Unaudited)     (Unaudited)  
Current income tax expense   $ 497,166     $ 723,198  
Deferred income tax expense (benefit)     3,573       (22,397 )
Total   $ 500,739     $ 700,801  

 

F-60

 

 

The tax effects of temporary difference that give rise to the deferred tax assets as of December 31, 2019 and December 31, 2018 are $17,989 and $22,267, respectively. Deferred tax assets consist of as follow

 

    As of
September 30,
2019
    As of
December 31,
2018
 
    (Unaudited)        
Deferred tax assets:            
Allowance for doubtful accounts   $ 17,989     $ 22,267  
Net operating loss carryforwards:                
PRC     19,955       2,179  
HONG KONG     1,164       -  
      39,108       24,446  
Less valuation allowance     (21,119 )     (2,179 )
Total deferred tax assets   $ 17,989     $ 22,267  

 

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 MingZhu Management’s cumulative net operating loss (“NOL”) of approximately $83,000 as of September 30, 2019 which will expire in 2024. Management considers projected future losses outweighs other factors and made a full allowance of related deferred tax assets.

 

Reconciliation of effective income tax rate is as follows for the nine months ended September 30, 2019 and 2018:

 

    Nine Months Ended
September 30,
2019
    Nine Months Ended
September 30,
2018
 
    (Unaudited)     (Unaudited)  
PRC statutory tax rate     25 %     25 %
Effect of tax rate differential     4.5 %     -0.2 %
Valuation allowance deferred tax     1.3 %     0.0 %
Non-deductible items*     2.0 %     0.7 %
Effective tax rate     32.8 %     25.5 %

 

* Non-deductible items mainly arise from expenses not deductible for tax purposes primarily including professional fees in relation to capital market planning, amortization expenses of buildings and improvements.

 

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 September 30, 2019, the Company was obliged to pay the income tax of $881,740 and the late fees of $53,345 as the Company failed to pay the income tax for the year ended December 31, 2018 by May 31, 2019, the deadline for making such tax payment. The Company does not anticipate any significant increases or decreases in unrecognized tax benefits in the next twelve months from September 30, 2019.

 

Value added tax

 

All of the Company’s service revenues that are earned and received in the PRC are subject to a Chinese VAT at the rate of 9% starting in April 2019, at the rate of 10% starting in May 2018 to March 2019, at the rate of 11% in April 2018 and prior of the gross proceed or at a rate approved by the Chinese local government.

 

F-61

 

 

Taxes payable consisted of the following:

 

    September 30,
2019
    December 31,
2018
 
    (Unaudited)        
VAT taxes payable   $ 302,715     $ 434,401  
Income taxes payable     1,344,170       938,971  
Other taxes payable     82,766       24,136  
Total   $ 1,729,651     $ 1,397,508  

 

Note 13 – Shareholders’ equity

 

Ordinary shares

 

MingZhu Cayman was established under the laws of Cayman Islands on January 2, 2018. The authorized number of ordinary shares is 38,000,000 shares with a par value of approximate $0.001 (HKD 0.01) per ordinary share.

 

Share subscription receivables

 

Share subscription receivables represent unpaid capital contribution from the Company’s shareholders of $837,837 as of September 30, 2019 and December 31, 2018.

 

Statutory reserves

 

In accordance with the relevant PRC laws and regulations, the Group’s subsidiaries in the PRC are required to provide for certain statutory reserves, which are appropriated from net profit as reported in accordance with PRC accounting standards. The Group’s subsidiaries in the PRC are required to allocate at least 10% of their after-tax profits to the general reserve until such reserve has reached 50% of their respective registered capital. Appropriations to other types of reserves in accordance with relevant PRC laws and regulations are to be made at the discretion of the board of directors of each of the Group’s subsidiaries in the PRC. The statutory reserves are restricted from being distributed as dividends under PRC laws and regulations. The statutory reserves recorded by the Group’s subsidiaries in the PRC were $687,139 and $537,874 as of September 30, 2019 and December 31, 2018, respectively.

 

Restricted assets

 

As a result of these PRC laws and regulations and the requirement that distributions by the Group’s subsidiaries in the PRC can only be paid out of distributable profits reported in accordance with PRC accounting standards, the Group’s subsidiaries in the PRC are restricted from transferring a portion of their net assets to the Company. The restricted amounts include the paid-in capital and the statutory reserves of the Group’s subsidiaries in the PRC. The aggregate amount of paid-in capital and statutory reserves, which represented the amount of net assets of the Group’s subsidiaries in the PRC not available for distribution, was $3,374,926 and $3,225,661 as of September 30, 2019 and December 31, 2018, respectively.

 

Capital contributions

 

For the nine months ended September 30, 2019 shareholders contributed $0 to the Company. During the year ended December 31, 2018, the Company’s shareholders contributed $3,916,672 via cash and $743,017 via debt settlement.

 

F-62

 

 

Capital distribution

 

On March 29, 2018, 100% equity interests of MingZhu transferred to MingZhu HK. On the date of transaction, the Company distributed $3,630,448 to shareholders as a consideration of transferring MingZhu’s 100% equity interests from Mr. Jinlong Yang to MingZhu HK.

 

On November 10, 2017, 100% equity interests of MingZhu Pengcheng transferred to MingZhu. The Company distributed $439,477 to shareholders as a consideration of transferring MingZhu Pengcheng’s 100% equity interests from Mr. Jinlong Yang to MingZhu.

 

Note 14 – Commitments and Contingencies

 

Guarantee Commitments

 

In November 2017, MingZhu entered into guarantee agreements for a capital lease of $2,531,453 to a subcontractor. The guarantee period was from November 2017 to January 2022. In November 2017, MingZhu entered into a guarantee agreement in which MingZhu Logistics, a related party, guaranteed for the above-mentioned capital lease.

 

Lease Commitments

 

The Company entered into a lease for office space located in Shenzhen, Guangdong, China for the period from November 21, 2018 to November 20, 2023. The Company’s commitments for minimum lease payment under these operating leases as of September 30, 2019 are listed in section “Note 9 – Leases”.

 

Contingencies

 

From time to time, the Company is party to certain legal proceedings, as well as certain asserted and unasserted claims. A contract dispute exists between MingZhu, MingZhu Pengcheng and Shengxin Wang. According to the Civil Judgement issued by the Shenzhen Intermediate People’s Court on August 23, 2018, Shengxin Wang was ordered to pay $3,098 (RMB 21,303) and overdue interests thereof and pay $0.15 (RMB 1) as the consideration of the vehicles to MingZhu Pengcheng and after that, MingZhu Pengcheng and MingZhu should respectively assist to transfer ownership of one tractor and one trailer to Shengxin Wang. According to the Civil Decision of Guangdong Provincial Higher People’s Court issued on December 20, 2018, Shengxin Wang’s application for retrial of the above Civil Judgement was rejected. On March 22, 2019, the Shenzhen Yantian People’s Court issued an Enforcement Order to MingZhu and MingZhu Pengcheng, which ordered MingZhu and MingZhu Pengcheng to perform relevant obligations as required by the foresaid judgement or otherwise the judgement would be enforced by the court. On May 29, 2019, a cash balance equal to Shenxin Wang’s payment obligation was frozen in his bank account and meanwhile, Shengxin Wang took over the tractor from MingZhu Pengcheng. According to the inquiry notes taken by the Yantian People’s Court Enforcement Bureau on May 30, 2019, MingZhu has made preparation for handover of the trailer to Shengxin Wang. As of the date of this prospectus, Shengxin Wang has taken over the trailer, the balance half of the vehicles, from MingZhu, and the case has been concluded.

 

However, regarding the same dispute, Shengxin Wang filed another lawsuit against MingZhu Pengcheng. According to the Civil Indictment filed by Shengxin Wang (the plaintiff) on February 26, 2019, Shengxin Wang requested that MingZhu Pengcheng (the defendant) be ordered to compensate for the stoppage loss of $694,098 (RMB 4,772,269). The nature of the case was a property damage compensation dispute. According to the response notice issued by the Shenzhen Yantian People’s Court on March 20, 2019, the court has accepted this case. According to the Civil Judgment issued by the Yantian District People’s Court in Shenzhen City, Guangdong Province on August 30, 2019, the court ruled that MingZhu Pengcheng should pay damages in the amount of $29,627 (RMB 203,700) to Shengxin Wang and rejected Shengxin Wang’s other claims. MingZhu Pengcheng submitted an Appeal Petition to the Shenzhen Intermediate People’s Court on September 18, 2019, requesting a change in the judgment of first instance and changing the judgment so that MingZhu Pengcheng will not have to pay the damages to Shengxin Wang. MingZhu Pengcheng has paid the case acceptance fee. As the date of this prospectus, the case is pending for appeal court hearing.

 

F-63

 

 

On September 4, 2018, MingZhu received an arbitration award from the Shenzhen Arbitration Committee for Labor Disputes, which ruled that MingZhu was required to pay for worker compensation to Qing Tan, Xiangyang, Haiyang Shi, and Hanxiao Shi in the aggregate amount of $65,223 (RMB 448,440). Regarding the same dispute, MingZhu filed two lawsuits to the Shenzhen Yantian People’s Court, both of which were dismissed by the court. MingZhu appealled to the Shenzhen Intermediate People’s Court, both of which were also rejected. On December 21, 2018, the Shenzhen Yantian People’s Court issued an execution order which ruled that MingZhu’s property should be used to enforce its obligations under the foresaid arbitration award. On February 22, 2019, $74,961 (RMB 510,272) from MingZhu’s bank account was enforced by the court. Such amount involves the damages and other charges resulting from delayed performance under the foresaid arbitration award. MingZhu filed an execution dissidence to the Shenzhen Yantian People’s Court on March 8, 2019, which was dismissed by the court on April 16, 2019. According to the execution order issued by the Shenzhen Yantian People’s Court on June 14, 2019, MingZhu has performed all its obligations under the arbitration award. However, MingZhu has applied to the Shenzhen Intermediate People’s Court for a reconsideration on the dismissed execution dissidence. As of the date of the prospectus, the Shenzhen Intermediate People’s Court has not issued a decision on such request for reconsideration.

 

On August 22, 2019, Sujin Wei (the plaintiff) submitted a Civil Complaint to the Yangjiang Yangdong District People’s Court against China Pacific Property Insurance Co., Ltd. Shenzhen Branch, MingZhu and two other defendants. The complaint requested that China Pacific Property Insurance Co., Ltd. Shenzhen Branch shall make the death and disability compensation to the plaintiff in the amount of $15,999 (RMB 110,000) and compensate the plaintiff of $44,699 (RMB 307,328.02) within the third party liability insurance limit and also requested that defendants Shengming Zheng and MingZhu shall be jointly and severally liable for the foregoing claims, and the litigation fee in this case shall be borne by the four defendants. According to the response notice issued by the Yangjiang Yangdong District People’s Court on the September 18, 2019, this case has been filed on September 4, 2019. The court held a hearing of this case on October 31, 2019. As of the date of the prospectus, the court has not yet issued a judgement.

 

In accordance with ASC No. 450-20, “Loss Contingencies”, the Company will record accruals for above loss contingencies when it is probable that a liability has been incurred and the amount of loss can be reasonably estimated. There are no other material loss contingencies than above-mentioned ones for the nine months ended September 30, 2019 and 2018.

 

Note 15 – Subsequent events

 

The Company entered one loan agreement with a bank after September 30, 2019:

 

In September 2019, the Company entered into a one-year term line of credit agreement with Guangdong Nanyue Bank pursuant to which the Company may borrow up to $1,399,051 (RMB 10,000,000). The line of credit agreement entitles the Company to enter into several separate loan contracts under such line of credit. The Company utilized $699,526 (RMB 5,000,000) in September 2019, $279,810 (RMB 2,000,000) in November 2019 and $419,715 (RMB 3,000,000) in November 2019, respectively. For each withdraw from the line of credit, a separate loan agreement was entered into with a one-year term from the credit line withdraw date and the Company recorded these loans as short-term bank borrowings. As of the date of this prospectus, all available line of credit  has been utilized.

 

Note 16 – Condensed financial information of the parent company

 

The Company performed a test on the restricted net assets of consolidated subsidiary in accordance with Securities and Exchange Commission Regulation S-X Rule 4-08 (3), “General Notes to Financial Statements” 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 years presented. For the purpose of presenting parent only financial information, the Company records its investment in its subsidiary under the equity method of accounting. Such investment is presented on the separate condensed balance sheets of the Company as “Investment in subsidiary” and the income of the subsidiary is presented as “share of income of subsidiary”. Certain information and footnote disclosures generally included in financial statements prepared in accordance with U.S. GAAP have been condensed and omitted.

 

The Company did not have other commitments, long-term obligations, or guarantees as of September 30, 2019 and December 31, 2018.

 

F-64

 

 

PARENT COMPANY BALANCE SHEETS

 

    September 30,
2019
    December 31,
2018
 
    (Unaudited)    

(Unaudited)

 
ASSETS            
CURRENT ASSETS:            
Cash   $ 18,252     $ 123,060  
Other receivables     4,560,848       4,547,284  
Total current assets     4,579,100       4,670,344  
                 
OTHER ASSETS                
Investment in subsidiaries     4,574,315       3,834,687  
Total assets   $ 9,153,415     $ 8,505,031  
                 
LIABILITIES AND SHAREHOLDERS’ EQUITY                
                 
LIABILITIES   $ -     $ -  
                 
COMMITMENTS AND CONTINGENCIES     -       -  
                 
SHAREHOLDERS’ EQUITY                
                 
Ordinary shares: $0.001 par value, 38,000,000 shares authorized, 1,000 shares issued and outstanding as of September 30, 2019 and December 31, 2018     1       1  
Share subscription receivables     (837,837 )     (837,837 )
Additional paid-in capital     4,115,388       4,115,388  
Statutory reserves     687,139       537,874  
Retained earnings     5,697,408       4,820,640  
Accumulated other comprehensive loss     (508,684 )     (131,035 )
Total shareholders’ equity     9,153,415       8,505,031  
                 
Total liabilities and shareholders’ equity   $ 9,153,415     $ 8,505,031  

 

F-65

 

 

PARENT COMPANY STATEMENT OF INCOME AND COMPREHENSIVE INCOME

 

    For the Nine Months Ended
September 30,
 
    2019     2018  
    (Unaudited)     (Unaudited)  
EQUITY INCOME OF SUBSIDIARIES   $ 1,420,966     $ 2,043,854  
                 
COSTS AND EXPENSES                
General and Administrative expenses     394,933       128  
Total costs and expenses     394,933       128  
                 
INCOME FROM OPERATION     1,026,033       2,043,726  
                 
INCOME BEFORE INCOME TAXES     1,026,033       2,043,726  
                 
PROVISION FOR INCOME TAXES     -       -  
                 
NET INCOME     1,026,033       2,043,726  
                 
OTHER COMPREHENSIVE INCOME (LOSS)                
Foreign currency translation adjustment     (377,649 )     (408,795 )
COMPREHENSIVE INCOME   $ 648,384     $ 1,634,931  

 

F-66

 

 

PARENT COMPANY STATEMENT OF CASH FLOWS

 

    For the Nine Months Ended
September 30,
 
    2019     2018  
    (Unaudited)     (Unaudited)  
Cash flows from operating activities:            
Net income   $ 1,026,033     $ 2,043,726  
Adjustments to reconcile net income to cash used in operating activities:                
Equity income of subsidiaries     (1,420,966 )     (2,043,854 )
Changes in operating assets and liabilities                
Others payable and accrued liabilities     -       (161,191 )
Net cash used in operating activities     (394,933 )     (161,320 )
                 
Cash flows from investing activities:                
Net cash provided by investing activities:                
                 
Cash flows from financing activities:                
Amounts advanced from related parties     290,253       (3,634,636 )
Capital contribution     -       3,916,672  
Net cash provided by financing activities             282,036  
                 
Effect of exchange rate change on cash     (128 )     2,474  
                 
Net increase in cash     (104,808 )     123,190  
                 
Cash at beginning of the period     123,060       -  
                 
Cash at end of the period   $ 18,252     $ 123,190  

 

F-67

 

 

PART II
INFORMATION NOT REQUIRED IN PROSPECTUS

 

ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.

 

Cayman Islands law does not limit the extent to which a company’s articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime. Under our post-offering memorandum and articles of association, which will become effective immediately prior to the completion of this offering, to the fullest extent permissible under Cayman Islands law every director and officer of our company shall be indemnified against all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by him in connection with the execution or discharge of his duties, powers, authorities or discretions as a director or officer of our company, including without prejudice to the generality of the foregoing, any costs, expenses, losses or liabilities incurred by him in defending (whether successfully or otherwise) any civil proceedings concerning our company or its affairs in any court whether in the Cayman Islands or elsewhere.

 

Pursuant to the employment agreements with our executive officers, we will agree to indemnify our executive officers against certain liabilities and expenses incurred by such persons in connection with claims made by reason of their being such an executive officer.

 

The form of underwriting agreement to be filed as Exhibit 1.1 to this registration statement will also provide for indemnification of us and our officers and directors.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to 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.

 

ITEM 7. RECENT SALES OF UNREGISTERED SECURITIES.

 

In January 2018, we issued one ordinary share for a purchase price of HK $0.01 (approximately $0.001) to Ogier Global Subscriber (Cayman) Limited. Such share was subsequently transferred to Alpha Global (BVI) Limited a purchase price of HK $0.01 (approximately $0.001) in January 2018. In April 2018, in connection with our restructuring, we issued an aggregate of 999 ordinary shares to the then shareholders of MingZhu in exchange for the transfer of the equity interest of MingZhu by such shareholders to MingZhu HK. The foregoing issuances were exempt from registration under the Securities Act pursuant to Section 4(a)(2) thereof regarding transactions not involving a public offering. No underwriters were involved in these issuances of ordinary shares. Other than disclosed herein, we did not issue any securities in the past three years.

 

ITEM 8. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.

 

a) Exhibits

 

See Exhibit Index beginning on page II-5 of this registration statement.

 

The agreements included as exhibits to this registration statement contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties were made solely for the benefit of the other parties to the applicable agreement and (i) were not intended to be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; (ii) may have been qualified in such agreement by disclosure that was made to the other party in connection with the negotiation of the applicable agreement; (iii) may apply contract standards of “materiality” that are different from “materiality” under the applicable securities laws; and (iv) were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement.

 

II-1

 

 

We acknowledge that, notwithstanding the inclusion of the foregoing cautionary statements, we are responsible for considering whether additional specific disclosure of material information regarding material contractual provisions is required to make the statements in this registration statement not misleading.

 

b) Financial Statement Schedules

 

Schedules have been omitted because the information required to be set forth therein is not applicable or is shown in the Consolidated Financial Statements or the Notes thereto.

 

ITEM 9. UNDERTAKINGS.

 

The undersigned registrant hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

i. To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

 

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” at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.

 

(5) That, 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.

 

(6) 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-2

 

 

(7) That, for the purpose of determining liability under the Securities Act to any purchaser:

 

Each prospectus filed by the Registrant 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.

 

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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 

 

(8) For the purposes of determining liability under the Securities Act of 1933 to any purchaser in the initial distributions 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.

 

II-3

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Shenzhen, Guangdong, People’s Republic of China, on December 18, 2019.

 

  MingZhu Logistics Holdings Limited
   
  By:    /s/ Jinlong Yang
      Name:   Jinlong Yang
      Title:   Chief Executive Officer

 

Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature   Title   Date
         
 /s/ Jinlong Yang   Chief Executive Officer and Director    December 18, 2019
Jinlong Yang   (principal executive officer)    
         
 /s/ Jingwei Zhang   Chief Financial Officer    December 18, 2019
Jingwei Zhang   (principal financial and accounting officer)    
         
/s/ Zhuo Wang   Director    December 18, 2019
Zhuo Wang        

  

SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES

 

Pursuant to the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of Mingzhu Logistics Holding Limited, has signed this registration statement or amendment thereto in Newark, Delaware on  December 18, 2019.

 

  Puglisi & Associates
   
  By:  /s/ Donald J. Puglisi
    Name: Donald J. Puglisi
    Title: Managing Director

 

II-4

 

 

EXHIBIT INDEX

 

Exhibit No.   Description of document
     
1.1**   Form of Underwriting Agreement
3.1*   Memorandum of Association of the Registrant
3.2*   Articles of Association of the Registrant
3.3***   Amended and Restated Memorandum of Association of the Registrant
4.1**   Form of Underwriters’ Warrant
5.1***   Opinion of Ogier regarding the validity of ordinary shares being registered.
5.2***   Opinion of Jingtian & Gongcheng Law Firm regarding PRC legal matters.
8.1***   Opinion of Ogier regarding certain Cayman Islands tax matters (included in Exhibit 5.1)
10.1*   English translation of Small Business Credit Agreement, dated as of October 27, 2018, by and between Postal Savings Bank of China and Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.
10.2*   English translation of Small Business Working Capital Loan Agreement, dated as of October 27, 2018, by and between Postal Savings Bank of China and Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.
10.3*   English translation of Comprehensive Credit Agreement, dated as of April 29, 2019, by and between Zhujiang Rural Bank and Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.
10.4*   English translation of Enterprise Loan Agreement, dated as of April 29, 2019, Zhujiang Rural Bank and Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.
10.5*   English translation of Working Capital Loan Agreement, dated as of April 16, 2019, by and between Industrial Bank and Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.
10.6*   English translation of Middle and Small Enterprise Business Credit Agreement, dated as of December 12, 2018, by and between Shenzhen Yangang Mingzhu Freight Industry Co., Ltd. and Bank of China
10.7*   English translation of Loan Application Letter from Shenzhen Yangang Mingzhu Freight Industry Co., Ltd. to Bank of China, dated December 18, 2018
10.8*   English translation of Loan Application Letter from Shenzhen Yangang Mingzhu Freight Industry Co., Ltd. to Bank of China, dated March 8, 2019
10.9**   English translation of Maximum Credit Agreement, dated as of September 12, 2019, by and between Guangdong Nanyue Bank and Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.
10.10**   English translation of Working Capital Loan Agreement, dated as of September 29, 2019, by and between Guangdong Nanyue Bank and Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.
10.11**   English translation of Working Capital Loan Agreement, dated as of November 14, 2019, by and between Guangdong Nanyue Bank and Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.
10.12***   Form of Indemnification Escrow Agreement
10.13**   Form of Employment Agreement between the Registrant and its executive officers
10.14**   Form of Director Letter Agreement between the Registrant and its directors
10.15**   English translation of Working Capital Loan Agreement dated November 27, 2019, by and between Guangdong Nanyue Bank and Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.
21.1*   List of Subsidiaries of the Registrant
23.1**   Consent of Friedman LLP
23.2***   Consent of Ogier (included in Exhibits 5.1 and 8.1)
23.3***   Consent of Jingtian & Gongcheng Law Firm (included in Exhibit 5.2)
24.1*   Power of Attorney (included in signature page hereto)
99.1*   Consent of  Mikael Charette
99.2*   Consent of  Yanhong Xue
99.3*   Consent of  To Wai Suen
99.4*   Consent of Frost & Sullivan

 

* Previously filed
** Filed herewith
*** To be filed by amendment

 

 

 

II-5

 

Exhibit 1.1

 

UNDERWRITING AGREEMENT

 

[●], 2019

ViewTrade Securities, Inc.

7280 W. Palmetto Park Road

Suite 310

Boca Raton, Florida 33433

 

As Representative of the Underwriters named on Annex A hereto

 

Ladies and Gentlemen:

 

The undersigned, MingZhu Logistics Holdings Limited 明珠货运控股有限公司, a company limited by shares incorporated under the laws of the Cayman Islands (the “Company”), hereby confirms its agreement (this “Agreement”) with the several underwriters (such underwriters, for whom ViewTrade Securities, Inc. is acting as representative (in such capacity, the “Representative,” if there are no underwriters other than the Representative, reference to multiple underwriters shall be disregarded and the term Representative as used herein shall have the same meaning as underwriter, the “Underwriters” and each an “Underwriter”) to issue and sell to the Underwriters an aggregate of [●] ordinary shares, $0.001 par value per share (“Ordinary Shares”), of the Company (the “Firm Shares”). The Company has also granted to the several Underwriters an option to purchase up to [●] additional Ordinary Shares, on the terms and for the purposes set forth in Section 1(b) hereof (the “Option Shares”). The Firm Shares and any Option Shares purchased pursuant to this Agreement are herein collectively called the “Securities.” The offering and sale of securities contemplated by this Agreement is referred to herein as the “Offering.”

 

(1) Purchase of Securities/Consideration.

 

a. Firm Shares. On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the Underwriters, severally and not jointly, an aggregate of [●] Firm Shares at a purchase price (net of discount and commissions) of $[●] per share. The Underwriters, severally and not jointly, agree to purchase from the Company the Firm Shares set forth opposite their respective names on Annex A attached hereto and made a part hereof.

 

b. Option Shares. On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company hereby grants to the several Underwriters an option to purchase, severally and not jointly, all or any portion of the Option Shares at the same purchase price as the Firm Shares. The option granted hereunder may be exercised in whole or in part at any time (but not more than once) within 45 days after the date of the Prospectus (as defined below) upon notice (confirmed in writing) by the Representative to the Company setting forth the aggregate number of Option Shares as to which the Underwriters are exercising the option and the date and time, as determined by the Representative, when the Option Shares are to be delivered, but in no event earlier than the First Closing Date (as defined below) nor earlier than the second Business Day (as defined below) or later than the tenth Business Day after the date on which the option shall have been exercised. The number of Option Shares to be purchased by each Underwriter shall be the same percentage of the total number of Option Shares to be purchased by the Underwriters as the number of Firm Shares to be purchased by such Underwriter is of the total number of Firm Shares to be purchased by the Underwriters, as adjusted by the Representative in such manner as the Representative deems advisable to avoid fractional shares. No Option Shares shall be sold and delivered unless the Firm Shares previously have been, or simultaneously are, sold and delivered.

 

c. Commission and Expenses. In consideration of the services to be provided hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the number of Securities purchased) of (i) an underwriting discount equal to eight percent (8%)1 of the aggregate gross proceeds raised in the Offering (the “Underwriting Fee”), and (ii) a non-accountable expense allowance of one percent (1%) of the gross proceeds of the Offering. In addition, the Company shall reimburse the Representative for certain out-of-pocket accountable expenses, as set forth in Section 4(i), which reimbursement shall be reduced by any Advances (as defined below) previously paid to the Representative. To the extent that the Underwriters’ incurred expenses are less than the Advances previously paid, the Underwriters will return to the Company that portion of the Advances not offset by out-of-pocket accountable expenses.

 

 

1 The discount percentage will be seven and a half (7.5%) if the gross proceeds of the Offering is more than $15,000,000.

 

1

 

 

d. Representative’s Warrant. The Company hereby agrees to issue to the Representative (and/or its designees) on the First Closing Date warrants to purchase such number of Ordinary Shares equal to ten percent of the Firm Shares issued at the Closing (the “Representative’s Warrant”). The Representative’s Warrant may be purchased in cash or via cashless exercise, shall be exercisable for a period of five years from the Effective Date (as defined below) of the Registration Statement (as defined below) and will terminate on the fifth anniversary of the Effective Date of the Registration Statement. The exercise price of the Representative’s Warrant is equal to one hundred and fifteen percent of the price of the initial public offering price of a Firm Share. The Representative’s Warrant and the Ordinary Shares issuable upon exercise of the Representative’s Warrant 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), neither the Representative’s Warrant nor any of the Ordinary Shares issued upon exercise of the Representative’s Warrant 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 date of effectiveness of the Registration Statement pursuant to which the Representative’s Warrant is being issued, subject to certain exceptions. 

 

(2) Delivery and Payment.

 

a. Delivery of and Payment for Securities. Delivery of and payment for the Firm Shares shall be made at 10:00 A.M., Eastern time, on [●], 2019 or at such other time as shall be agreed upon in writing by the Representative and the Company, and, with respect to the Option Shares, 10:00 A.M., Eastern time, on the date specified by the Representative in the written notice given by the Representative of the Underwriters’ election to purchase such Option Shares, or at such other time as shall be agreed upon in writing by the Representative and the Company. The hour and date of delivery of and payment for the Firm Shares is called the “First Closing Date,” and the time and date for delivery of the Option Shares, if not the First Closing Date, is called a “Second Closing Date,” and each such closing of the payment of the purchase price for, and delivery of the Securities is referred to herein as a “Closing.” Each Closing shall be at the offices of the Representative or at such other place as shall be agreed upon by the Representative and the Company, and each Closing may be undertaken by remote electronic exchange of Closing documentation. Payment for the Securities shall be made on the applicable Closing Date by wire transfer in Federal (same day) funds upon delivery to the Representative of the Securities through the full fast transfer facilities of the Depository Trust Company (the “DTC”) for the account of the Underwriters. The Securities shall be registered in such names and in such denominations as the Representative may request in writing at least two Business Days prior to the applicable Closing Date. The Company shall not be obligated to sell or deliver the Securities to be purchased on such Closing Date except upon tender of payment by the Representative for all such Securities.

 

b. Escrow Agreement. Concurrently with the execution and delivery of this Agreement, the Company, the Representative and __________________, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement (the “Escrow Agreement”), pursuant to which $500,000 in proceeds from the Offering shall be deposited by the Company at Closing in an escrow account (the “Escrow Account”). All remaining funds in the Escrow Account that are not subject to an indemnification claim as of the 24-month period following the First Closing Date will be returned to the Company in accordance with the terms of the Escrow Agreement. The Company shall pay the reasonable fees and expenses of the Escrow Agent.

 

2

 

 

(3) Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, each of the Underwriters that, as of the date hereof and as of the First Closing Date and the Second Closing Date (as if made at such Closing Date):

 

a. Filing of Registration Statement. The Company has filed with the Commission a registration statement, and an amendment or amendments thereto, on Form F-1 (File No. 333-233992), including any related prospectus or prospectuses, for the registration of the Securities under the Securities Act, which registration statement and amendment or amendments have been prepared by the Company in conformity with the requirements of the Securities Act. Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration statement became effective (including the Preliminary Prospectus included in the registration statement, financial statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to be a part thereof as of the Effective Date pursuant to paragraph (b) of Rule 430A of the Securities Act (the “Rule 430A Information”), is referred to herein as the “Registration Statement.” If the Company files any registration statement pursuant to Rule 462(b) of the Securities Act, then after such filing, the term “Registration Statement” shall include such registration statement filed pursuant to Rule 462(b). The Registration Statement has been declared effective by the Commission on the date hereof.

 

Each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “Preliminary Prospectus.” The Preliminary Prospectus, subject to completion and filed with the Commission on [●], 2019, that was included in the Registration Statement immediately prior to the Applicable Time (as defined below) is hereinafter called the “Pricing Prospectus.” The final prospectus in the form first furnished to the Underwriters for use in the Offering is hereinafter called the “Prospectus.” Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement.

 

For purposes of this Agreement:

 

Applicable Time” means [●] p.m., Eastern Time, on [●], 2019.

 

Business Day” means any day other than a Saturday, a Sunday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York.

 

Commission” means the U.S. Securities and Exchange Commission.

 

Effective Date” means each date and time that the Registration Statement, any post-effective amendment or amendments thereto became or becomes effective.

 

Execution Time” means the date and time that this Agreement is executed and delivered by the parties to this Agreement.

 

Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act (“Rule 433”), including any “free writing prospectus” (as defined in Rule 405 under the Securities Act) relating to the Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the Offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).

 

Marketing Materials” means written roadshow materials prepared by or on behalf of the Company and used or referred to by the Company or with the Company’s express consent.

 

Offering” means the offering and sale of the Securities.

 

Pricing Disclosure Package” means the Pricing Prospectus, any Permitted Free Writing Prospectuses set forth on Schedule II and the information included on Schedule I hereto, all considered together.

 

3

 

 

Registration Statement” means the registration statement referred to in Section 3(a) hereof including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430A, as amended, on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the First Closing Date, shall also mean such registration statement as so amended.

 

Rule 158,” “Rule 163,” “Rule 164,” “Rule 172,” “Rule 405,” “Rule 415,” “Rule 424,” “Rule 430A,” “Rule 430B” and “Rule 433” refer to such rules under the Securities Act.

 

SEC Filings” means any filings made by the Company with the Commission.

 

Trading Day” means any day on which the Exchange is open for trading.

 

Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

b. Disclosures in Registration Statement.

 

i. Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the requirements of the Securities Act. Each Preliminary Prospectus, including the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the requirements of the Securities Act. Each Preliminary Prospectus delivered to the Underwriters for use in connection with this Offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”), except to the extent permitted by Regulation S-T;

 

ii. Neither the Registration Statement nor any amendment thereto, at the time each part thereto became effective pursuant to the Securities Act, as of the date of this Agreement, at the First Closing Date or at the Second Closing Date, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided however that this representation and warranty shall not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters by the Representative expressly for use in the Registration Statement, the Pricing Prospectus or the Prospectus or any amendment thereof or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf of the Underwriters consists solely of (i) the name of the Underwriters contained on the cover page of the Pricing Prospectus and Prospectus and (ii) the sub-sections titled “Commissions and Expenses”, “Underwriter’s Warrant”, “Indemnification; Indemnification Escrow”, “Lock-Up Agreement”, “Pricing of the Offering”, “Electronic Offer, Sale and Distribution of Securities”, “Price Stabilization, Short Positions and Penalty Bids”, “Passive Market Making”, “Potential Conflicts of Interest”, “Other Relationships”, “Selling Restrictions”, and “Electronic Distribution” in each case under the caption “Underwriting” in the Prospectus (the “Underwriter Information”);

 

iii. The Pricing Disclosure Package, as of the Applicable Time, as of the date of this Agreement, and at the First Closing Date and the Second Closing Date, did not, does not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to the Underwriter Information. Each Issuer Free Writing Prospectus does not conflict with the information contained in the Registration Statement, the Preliminary Prospectus, the Pricing Prospectus or the Prospectus, and each Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Prospectus as of the Applicable Time, did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to the Underwriter Information; and

  

4

 

 

iv. Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), or at the First Closing Date or the Second Closing Date, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to the Underwriter Information.

 

c. Disclosure of Agreements. The agreements and documents described in the Registration Statement, the Pricing Disclosure Package and the Prospectus conform in all material respects to the descriptions thereof contained therein and there are no agreements or other documents required by the Securities Act to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which any of the Company or its Subsidiaries (as defined below) is a party or by which any of them is or may be bound or affected and (i) that is referred to in the Registration Statement, the Pricing Disclosure Package or the Prospectus, or (ii) that is material to the business of the Company and its Subsidiaries, has been duly authorized and validly executed by the Company or a Subsidiary, as applicable, is in full force and effect in all material respects and is enforceable against the Company or such Subsidiary, as applicable, and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. None of such agreements or instruments has been assigned by any of the Company or its Subsidiaries, and neither the Company or such Subsidiary, as applicable, nor, to the Company’s knowledge, any other party is in default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a default thereunder. To the best of the Company’s knowledge, performance by the Company or a Subsidiary, as applicable, of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental authority, agency or court, domestic or foreign, having jurisdiction over the Company or its Subsidiaries or any of their respective assets or businesses, including those relating to environmental laws and regulations, except to the extent that the violation would not result in a Material Adverse Change (as defined below).

 

d. Good Standing. The Company has been duly formed, is validly existing as a company limited by shares in good standing under the laws of the Cayman Islands, has the corporate power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not result in a Material Adverse Change.

 

e. Subsidiaries. Each of the Company’s direct and indirect subsidiaries (each a “Subsidiary” and collectively, the “Subsidiaries”) has been identified on Schedule III hereto. Each of the Subsidiaries has been duly formed, is validly existing as an entity in good standing under the laws of the jurisdiction of its formation, has the corporate power and authority to own its property and to conduct its business as described in the Pricing Disclosure Package and the Prospectus; all of the outstanding equity interests of each Subsidiary have been duly and validly authorized and issued, are owned directly or indirectly by the Company, are paid according to the applicable laws and the articles of association and non-assessable and, except as described in the Pricing Disclosure Package and the Prospectus, are free and clear of all liens, encumbrances, equities or claims. None of the outstanding share capital or equity interest in any Subsidiary was issued in violation of preemptive or similar rights of any security holder of such Subsidiary. All of the constitutive or organizational documents of each of the Subsidiaries comply with the requirements of applicable laws of its jurisdiction of incorporation or organization and are in full force and effect. Apart from the Subsidiaries, the Company has no direct or indirect subsidiaries or any other company over which it has direct or indirect effective control, except as described in the Pricing Disclosure Package and the Prospectus.

  

5

 

 

f. [Reserved]

 

g. Prior Securities Transactions. No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of, any person or persons controlling, controlled by or under common control with the Company, except as disclosed in the Pricing Disclosure Package and the Preliminary Prospectus.

 

h. Regulations.

 

i. The disclosures in the Pricing Disclosure Package and the Prospectus concerning the effects of federal, state, local and all foreign regulation on the Offering and the Company’s business as currently contemplated are correct in all respects and no other such regulations are required to be disclosed pursuant to the Securities Act in the Registration Statement, the Pricing Disclosure Package or the Prospectus which are not so disclosed.

 

ii. Except as described in the Pricing Disclosure Package and the Prospectus, each of the Company and its Subsidiaries has complied, and has taken all steps to ensure compliance, in material respects, by each of its shareholders, directors and officers that is, or is directly or indirectly owned or controlled by, a PRC resident or citizen with any applicable rules and regulations of the relevant PRC government agencies in effect on the applicable Closing Date (including but not limited to the Ministry of Commerce, the National Development and Reform Commission, the China Securities Regulatory Commission (“CSRC”) and the State Administration of Foreign Exchange) (the “SAFE”) relating to overseas investment by PRC residents and citizens (the “PRC Overseas Investment and Listing Regulations”), including, requesting each such person that is, or is directly or indirectly owned or controlled by, a PRC resident or citizen to complete any registration and other procedures required under applicable PRC Overseas Investment and Listing Regulations (including any applicable rules and regulations of the SAFE).

 

iii. The Company is aware of and has been advised as to the content of the Rules on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors and any official clarifications, guidance, interpretations or implementation rules in connection with or related thereto in effect on the applicable Closing Date (the “PRC Mergers and Acquisitions Rules”) jointly promulgated by the Ministry of Commerce, the State Assets Supervision and Administration Commission, the State Tax Administration, the State Administration of Industry and Commerce, the CSRC and the State Administration of Foreign Exchange on August 8, 2006, as amended on June 22, 2009, including the provisions thereof which purport to require offshore special purpose entities formed for listing purposes and controlled directly or indirectly by PRC companies or individuals to obtain the approval of the CSRC prior to the listing and trading of their securities on an overseas stock exchange. The Company has received legal advice specifically with respect to the PRC Mergers and Acquisitions Rules from its PRC counsel, and the Company understands such legal advice. In addition, the Company has communicated such legal advice in full to each of its directors that signed the Registration Statement and each such director has confirmed that he or she understands such legal advice. Except as described in the Pricing Disclosure Package and the Prospectus, the issuance and sale of the Securities, the listing and trading of the Securities on the Exchange (as defined below) and the consummation of the transactions contemplated by this Agreement, the Escrow Agreement and the Representative’s Warrant do not require the prior approval of the CSRC.

 

i. Absence of Certain Events. Except as contemplated in the Pricing Disclosure Package and in the Prospectus, subsequent to the respective dates as of which information is given in the Pricing Disclosure Package, neither the Company nor any of its Subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its share capital; and there has not been any change in the share capital (other than a change in the number of outstanding Ordinary Shares of the Company due to the issuance of shares upon the exercise of outstanding options or warrants or conversion of convertible securities), or any material change in the short-term or long-term debt (other than as a result of the conversion of convertible securities of the Company), or any issuance of options, warrants, convertible securities or other rights to purchase the share capital of the Company or any of its Subsidiaries, or any material adverse change in the general affairs, condition (financial or otherwise), business, prospects, management, properties, operations or results of operations of the Company and its Subsidiaries, taken as a whole (“Material Adverse Change”), or any development which could reasonably be expected to result in any Material Adverse Change.

  

6

 

 

i. Independent Accountants. Friedman LLP (the “Auditor”), which has expressed its opinion with respect to the financial statements and schedules filed as a part of the Registration Statement and included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, is (i) an independent public accounting firm within the meaning of the Securities Act, (ii) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”)) and (iii) not in violation of the auditor independence requirements of the Sarbanes-Oxley Act.

 

j. Financial Statements, etc. The financial statements, including the notes thereto and supporting schedules included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, comply in all material respects with the requirements of the Securities Act and fairly present the financial position and the results of operations of the Company and its Subsidiaries at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”), consistently applied throughout the periods involved (provided that unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material in the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. Except as included therein, no historical or pro forma financial statements are required to be included in the Registration Statement, the Pricing Disclosure Package or the Prospectus under the Securities Act. All disclosures contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission), if any, comply with Item 10 of Regulation S-K of the Securities Act. Each of the Registration Statement, the Pricing Disclosure Package and the Prospectus discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company and its Subsidiaries with unconsolidated entities or other persons that may have a material current or future effect on the financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses of the Company and its Subsidiaries.

 

k. Capitalization; the Securities; Registration Rights. All of the issued and outstanding shares of the share capital of the Company, including the outstanding Ordinary Shares, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriters), and the holders thereof are not subject to personal liability by reason of being such holders; the Securities which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable, and the holders thereof will not be subject to personal liability by reason of being such holders; and the share capital of the Company, including the Ordinary Shares, conforms to the description thereof in the Registration Statement, in the Pricing Disclosure Package and in the Prospectus. Except as otherwise stated in the Registration Statement, in the Pricing Disclosure Package and in the Prospectus, (i) there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any Ordinary Shares pursuant to the Company’s charter, by-laws (or other organizational documents) or any agreement or other instrument to which the Company is a party or by which the Company is bound, (ii) neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Ordinary Shares or other securities of the Company (collectively “Registration Rights”) and (iii) any person to whom the Company has granted Registration Rights has agreed not to exercise such rights until after the date that is 180 days after the date of the Prospectus. The Company has an authorized and outstanding capitalization as set forth in the Registration Statement, in the Pricing Disclosure Package and in the Prospectus under the caption “Capitalization.” The Ordinary Shares (including the Securities) conform in all material respects to the description thereof contained in the Pricing Disclosure Package and the Prospectus.

  

7

 

 

l. Validity and Binding Effect of Agreements. Each of this Agreement, the Escrow Agreement and the Representative’s Warrant has been duly and validly authorized by the Company, and, when executed and delivered, will constitute, a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; except (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

 

m. No Conflicts, etc. The execution, delivery and performance by the Company of this Agreement, the Escrow Agreement and the Representative’s Warrant, the consummation by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both: (i) result in a breach of, or conflict with any of the terms and provisions of, or constitute a default under, or result in the creation, modification, termination or imposition of any lien, charge or encumbrance upon any property or assets of any of the Company and the Subsidiaries pursuant to the terms of any agreement or instrument to which any of the Company or the Subsidiaries, as applicable, is a party; (ii) result in any violation of the provisions of the Company’s Memorandum and Articles of Association (as the same may be amended or restated from time to time, the “Organizational Documents”); or (iii) violate any existing applicable law, rule, regulation, judgment, order or decree of any governmental authority as of the date hereof, except in the case of (i) or (iii), such as would not result in a Material Adverse Change.

 

n. No Defaults; Violations. No default exists, and no event has occurred which, with notice or lapse of time or both, would constitute a default, in the due performance and observance of any term, covenant or condition of any license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which any of the Company or its Subsidiaries is a party or by which any of the Company or its Subsidiaries may be bound or to which any of their respective properties or assets is subject. None of the Company or its Subsidiaries is (i) in violation of any term or provision of its constitutive or organizational documents, or (ii) in violation of any franchise, license, permit, applicable law, rule, regulation, judgment or decree of any governmental authority, except such as would not result in a Material Adverse Change.

 

o. Corporate Power; Licenses; Consents.

 

i. Conduct of Business. Each of the Company and its Subsidiaries has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business as described in the Pricing Disclosure Package and the Prospectus. 

 

ii. Transactions Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement, the Escrow Agreement and the Representative’s Warrant and to carry out the provisions and conditions hereof and thereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consent, authorization or order of, and no filing with, any court, government agency or other body is required for the valid issuance, sale and delivery of the Securities and the consummation of the transactions and agreements contemplated by this Agreement and the Escrow Agreement and as contemplated by the Pricing Disclosure Package and the Prospectus, except with respect to applicable federal and state securities laws and the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”).

 

p. D&O Information. To the Company’s knowledge and upon its diligence investigation, all information concerning the Company’s directors, officers and principal shareholders described in the Pricing Disclosure Package and the Prospectus, is true and correct in all material respects and the Company has not become aware of any information which would cause such information to become materially inaccurate or incorrect.

  

8

 

 

q. Litigation; Governmental Proceedings. Except as set forth in the Pricing Disclosure Package and in the Prospectus, there is not pending or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding (i) to which the Company or any Subsidiary is a party or (ii) which has as the subject thereof any officer or director of, any employee benefit plan sponsored or any property or assets owned or leased by, the Company or any Subsidiary before or by any court or governmental authority, or any arbitrator, which, individually or in the aggregate, might result in any Material Adverse Change, or would materially and adversely affect the ability of the Company to perform its obligations under this Agreement, the Escrow Agreement and the Representative’s Warrant or which are otherwise material in the context of the sale of the Securities. There are no current or, to the knowledge of the Company, pending, legal, governmental or regulatory actions, suits or proceedings (x) to which the Company or any Subsidiary is subject or (y) which has as the subject thereof any officer or director of, any employee plan sponsored by or any property or assets owned or leased by, the Company or any Subsidiary, that are required to be described in the Registration Statement, Pricing Disclosure Package and Prospectus and that have not been so described.

 

r. Insurance. Except as disclosed in the Pricing Disclosure Package and the Prospectus, each of the Company and its Subsidiaries carries, or is covered by, insurance from insurers in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries; all policies of insurance and any fidelity or surety bonds insuring any of the Company or its Subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; each of the Company and its Subsidiaries is in compliance with the terms of such policies and instruments in all material respects; there are no claims by any of the Company or its Subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; none of the Company or its Subsidiaries has been refused any insurance coverage sought or applied for; and none of the Company or its Subsidiaries has reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not result in a Material Adverse Change.

 

s. Transactions Affecting Disclosure to FINRA.

 

i. Finder’s Fees. Except as described in the Pricing Disclosure Package and the Prospectus, there are no claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, broker’s, agent’s, consulting or origination fee by the Company or any Subsidiary with respect to the sale of the Securities hereunder or any other arrangements, agreements or understandings of the Company or any Subsidiary or, to the Company’s knowledge, any of its shareholders that may affect the Underwriters’ compensation, as determined by FINRA.

 

ii. Payments Within Twelve Months. Except as described in the Pricing Disclosure Package and the Prospectus, none of the Company or its Subsidiaries has made any direct or indirect payments (in cash, securities or otherwise) to: (A) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital to the Company; (B) any FINRA member; or (C) any person or entity that has any direct or indirect affiliation or association with any FINRA member, within the twelve months prior to the Effective Date, other than the payment to the Underwriters as provided hereunder in connection with the Offering.

 

iii. Use of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its affiliates, except as specifically authorized herein.

 

iv. FINRA Affiliation. There are no affiliations or associations between (A) any member of the FINRA and (B) the Company or any of its Subsidiaries or any of their respective officers, directors or, to the knowledge of the Company, 5% or greater security holders or, to the knowledge of the Company, any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date that the Registration Statement was initially filed with the Commission.

  

9

 

 

v. Information. All information provided by the Company in its FINRA questionnaire to the Underwriters’ counsel specifically for use by the Underwriters’ counsel in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct and complete in all material respects. 

 

t. Foreign Corrupt Practices Act. Neither the Company nor any of its Subsidiaries or their respective affiliates, nor any director or officer, nor, to the Company’s knowledge, any employee, agent or representative of the Company or of any of its Subsidiaries or their respective affiliates, has (A) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (B) taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; or (C) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit; and the Company and its Subsidiaries and their respective affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.

 

u. Compliance with OFAC.

 

i. None of the Company or its Subsidiaries, nor any director, officer or employee thereof, nor, to the Company’s knowledge, any agent, affiliate or representative of any of the Company or its Subsidiaries, is an individual or entity that is, or is owned or controlled by an individual or entity that is:

 

A. the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor

 

B. located, organized or resident in a country or territory that is the subject of Sanctions (including, Burma/Myanmar, Iran, Libya, North Korea, Sudan and Syria).

 

ii. The Company will not, directly or indirectly, use the proceeds of the Offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity:

 

A. to fund or facilitate any activities or business of or with any individual or entity or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or

 

B. in any other manner that will result in a violation of Sanctions by any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise).

 

iii. For the past five years, none of the Company or its Subsidiaries has knowingly engaged in, and is now knowingly engaged in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.

 

v. Money Laundering Laws. None of the Company or its Subsidiaries, their respective affiliates nor any of their respective officers, directors, supervisors, managers, agents, or employees, has violated, the Company’s participation in the Offering will not violate, and the Company and its Subsidiaries have instituted and maintain policies and procedures designed to ensure continued compliance with, each of the following laws: (A) anti-bribery laws, including but not limited to, any applicable law, rule, or regulation of any locality, including but not limited to any law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act 2010, or any other law, rule or regulation of similar purposes and scope or (B) anti-money laundering laws, including but not limited to, applicable federal, state, international, foreign or other laws, regulations or government guidance regarding anti-money laundering, including, Title 18 US. Code section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur, all as amended, and any Executive order, directive, or regulation pursuant to the authority of any of the foregoing, or any orders or licenses issued thereunder.

  

10

 

 

w. Lock-Up Agreements. Schedule IV hereto contains a complete and accurate list of the Company’s officers, directors and each beneficial owner (5% or greater holder) of the Company’s outstanding Ordinary Shares (or securities convertible or exercisable into Ordinary Shares) (collectively, the “Lock-Up Parties”). The Company has caused each of the Lock-Up Parties to deliver to the Representative an executed Lock-Up Agreement, in the form attached hereto as Exhibit A (the “Lock-Up Agreement”), prior to the execution of this Agreement. The Company will enforce the terms of each Lock-Up Agreement and issue stop-transfer instructions to its transfer agent and registrar for the Ordinary Shares with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement. If the Representative, in its sole discretion, agrees to release or waive the restrictions of any Lock-Up Agreement between an officer or director of the Company and the Representative and provides the Company with notice of the impending release or waiver at least three Business Days before the effective date of such release or waiver, the Company agrees to announce the impending release or waiver by means of a press release substantially in the form of Exhibit B hereto, issued through a major news service, at least two Business Days before the effective date of the release or waiver. 

 

x. Related Party Transactions. There are no business relationships or related party transactions involving the Company or any of its Subsidiaries or any other person required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that have not been described as required.

 

y. Sarbanes-Oxley Compliance. Except in each case as disclosed in the Registration Statement, in the Pricing Disclosure Package and in the Prospectus:

 

i. Disclosure Controls. To the extent required, the Company has established and maintains disclosure controls and procedures (as defined in Rules 13a-14 and 15d-14 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”) and such controls and procedures are effective in ensuring that material information relating to the Company is made known to the principal executive officer and the principal financial officer. The Company has utilized such controls and procedures in preparing and evaluating the disclosures in the Registration Statement, in the Pricing Disclosure Package and in the Prospectus.

 

ii. Compliance. The Company is in compliance with the provisions of the Sarbanes-Oxley Act applicable to it, and has implemented or will implement such programs and taken reasonable steps to ensure its future compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the provisions of the Sarbanes-Oxley Act.

 

iii. Accounting Controls. To the extent required, the Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement, in the Pricing Disclosure Package and in the Prospectus, the Company’s internal control over financial reporting is effective and none of the Company, its board of directors and audit committee is aware of any “significant deficiencies” or “material weaknesses” (each as defined by the Public Company Accounting Oversight Board) in its internal control over financial reporting, or any fraud, whether or not material, that involves management or other employees of the Company who have a significant role in the Company’s internal controls; and since the end of the latest audited fiscal year, there has been no change in the Company’s internal control over financial reporting (whether or not remediated) that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. The Company’s board of directors has, subject to the exceptions, cure periods and the phase-in periods specified in the applicable rules of the Exchange (“Exchange Rules”), validly appointed an audit committee to oversee internal accounting controls whose composition satisfies the applicable requirements of the Exchange Rules and the Company’s board of directors and/or the audit committee has adopted a charter that satisfies the requirements of the Exchange Rules.

  

11

 

 

z. Investment Company Act. None of the Company or its Subsidiaries is or, after giving effect to the Offering and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will be, required to register as an “investment company,” as defined in the Investment Company Act of 1940, as amended.

 

aa. No Labor Disputes. Except as described in the Pricing Disclosure Package and the Prospectus, no labor problem or dispute with the employees of any of the Company or its Subsidiaries exists or is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its Subsidiaries’ principal suppliers, contractors or customers, that could result in a Material Adverse Change.

 

bb. Intellectual Property Rights. Each of the Company and its Subsidiaries owns or possesses or has valid rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions, trade secrets and similar rights (“Intellectual Property Rights”) necessary for the conduct of its business as currently carried on and as described in the Pricing Disclosure Package and the Prospectus. No action or use by any of the Company or its Subsidiaries necessary for the conduct of its business as currently carried on and as described in the Pricing Disclosure Package and the Prospectus will involve or give rise to any infringement of, or license or similar fees for, any Intellectual Property Rights of others. None of the Company or its Subsidiaries has received any notice alleging any such infringement, fee or conflict with asserted Intellectual Property Rights of others. Except as would not result, individually or in the aggregate, in a Material Adverse Change (A) to the knowledge of the Company, there is no infringement, misappropriation or violation by third parties of any of the Intellectual Property Rights owned by any of the Company or its Subsidiaries; (B) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the rights of any of the Company or its Subsidiaries in or to any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim, that would, individually or in the aggregate, together with any other claims in this Section 3(bb), reasonably be expected to result in a Material Adverse Change; (C) the Intellectual Property Rights owned by each of the Company or its Subsidiaries and, to the knowledge of the Company, the Intellectual Property Rights licensed to any of the Company or its Subsidiaries have not been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part, and there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim that would, individually or in the aggregate, together with any other claims in this Section 3(bb), reasonably be expected to result in a Material Adverse Change; (D) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that any of the Company or its Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property Rights or other proprietary rights of others, the Company has not received any written notice of such claim and the Company is unaware of any other facts which would form a reasonable basis for any such claim that would, individually or in the aggregate, together with any other claims in this Section 3(bb), reasonably be expected to result in a Material Adverse Change; and (E) to the Company’s knowledge, no employee of the Company or its Subsidiaries is in or has ever been in violation in any material respect of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment with the Company or its Subsidiaries, or actions undertaken by the employee while employed with any of the Company or its Subsidiaries. To the Company’s knowledge, all material technical information developed by and belonging to any of the Company or its Subsidiaries which has not been patented has been kept confidential. None of the Company or its Subsidiaries is a party to or bound by any options, licenses or agreements with respect to the Intellectual Property Rights of any other person or entity that are required to be set forth in the Pricing Disclosure Package and the Prospectus and are not described therein. The Pricing Disclosure Package and the Prospectus contain in all material respects the same description of the matters set forth in the preceding sentence. None of the technology employed by any of the Company or its Subsidiaries has been obtained or is being used by any of them in violation of any contractual obligation binding on any of the Company or its Subsidiaries or, to the Company’s knowledge, any of their respective officers, directors or employees, or otherwise in violation of the rights of any persons.

  

12

 

 

cc. Taxes. Each of the Company and its Subsidiaries has filed all returns (as defined below) required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof. Each of the Company and its Subsidiaries has paid all taxes (as defined below) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against it. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements. No issues have been raised (and are currently pending) by any taxing authority in connection with any of the returns or taxes asserted as due from any of the Company or its Subsidiaries and no waivers of statutes of limitation with respect to the returns or collection of taxes have been given by or requested from any of the Company or its Subsidiaries. The term “taxes” means all federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatever, together with any interest and any penalties, additions to tax or additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements and other documents required to be filed in respect to taxes.

 

dd. ERISA and Employee Benefits Matters. None of the Company or its Subsidiaries maintains any “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, including any stock purchase, stock option, stock-based severance, employment, change-in-control, medical, disability, fringe benefit, bonus, incentive, deferred compensation, employee loan and all other employee benefit plans, agreements, programs, policies or other arrangements, under which (i) any current or former employee, director or independent contractor has any present or future right to benefits and which are contributed to, sponsored by or maintained by any of the Company or its Subsidiaries or (ii) any of the Company or its Subsidiaries has had or has any present or future obligation or liability.

 

ee. Compliance with Laws. Each of the Company and its Subsidiaries holds, and is operating in compliance in all material respects with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any governmental authority or self-regulatory body required for the conduct of its business and all such franchises, grants, authorizations, licenses, permits, easements, consents, certifications and orders are valid and in full force and effect; and none of the Company or its Subsidiaries has received notice of any revocation or modification of any such franchise, grant, authorization, license, permit, easement, consent, certification or order or has reason to believe that any such franchise, grant, authorization, license, permit, easement, consent, certification or order will not be renewed in the ordinary course; and each of the Company and its Subsidiaries is in compliance in all material respects with all applicable federal, state, local and foreign laws, regulations, orders and decrees.

 

ff. Ownership of Assets. Except as described in the Pricing Disclosure Package and the Prospectus, the property held under lease by any of the Company or its Subsidiaries is held by it under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its Subsidiaries, as applicable. 

 

13

 

 

gg. Compliance with Environmental Laws. Except as disclosed in the Pricing Disclosure Package and the Prospectus, none of the Company or its Subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental authority or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), owns or operates any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim would, individually or in the aggregate, result in a Material Adverse Change; and none of the Company or its Subsidiaries is aware of any pending investigation which might lead to such a claim. None of the Company or its Subsidiaries anticipates incurring any material capital expenditures relating to compliance with Environmental Laws.

 

i. Compliance with Occupational Laws. Except as described in the Pricing Disclosure Package and the Prospectus, each of the Company and its Subsidiaries (i) is in compliance, in all material respects, with any and all applicable foreign, federal, state and local laws, rules, regulations, treaties, statutes and codes promulgated by any and all governmental authorities relating to the protection of human health and safety in the workplace (“Occupational Laws”); (ii) has received all material permits, licenses or other approvals required of it under applicable Occupational Laws to conduct its business as currently conducted; and (iii) is in compliance, in all material respects, with all terms and conditions of such permit, license or approval. No action, proceeding, revocation proceeding, writ, injunction or claim is pending or, to the Company’s knowledge, threatened against any of the Company or its Subsidiaries relating to Occupational Laws, and the Company does not have knowledge of any facts, circumstances or developments relating to its operations or cost accounting practices that could reasonably be expected to form the basis for or give rise to such actions, suits, investigations or proceedings.

 

hh. Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the time of effectiveness of the Registration Statement and any amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) of any of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.

 

ii. Business Arrangements. Except as disclosed in the Pricing Disclosure Package and the Prospectus, none of the Company or its Subsidiaries has granted rights to develop, manufacture, produce, assemble, distribute, license, market or sell its products to any other person or is bound by any agreement that affects the exclusive right of any of the Company or its Subsidiaries to develop, manufacture, produce, assemble, distribute, license, market or sell its products.

 

jj. Industry Data. The statistical and market-related data included in each of the Pricing Disclosure Package and the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources. The Company has obtained all consents required for the inclusion of such statistical and market-related data in each of the Pricing Disclosure Package and the Prospectus.

 

kk. Forward-looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Pricing Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.

 

ll. Emerging Growth Company. From the time of initial confidential submission of the Registration Statement with the Commission (or, if earlier, the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication (as defined below)) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”). “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act.

  

14

 

 

mm. Testing-the-Waters Communications. The Company (i) has not alone engaged in any Testing-the-Waters Communications, other than Testing-the-Waters Communications with the prior consent of the Representative with entities that are qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities Act and (ii) has not authorized anyone other than the Underwriters to engage in Testing-the-Waters Communications. The Company reconfirms that the Underwriters has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written Testing-the-Waters Communications (as defined below) other than those listed on Schedule V hereto. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act. Any individual Written Testing-the-Waters Communication does not conflict with the information contained in the Registration Statement or the Pricing Disclosure Package, complied in all material respects with the Securities Act, and when taken together with the Pricing Disclosure Package as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. 

 

nn. No Other Offering Materials. The Company has not distributed and will not distribute any prospectus or other offering material in connection with the Offering other than any Pricing Prospectus, the Pricing Disclosure Package or the Prospectus or other materials permitted by the Securities Act to be distributed by the Company; provided, however, that, except as set forth on Schedule II, the Company has not made and will not make any offer relating to the Securities that would constitute a free writing prospectus, except in accordance with the provisions of Section 4(m) of this Agreement and, except as set forth on Schedule II, the Company has not made and will not make any communication relating to the Securities that would constitute a Testing-the-Waters Communication, except in accordance with the provisions of Section 4(m) of this Agreement.

 

oo. Payments of Dividends; Payments in Foreign Currency. Except as described in the Pricing Disclosure Package and the Prospectus, (i) none of the Company or its Subsidiaries is prohibited, directly or indirectly, from (A) paying any dividends or making any other distributions on its share capital, (B) making or repaying any loan or advance to the Company or any other Subsidiary or (C) transferring any of its properties or assets to the Company or any other Subsidiary; and (ii) all dividends and other distributions declared and payable upon the share capital of the Company or any of its Subsidiaries (A) may be converted into foreign currency that may be freely transferred out of such person’s jurisdiction of incorporation, without the consent, approval, authorization or order of, or qualification with, any court or governmental agency or body in such person’s jurisdiction of incorporation or tax residence, and (B) are not and will not be subject to withholding, value added or other taxes under the currently effective laws and regulations of such person’s jurisdiction of incorporation, without the necessity of obtaining any consents, approvals, authorizations, orders, registrations, clearances or qualifications of or with any court or governmental agency or body having jurisdiction over such person.

 

pp. PFIC Status. Based on the Company’s current income and assets and projections as to the value of its assets and the market value of its Shares, including the current and anticipated valuation of its assets, the Company does not believe it was a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended, for its most recent taxable year, and does not expect to become a PFIC for its current taxable year or in the foreseeable future.

 

qq. Foreign Private Issuer. From the time of initial confidential submission of the Registration Statement with the Commission (or, if earlier, the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication) through the date hereof, the Company has been and is a “foreign private issuer” within the meaning of Rule 405 under the Securities Act.

 

rr. Margin Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of Offering will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the Ordinary Shares to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.

   

ss. Stock Exchange Listing. The Securities have been approved for listing on the Exchange upon official notice of issuance and, on the date the Registration Statement became effective, the Company’s Registration Statement on Form 8-A or other applicable form under the Exchange Act, became effective.

  

15

 

 

tt. No Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted or, to the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied with each request (if any) from the Commission for additional information.

 

uu. No Immunity. None of the Company or its Subsidiaries or any of their respective properties, assets or revenues has any right of immunity, under the laws of the Cayman Islands, the PRC or the State of New York, from any legal action, suit or proceeding, the giving of any relief in any such legal action, suit or proceeding, set-off or counterclaim, the jurisdiction of any Cayman Islands, PRC, New York or United States federal court, service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement, the Escrow Agreement or the Representative’s Warrant; and, to the extent that the Company or any of its Subsidiaries or any of their respective properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings may at any time be commenced, each of the Company and its Subsidiaries waives or will waive such right to the extent permitted by law and has consented to such relief and enforcement as provided in this Agreement, the Escrow Agreement and the Representative’s Warrant.

 

vv. Validity of Choice of Law. The choice of the laws of the State of New York as the governing law of this Agreement and the Escrow Agreement is a valid choice of law under the laws of the Cayman Islands and the PRC and will be honored by courts in the Cayman Islands and the PRC. The Company has the power to submit, and pursuant to this Agreement, the Escrow Agreement and the Representative’s Warrant, has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each the State of New York and United States Federal court sitting in New York County (each, a “New York Court”) and has validly and irrevocably waived any objection to the laying of venue of any suit, action or proceeding brought in any such court; and the Company has the power to designate, appoint and empower, and pursuant to this Agreement, the Escrow Agreement and the Representative’s Warrant, has legally, validly, effectively and irrevocably designated, appointed and empowered, an authorized agent for service of process in any action arising out of or relating to this Agreement, the Escrow Agreement, any preliminary prospectus, the Pricing Disclosure Package, the Prospectus, the Registration Statement, or the offering of the Securities in any New York Court, and service of process effected on such authorized agent will be effective to confer valid personal jurisdiction over the Company as provided in this Agreement, the Escrow Agreement and the Representative’s Warrant.

 

ww. [Reserved].

 

xx. Officer’s Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to you or to the Underwriters’ counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.

 

(4) Certain Agreements of the Company. The Company agrees with the Underwriters as follows:

 

a. Required Filings. The Company will prepare and file a Prospectus with the Commission containing the Rule 430A Information omitted from the Preliminary Prospectus within the time period required by, and otherwise in accordance with the provisions of, Rules 424(b) and 430A of the Securities Act. If the Company has elected to rely upon Rule 462(b) of the Securities Act to increase the size of the offering registered under the Securities Act and the Rule 462(b) Registration Statement has not yet been filed and become effective, the Company will prepare and file the Rule 462 Registration Statement with the Commission within the time period required by, and otherwise in accordance with the provisions of, Rule 462(b) and the Securities Act. The Company will prepare and file with the Commission, promptly upon the Representative’s request, any amendments or supplements to the Registration Statement or Prospectus that, in the Representative’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Securities by the Underwriters; and the Company will furnish the Representative and its counsel a copy of any proposed amendment or supplement to the Registration Statement or Prospectus and will not file any amendment or supplement to the Registration Statement or Prospectus to which the Representative shall reasonably object by notice to the Company after having been furnished a copy a reasonable time prior to the filing.

  

16

 

 

b. Notification of Certain Commission Actions. The Company will advise the Representative, promptly after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and the Company will promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such a stop order should be issued.

 

c. Continued Compliance with Securities Laws.

 

i. Within the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the Securities Act by the Underwriters or any dealer, the Company will comply with all requirements imposed upon it by the Securities Act, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the Pricing Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Pricing Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus (or if the Prospectus is not yet available to prospective investors, the Pricing Disclosure Package) to comply with the Securities Act, the Company promptly will (x) notify the Underwriters of such untrue statement or omission, (y) amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Pricing Disclosure Package) (at the expense of the Company) so as to correct such statement or omission or effect such compliance and (z) notify the Underwriters when any amendment to the Registration Statement is filed or becomes effective or when any supplement to the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Pricing Disclosure Package) is filed. 

 

ii. If at any time following issuance of an Issuer Free Writing Prospectus or Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus or Written Testing-the-Waters Communication conflicted or would conflict with the information contained in the Registration Statement, any Preliminary Prospectus or the Prospectus relating to the Securities or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company (x) has promptly notified or promptly will notify the Underwriters of such conflict, untrue statement or omission, (y) has promptly amended or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus or Written Testing-the-Waters Communication to eliminate or correct such conflict, untrue statement or omission and (z) has notified or promptly will notify the Underwriters when such amendment or supplement was or is filed with the Commission to the extent required to be filed by the Securities Act.

 

d. Rule 158. The Company will make generally available to its security holders as soon as practicable, but in no event later than 16 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period beginning after the effective date of the Registration Statement (which, for purposes of this paragraph, will be deemed to be the effective date of the Rule 462(b) Registration Statement, if applicable) that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. Documents filed with the Commission pursuant to its EDGAR system shall be deemed to have the Company’s requirements under this Section.

  

17

 

 

e. Furnishing of Prospectuses. The Company will furnish to the Underwriters copies of the Registration Statement, including all exhibits, any Statutory Prospectus relating to the Securities, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Underwriters reasonably requests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.

 

f. Blue Sky Qualifications. The Company shall take or cause to be taken all necessary action to qualify the Securities for sale under the securities laws of such domestic United States or foreign jurisdictions as the Underwriters may reasonably designate and to continue such qualifications in effect so long as required for the distribution of the Securities, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state.

 

g. Provision of Documents. The Company will furnish, at its own expense, to the Underwriters and their counsel copies of the Registration Statement (one of which will be signed and will include all consents and exhibits filed therewith), and to the Underwriters and any dealer each Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as the Underwriters may from time to time reasonably request.

 

h. Reporting Requirements. The Company will use commercially reasonable efforts to file on a timely basis with the Commission such periodic and special reports as required by the Exchange Act.

 

i. Payment of Expenses. The Company shall be responsible for and shall pay all expenses relating to the Offering, including: (i) all filing fees and communication expenses relating to the registration of the Securities and the filing of the offering materials with FINRA; (ii) all reasonable travel and lodging expenses incurred by the Representative or its counsel in connection with visits to, and examinations of, our company; (iii) translation costs for due diligence purpose; (iv) all fees, expenses and disbursements relating to the registration or qualification of the Securities 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 Securities, if any, and the fees and expenses of the transfer agent for such Securities; (vii) the reasonable cost for road show meetings and preparation of a power point presentation; and (viii) the legal fees of Representative’s counsel in connection with the purchase and sale of the Securities. Notwithstanding anything contained herein to the contrary, the Company’s obligation to pay accountable expenses of the Underwriters as set forth under items (ii), (iii), (vii) and (viii) shall not exceed $175,000. In addition, the Company shall be responsible for the costs associated with “tombstone” advertisements, not to exceed $8,000. In the event that the Offering is terminated, the Company agrees to reimburse the Underwriters pursuant to Section 7 hereof. The Company has already paid an expense deposit of $35,000 to the Representative, within three days of the execution of the letter of intent between the Company and the Representative, and an additional $35,000 upon receipt of the SEC’s first comments, for the Representative’s anticipated out-of-pocket expenses, both of which shall be considered as payments of expenses to the Underwriters as set forth under this Section 4(i). Any expense deposits will be returned to the Company to the extent the Representative’s out-of-pocket accountable expenses are not actually incurred in accordance with FINRA Rule 5110(f)(2)(C).

 

j. Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder for the purposes set forth in the Pricing Disclosure Package and in the Prospectus and will file such reports with the Commission with respect to the sale of the Securities and the application of the proceeds therefrom as may be required in accordance with Rule 463 under the Securities Act. 

 

k. Absence of Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, or which has constituted, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and has not effected any sales of Ordinary Shares which are required to be disclosed in response to Item 701 of Regulation S-K under the Securities Act which have not been so disclosed in the Registration Statement.

  

18

 

 

l. Emerging Growth Company. The Company will promptly notify the Underwriters if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of Securities within the meaning of the Securities Act and (B) completion of the 180-day restricted period referenced to in Section 4(n) hereof.

 

m. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior written consent of the Representative, and the Representative represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a free writing prospectus required to be filed with the Commission; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II. Any such free writing prospectus consented to by the Company or the Underwriters is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and has complied and will comply with the requirements of Rules 164 and 433 under the Securities Act applicable to any Permitted Free Writing Prospectus. The Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show. Each Underwriter represents and agrees that, (A) unless it obtains the prior written consent of the Company, it has not distributed, and will not distribute any Written Testing-the-Waters Communication other than those listed on Schedule V, and (B) any Testing-the-Waters Communication undertaken by it was with entities that are qualified institutional buyers with the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities Act.

 

n. [Reserved.]

 

o. Transfer Agent. The Company shall maintain, at its expense, a registrar and transfer agent for the Company’s Ordinary Shares reasonably acceptable to the Underwriters, and shall retain such transfer agent for a period of not less than one year from the First Closing Date.

 

p. Press Releases. The Company shall not issue any press release without the Representative’s prior written consent, commencing on the date of this Agreement and continuing for a period of 40 days from the First Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business, each of which the Underwriters shall have a reasonable right to review in advance of publication.

 

q. PRC Compliance. The Company shall comply with the PRC Overseas Investment and Listing Regulations, and use its reasonable efforts to cause holders of its Ordinary Shares that are, or that are directly or indirectly owned or controlled by, Chinese residents or Chinese citizens, to comply with the PRC Overseas Investment and Listing Regulations applicable to them, including requesting each such shareholder to complete any registration and other procedures required under applicable PRC Overseas Investment and Listing Regulations (including any applicable rules and regulations of the SAFE).

 

(5) Conditions of the Obligations of the Underwriters. The obligations of the Underwriters hereunder are subject to the accuracy, as of the date hereof and as of the First Closing Date and the Second Closing Date (as if made at such Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:

 

a. Filing of Prospectuses. All filings required by Rules 424, 430A and 433 of the Securities Act shall have been timely made (without reliance on Rule 424(b)(8) or Rule 164(b)); no stop order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof, nor suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any issuer free writing prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; and any request of the Commission for additional information (to be included in the Registration Statement, the Pricing Disclosure Package, the Prospectus, any issuer free writing prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.

  

19

 

 

b. Continued Compliance with Securities Laws. The Underwriters shall not have advised the Company that (i) the Registration Statement or any amendment thereof or supplement thereto contains an untrue statement of a material fact which, in the Underwriters’ reasonable opinion, is material or omits to state a material fact which, in the Underwriters’ reasonable opinion, is required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Pricing Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus contains an untrue statement of fact which, in the Underwriters’ reasonable opinion, is material, or omits to state a fact which, in the Underwriters’ reasonable opinion, is material and is required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.

 

c. Absence of Certain Events. Except as contemplated in the Pricing Disclosure Package and in the Prospectus, subsequent to the respective dates as of which information is given in the Pricing Disclosure Package and the Prospectus, none of the Company or its Subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its share capital; and there shall not have been any change in the share capital (other than a change in the number of outstanding Ordinary Shares of the Company due to the issuance of shares upon the exercise of outstanding options or warrants or conversion of convertible securities), or any material change in the short-term or long-term debt of any of the Company (other than as a result of the conversion of convertible securities of the Company), or its Subsidiaries, or any issuance of options, warrants, convertible securities or other rights to purchase the share capital of any of the Company or its Subsidiaries, or any Material Adverse Change or any development involving a prospective Material Adverse Change (whether or not arising in the ordinary course of business), that, in the Underwriters’ reasonable judgment, makes it impractical or inadvisable to offer or deliver the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and in the Prospectus.

 

d. Officer’s Certificate. The Underwriters shall have received on and as of each Closing Date a certificate, addressed to the Underwriters, signed by the chief executive officer and the chief financial officer of the Company to the effect that:

 

i. The representations and warranties of the Company in this Agreement are true and correct as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date; and

 

ii. No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Securities for offering or sale, nor suspending or preventing the use of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body.

 

e. Chief Financial Officer’s Certificate. At each Closing Date, the Underwriters shall have received a certificate of the Company signed by the Chief Financial Officer of the Company, dated such Closing Date, certifying: (i) that the Memorandum and Articles of Association are true and complete, have not been modified and are in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the public offering contemplated by this Agreement are in full force and effect and have not been modified; (iii) as to the accuracy and completeness of all correspondence between the Company or its counsel and the Commission; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.

 

f. Opinions of Counsel for the Company. At each Closing Date, the Underwriters shall have received the written opinion and negative assurance letter of Ellenoff Grossman & Schole LLP, U.S. counsel for the Company, dated such Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.

  

20

 

 

g. Opinion of PRC Counsel for the Company. At each Closing Date, the Underwriters shall have received the written opinion of Jingtian & Gongcheng, PRC counsel for the Company, dated such Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.

 

h. Opinion of Cayman Islands Counsel for the Company. At each Closing Date, the Underwriters shall have received the written opinion of Ogier, Cayman Islands counsel for the Company, dated such Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.

 

i. Opinion of Counsel for the Underwriters. At each Closing Date, the Underwriters shall have received the written opinion of Dickinson Wright PLLC, dated such Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters. 

 

j. No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of such Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of such Closing Date, prevent the issuance or sale of the Securities.

 

k. Good Standing. At each Closing Date, the Underwriters shall have received on and as of such Closing Date satisfactory evidence of the good standing of the Company and its Subsidiaries, excluding each Subsidiary set forth on Schedule VI hereto, in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions or, for any such jurisdiction in which evidence of good standing may not be obtained from appropriate governmental authorities, in the form of an opinion of counsel licensed in the applicable jurisdiction.

 

l. Lock-up Agreements. The Underwriters shall have received all of the Lock-Up Agreements from the Lock-Up Parties, and the Lock-Up Agreements shall be in full force and effect.

 

m. Escrow Agreement. The Company shall have entered into the Escrow Agreement with the Representative and the Escrow Agent, and such agreement shall be in full force and effect.

 

n. Representative’s Warrant. At the First Closing Date, the Company shall issue the Representative’s Warrant to the Representative.

 

o. FINRA Matters. FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.

 

p. Comfort Letters. The Company shall have requested and caused the Auditor to have furnished to the Underwriters, at the Execution Time and at each Closing Date and any settlement date, letters (which may refer to letters previously delivered to the Underwriters), dated respectively as of the Execution Time and as of such Closing Date and any settlement date, in form and substance satisfactory to the Underwriters.

 

q. Exchange Listing. The Securities to be delivered on each Closing Date shall have been approved for listing on the NASDAQ Capital Market (the “Exchange”), subject to official notice of issuance and shall be DTC eligible.

 

r. Additional Documents. On or prior to each Closing Date, the Company shall have furnished to the Underwriters such further certificates and documents as the Underwriters may reasonably request.

 

All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. The Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and other documents as the Underwriters shall reasonably request.

  

21

 

 

(6) Indemnification and Contribution.

 

a. The Company agrees to indemnify, defend and hold harmless the Underwriters, their respective affiliates, directors and officers and employees, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each an “Underwriter Indemnified Party”), from and against any losses, claims, damages or liabilities (including in settlement of any litigation if such settlement is effected with the prior written consent of the Company) arising out of (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and 430B of the Securities Act Regulations, or arise out of or are based upon the omission from the Registration Statement, or alleged omission to state therein, a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) an untrue statement or alleged untrue statement of a material fact contained in the Pricing Disclosure Package, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus, any Marketing Materials, or any Written Testing-the-Waters Communications or in any other materials used in connection with the offering of the Securities, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and will reimburse such Indemnified Party for any legal or other expenses reasonably incurred by it in connection with evaluating, investigating or defending against such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Pricing Disclosure Package, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus, any Marketing Materials or any Written Testing-the-Waters Communications or, in reliance upon and in conformity with the Underwriter Information. The indemnification obligations under this Section 6(a) are not exclusive and will be in addition to any liability which the Company might otherwise have and shall not limit any rights or remedies which may otherwise be available at law or in equity to each Underwriter Indemnified Party. 

 

b. Each Underwriter, severally and not jointly, will indemnify, defend and hold harmless the Company, its affiliates, directors, officers and employees, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each a “Company Indemnified Party”), from and against any losses, claims, damages or liabilities to which such Company Indemnified Party may become subject, under the Securities Act or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Representative), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Pricing Disclosure Package, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus, any Marketing Materials, or any Written Testing-the-Waters Communications, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Pricing Disclosure Package, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus, any Marketing Materials or any Written Testing-the-Waters Communications in reliance upon and in conformity with the Underwriter Information, and will reimburse such Company Indemnified Party for any legal or other expenses reasonably incurred by it in connection with defending against any such loss, claim, damage, liability or action. The indemnification obligations under this Section 6(b) are not exclusive and will be in addition to any liability which each Underwriter might otherwise have and shall not limit any rights or remedies which may otherwise be available at law or in equity to each Company Indemnified Party.

  

22

 

 

c. Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the failure to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to any indemnified party except to the extent such indemnifying party has been materially prejudiced by such failure. In case any such action shall be brought against any indemnified party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in, and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of the indemnifying party’s election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof; provided, however, that if (i) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (ii) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party), or (iii) the indemnifying party has not in fact employed counsel reasonably satisfactory to the indemnified party to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, the indemnified party shall have the right to employ a single counsel to represent it in any claim in respect of which indemnity may be sought under subsection (a) or (b) of this Section 6, in which event the reasonable fees and expenses of such separate counsel shall be borne by the indemnifying party or parties and reimbursed to the indemnified party as incurred.

 

d. The indemnifying party under this Section 6 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is a party or could be named and indemnity was or would be sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability for claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. Notwithstanding the foregoing, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel pursuant to Section 6(c), such indemnifying party agrees that it shall be liable for any settlement effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.

 

e. If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then the indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering and sale of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from the Offering (before deducting expenses) received by the Company bear to the total Underwriting Fee received by the Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties’ relevant intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (e) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in the first sentence of this subsection (e). The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any action or claim that is the subject of this subsection (e). No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

  

23

 

 

f. Notwithstanding the provisions of this Section 6, no Underwriter shall be required to pay pursuant to this Section 6, either as indemnification or contribution or both, any amount in excess of the amount of the Underwriting Fee actually received by it pursuant to this Agreement.

 

g. For purposes of this Agreement, the Underwriters confirm, and the Company acknowledges, that there is no information concerning the Underwriters furnished in writing to the Company by the Representative specifically for preparation of or inclusion in the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, other than the Underwriter Information.

 

(7) Term and Termination of Agreement. The term of this Agreement will commence upon the execution of this Agreement and will terminate upon the consummation of the final Closing of the Offering; provided the Underwriters shall have the right to terminate this Agreement by giving notice to the Company at any time at or prior to the First Closing Date, and the option referred to in Section 1(b), if exercised, may be cancelled at any time prior to the Second Closing Date, if (i) the Company shall have failed, refused or been unable, at or prior to such Closing Date, to perform any agreement on its part to be performed hereunder, (ii) any other condition of the Underwriters’ obligations hereunder is not fulfilled, (iii) trading on the Exchange shall have been wholly suspended, (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, on the Exchange, by such Exchange or by order of the Commission or any other governmental authority, (v) a banking moratorium shall have been declared by federal or state authorities, or (vi) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in the Representative’s reasonable judgment, is material and adverse and makes it impractical or inadvisable to proceed with the completion of the sale of and payment for the Securities. Any such termination shall be without liability on the part of any party to any other party, except that those portions of this Agreement specified in Section 9 shall at all times be effective and shall survive such termination. Notwithstanding anything to the contrary in this Agreement, in the event that this Agreement shall not be carried out for any reason whatsoever, the Company shall be obligated to pay to the Underwriters their actual and accountable out-of-pocket expenses related to the transactions contemplated herein, less any advances previously paid which as of the date hereof is $70,000 (the “Advances”), then due and payable and upon demand the Company shall pay the full amount thereof to the Underwriters. To the extent that the Underwriters’ out-of-pocket expenses are less than the Advances, the Underwriters will return to the Company that portion of the Advances not offset by actual expenses. Notwithstanding anything to the contrary contained herein, any provision in this Agreement concerning or relating to confidentiality, indemnification, contribution, advancement, the Company’s representations and warranties and the Company’s obligations to pay fees and reimburse expenses will survive any expiration or termination of this Agreement.

 

(8) Underwriter Default.

 

a. If any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares, and if the Firm Shares with respect to which such default relates (the “Default Securities”) do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares, each non-defaulting Underwriter, acting severally and not jointly, agrees to purchase from the Company that number of Default Securities that bears the same proportion to the total number of Default Securities then being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Annex A hereto bears to the aggregate number of Firm Shares set forth opposite the names of the non-defaulting Underwriters; subject, however, to such adjustments to eliminate fractional shares as the Representative in its sole discretion shall make.

  

24

 

 

b. In the event that the aggregate number of Default Securities exceeds 10% of the number of Firm Shares, the Representative may in its discretion arrange for itself or for another party or parties (including any non-defaulting Underwriter or Underwriters who so agree) to purchase the Default Securities on the terms contained herein. In the event that within five (5) calendar days after such a default the Representative does not arrange for the purchase of the Default Securities as provided in this Section 8, this Agreement shall thereupon terminate, without liability on the part of the Company with respect thereto (except in each case as provided in Sections 4(i), 6, 7, 8 and 9) or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, to the other Underwriters and the Company for damages occasioned by its or their default hereunder. 

 

c. In the event that any Default Securities are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the First Closing Date for a period, not exceeding five (5) Business Days, in order to effect whatever changes may thereby be necessary in the Registration Statement or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment or supplement to the Registration Statement or the Prospectus which, in the reasonable opinion of Underwriters’ counsel, may be necessary or advisable. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 8 with like effect as if it had originally been a party to this Agreement with respect to such Securities.

 

(9) Survival of Indemnities, Representations, Warranties, Etc. The respective indemnities, covenants, agreements, representations, warranties and other statements of the Company and the Underwriters, as set forth in this Agreement or made by them respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation made by or on behalf of the Underwriters or the Company or any person controlling any of them and shall survive delivery of and payment for the Securities. Notwithstanding any termination of this Agreement, including any termination pursuant to Section 7, the payment, reimbursement, indemnity and contribution agreements contained in Sections 4(i), 6, 7, 8 and 9, and the Company’s covenants, representations, and warranties set forth in this Agreement shall not terminate and shall remain in full force and effect at all times. The indemnity and contribution provisions contained in Section 6 and the covenants, warranties and representations of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Underwriters, any person who controls the Underwriters within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or any affiliate of the Underwriters, or by or on behalf of the Company, the Company’s directors or officers or any person who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and (iii) the issuance and delivery of the Securities. The Company and the Underwriters agree to notify each other of the commencement of any proceeding against either of them promptly, and, in the case of the Company, against any of the Company’s officers or directors in connection with the issuance and sale of the Securities, or in connection with the Registration Statement and the Prospectus.

 

(10) Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered, delivered by reputable overnight courier (i.e., Federal Express) or delivered by facsimile or e-mail transmission to the parties hereto as follows

 

If to the Company, to:

 

MingZhu Logistics Holdings Limited 明珠货运控股有限公司

27F Yantian Modern Industry Service Ctr.

No. 3018 Shayan Rd.

Shenzhen, Guangdong, China 518083

Attention: Jinlong Yang

Email: company@szygmz.com

  

25

 

  

with a copy to (which shall not constitute notice):

 

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas

New York, New York 10105

Attention: Richard I. Anslow, Esq.

Email: ranslow@egsllp.com

 

If to the Underwriter, to:

 

ViewTrade Securities, Inc.

Attention: Doug K. Aguililla

7280 West Palmetto Park Road, Suite 310

Boca Raton, FL 33433

Attention: Doug Aguililla

Email: dougagui@viewtrade.com

Facsimile: (561) 620-0302

 

with a copy to (which shall not constitute notice):

 

Dickinson Wright PLLC

350 E. Las Olas Blvd., Suite 1750

Ft. Lauderdale, FL 33301

Attention: Joel D. Mayersohn, Esq.

Email: jmayersohn@dickinsonwright.com

 

(11) Successors. This Agreement will inure to the benefit of and be binding upon parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 6, and no other person will have any right or obligation hereunder. 

 

(12) Headings. The headings of the various sections of this Agreement have been inserted for convenience of reference only and will not be deemed to be part of this Agreement.

 

(13) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. In the event that any signature is delivered by facsimile transmission, electronic delivery, or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile, electronic copy, or “.pdf” signature page were an original thereof.

 

(14) Absence of Fiduciary Relationship. The Company acknowledges and agrees that:

 

a. No Other Relationship. The Underwriters have been retained solely as independent contractors to act as underwriters in connection with the sale of Securities and that no fiduciary, advisory or agency relationship between the Company and any Underwriter has been created in respect of any of the transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether any such Underwriter has advised or is advising the Company on other matters;

 

b. Arm’s-Length Negotiations. The price of the Securities set forth in this Agreement was established by the Company following discussions and arm’s-length negotiations with the Underwriters and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;

 

c. Absence of Obligation to Disclose. The Company has been advised that the Underwriters and their respective affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company, and that the Underwriters have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and

 

26

 

 

d. Waiver. The Company waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Underwriters shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including shareholders, employees or creditors of the Company.

 

(15) Amendment. In case any provision in this Agreement shall be invalid, illegal or unenforceable, the validity and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior and all contemporaneous agreements (whether written or oral), understandings and negotiations with respect to the subject matter hereof. This Agreement may only be amended or modified in writing, signed by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit.

 

(16) Confidentiality. In the event of the consummation or public announcement of the Offering, the Underwriters shall have the right to disclose their participation in the Offering, including through, at the Underwriters’ cost, the use of “tombstone” advertisements in financial and other newspapers and journals. The Underwriters agrees not to use any confidential information concerning the Company provided to the Underwriters by the Company for any purposes other than those contemplated under this Agreement.

 

(17) Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

 

(18) Submission to Jurisdiction; Appointment of Agent for Service. The Company hereby irrevocably submits to the non-exclusive jurisdiction of the U.S. federal and state courts in the Seventeenth Judicial Circuit Court in and for New York Country, New York or the United States District Court for the Southern District of New York (each, a “New York Court”) in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company and each of the Company’s Subsidiaries irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in the New York Courts, and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum. The Company irrevocably appoints Puglisi & Associates as its authorized agent (the “Authorized Agent”) in the United States, upon which process may be served in any such suit or proceeding, and agree that service of process in any manner permitted by applicable law upon such agent shall be deemed in every respect effective service of process in any manner permitted by applicable law upon the Company in any such suit or proceeding. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of two years from the date of this Agreement. 

 

(19) Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with such other currency in The State of New York on the Business Day preceding that on which final judgment is given. The obligation of the Company pursuant to this Agreement with respect to any sum due from it to the Underwriters or any person controlling the Underwriters shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first Business Day following receipt by the Underwriters or controlling person of any sum in such other currency, and only to the extent that the Underwriters or controlling person may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to the Underwriters or controlling person hereunder, the Company agrees as a separate obligation and notwithstanding any such judgment, to indemnify the Underwriters or controlling person against such loss. If the United States dollars so purchased are greater than the sum originally due to the Underwriters or controlling person hereunder, the Underwriters or controlling person agrees to pay to the Company an amount equal to the excess of the dollars so purchased over the sum originally due to the Underwriters or controlling person hereunder.

 

(20) Time of Essence. Time shall be of the essence of this Agreement.

 

[Signature Page Follows]

 

27

 

 

Please sign and return to the Company the enclosed duplicates of this Agreement whereupon this Agreement will become a binding agreement between the Company and the Underwriters in accordance with its terms.

 

  Very truly yours,
   
  MingZhu Logistics Holdings  Limited 明珠货运控股有限公司
     
  By:  
    Name: Jindong Yang
    Title: Chief Executive Officer and Director

 

Accepted by the Representative, acting for itself and as Representative of the Underwriters named on Annex A hereto, as of the date first written above:

 

  ViewTrade Securities, Inc.
     
  By:  
    Name: Douglas Aguililla
    Title: Director

 

 

28

 

 

 

Annex A

Name of Underwriters

  Number of Securities Being Purchased (1)
ViewTrade Securities, Inc.    
Total   [●]

 

(1) The Underwriters may purchase an additional [●] Option Shares, to the extent the option described in Section 1(b) of this Agreement is exercised in the manner described in this Agreement.

 

29

 

  

Schedule I

 

Pricing Information

 

Initial public offering price per share for the Securities: $[●]

 

Number of Firm Shares offered: [●]

 

Number of Option Shares offered: [●]

 

30

 

  

Schedule II

 

Certain Permitted Free Writing Prospectuses

 

 

 

31

 

  

Schedule III

 

Subsidiaries

 

 

 

 

32

 

  

Schedule IV

 

Lock-Up Parties

 

 

 

 

33

 

  

Schedule V

 

Testing the Waters Communications

 

 

 

 

34

 

  

Schedule VI

 

Good Standing

 

 

 

 

 

35

 

 

Exhibit A

 

Form of Lock-Up Agreement

 

[●], 2019

 

ViewTrade Securities, Inc.

7280 W. Palmetto Park Road Suite 310

Boca Raton, Florida 33433

 

As Representative of the Underwriters

named on Annex A to the Underwriting Agreement

 

Dear Sirs:

 

As an inducement to the underwriters, for which ViewTrade Securities, Inc. is acting as representative (the “Representative”), to execute an underwriting agreement (the “Underwriting Agreement”) providing for a public offering (the “Offering”) of ordinary shares (the “Ordinary Shares”), of MingZhu Logistics Holdings Limited 明珠货运控股有限公司and any successor (by merger or otherwise) thereto (the “Company”), the undersigned hereby agrees that without, in each case, the prior written consent of the Representative during the period specified in the second succeeding paragraph (the “Lock-Up Period”), the undersigned will not: (1) 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, make any short sale or otherwise transfer or dispose of, directly or indirectly, any Ordinary Shares or any securities convertible into, exercisable or exchangeable for or that represent the right to receive Ordinary Shares (including Ordinary Shares which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) whether now owned or hereafter acquired (the “Undersigned’s Securities”); (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Undersigned’s Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Ordinary Shares or such other securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to, the registration of any Ordinary Shares or any security convertible into or exercisable or exchangeable for Ordinary Shares; or (4) publicly disclose the intention to do any of the foregoing.

 

The undersigned agrees that the foregoing restrictions preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Undersigned’s Securities even if such Securities would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include any short sale or any purchase, sale or grant of any right (including any put or call option) with respect to any of the Undersigned’s Securities or with respect to any security that includes, relates to, or derives any significant part of its value from such Securities.

 

The Lock-Up Period will commence on the date of this Agreement and continue and include the date 12 months after the date of the final prospectus used to sell Ordinary Shares in the Offering pursuant to the Underwriting Agreement.

 

If the undersigned is an officer or director of the Company, (i) the Representative agrees that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Ordinary Shares, the Representative will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by issuing a press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Representative hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if both (a) the release or waiver is effected solely to permit a transfer not for consideration, and (b) the transferee has agreed in writing to be bound by the same terms described in this letter that are applicable to the transferor, to the extent and for the duration that such terms remain in effect at the time of the transfer.

 

36

 

 

Notwithstanding the foregoing, the undersigned may transfer the Undersigned’s Securities (i) as a bona fide gift or gifts, (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, (iii) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity (1) transfers to another corporation, partnership, limited liability company, trust or other business entity that is a direct or indirect affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned or (2) distributions of Ordinary Shares or any security convertible into or exercisable for Ordinary Shares to limited partners, limited liability company members or stockholders of the undersigned, (iv) if the undersigned is a trust, transfers to the beneficiary of such trust, (v) by testate succession or intestate succession or (vi) pursuant to the Underwriting Agreement; provided, in the case of clauses (i)-(v), that (x) such transfer shall not involve a disposition for value, (y) the transferee agrees in writing with the Representative to be bound by the terms of this Lock-Up Agreement, and (z) no filing by any party under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be made voluntarily in connection with such transfer. Furthermore, notwithstanding the foregoing, the undersigned may transfer the Undersigned’s Securities in a transaction not involving a public offering or public resale; provided that (x) the transferee agrees in writing with the Representative to be bound by the terms of this Lock-Up Agreement, and (y) no filing by any party under Section 16(a) of the Exchange Act shall be required or shall be made voluntarily in connection with such transfer. For purposes of this Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, nor more remote than first cousin.

 

 In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to decline to make any transfer of Ordinary Shares if such transfer would constitute a violation or breach of this Agreement.

 

The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Agreement and that upon request, the undersigned will execute and additional documents necessary to ensure the validity or enforcement of this Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.

 

The undersigned understands that the undersigned shall be released from all obligations under this Agreement if (i) the Company notifies the Representative that it does not intend to proceed with the Offering, (ii) the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Ordinary Shares to be sold thereunder, or (iii) the Offering is not completed by ______________, 2020.

 

The undersigned understands that the underwriters named in the Underwriting Agreement are entering into the Underwriting Agreement and proceeding with the Offering in reliance upon this Agreement.

 

[Signature Page Follows]

 

37

 

 

This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

 

  Very truly yours,
   
     
    Printed Name of Holder
     
  By:  
    Signature
     
     
    Printed Name of Person Signing
    (and indicate capacity of person signing if signing as custodian, trustee, or on behalf of an entity)

 

38

 

  

Exhibit B

 

Form of Company Press Release for Waivers or Releases

of Officer/Director Lock-Up Agreements

 

MingZhu Logistics Holdings Ltd.

27F Yantian Modern Industry Service Ctr.

No. 3018 Shayan Rd.

Shenzhen, Guangdong, China 518083

Attention: Jinlong Yang

 

[●]

 

MingZhu Logistics Holdings Ltd. (the “Company”) announced today that ViewTrade Securities, Inc., [the sole Underwriter] [as representative of the several Underwriters], is [waiving] [releasing] [a] lock-up restriction[s] with respect to an aggregate of [●] ordinary shares held by certain [officers] [directors] of the Company. These [officers] [directors] entered into lock-up agreements with ViewTrade in connection with the Company’s initial public offering.

 

This [waiver] [release] will take effect on [●] [date that is at least 2 business days following date of this press release].

 

This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.

 

 

39

 

 

Exhibit 4.1

 

Form of Representative’s Warrant to Purchase Ordinary Shares

 

THE REGISTERED HOLDER OF THIS REPRESENTATIVE’S WARRANT BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS REPRESENTATIVE’S WARRANT EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS REPRESENTATIVE’S WARRANT AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS REPRESENTATIVE’S WARRANT OR CAUSE IT TO BE THE SUBJECT OF ANY HEDGING, SHORT SALE, DERIVATIVE, PUT, OR CALL TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE ECONOMIC DISPOSITION OF THIS REPRESENTATIVE’S WARRANT BY ANY PERSON FOR A PERIOD OF ONE HUNDRED EIGHTY (180) DAYS FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER THAN (I) VIEWTRADE SECURITIES, INC. OR AN UNDERWRITER OR A SELECTED DEALER IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF VIEWTRADE SECURITIES, INC. OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER AND IN ACCORDANCE WITH FINRA RULE 5110(G)(2).

 

THIS WARRANT IS VOID AFTER 5:00 P.M., EASTERN TIME, [●].1

 

REPRESENTATIVE’S WARRANT

 

For the Purchase of [●] Ordinary Shares

of

MINGZHU LOGISTICS HOLDINGS, LTD.

 

1. Representative’s Warrant. THIS CERTIFIES THAT, pursuant to that certain Underwriting Agreement, dated [●] (the “Underwriting Agreement”), by and between MINGZHU LOGISTICS HOLDINGS, LTD. (the “Company”), and ViewTrade Securities, Inc., as representative of the underwriters named on Annex A thereto, providing for the public offering (the “Offering”) of ordinary share, par value US$0.001 per share, of the Company (the “Ordinary Shares”), ViewTrade Securities, Inc. or its assigns (“Holder”), as registered owner of this Purchase Warrant, is entitled, at any time or from time to time on or after [●] (the “Commencement Date”)2, and at or before 5:00 p.m., Eastern time, [●]3 (the “Expiration Date”), but not thereafter, to subscribe for, purchase and receive, in whole or in part, up to [●]4 Ordinary Share (the “Shares”), subject to adjustment as provided in Section 6 hereof. If the Expiration Date is a day on which banking institutions are authorized by law or executive order to close, then this Representative’s Warrant may be exercised on the next succeeding day which is not such a day in accordance with the terms herein. During the period commencing on the date hereof and ending on the Expiration Date, the Company agrees not to take any action that would terminate this Representative’s Warrant. This Representative’s Warrant is initially exercisable at $[●] per Share5; provided, however, that upon the occurrence of any of the events specified in Section 6 hereof, the rights granted by this Representative’s Warrant, including the exercise price per Share and the number of Shares to be received upon such exercise, shall be adjusted as therein specified. This Representative’s Warrant is being issued pursuant to the terms of the Underwriting Agreement. The term “Effective Date” shall mean the effective date of the registration statement in connection with the Offering. The term “Exercise Price” shall mean the initial exercise price or the adjusted exercise price, depending on the context.

 

 

1 Date that is five years from the Effective Date.

2 Six months from Effective Date.

3 Date that is five years from the Effective Date.

4 10% of the Shares sold in the Offering.

5 115% of the price of the Shares sold in the Offering.

 

1

 

 

2. Exercise.

 

2.1 Exercise Form. In order to exercise this Representative’s Warrant, the exercise form attached hereto must be duly executed and completed and delivered to the Company, together with this Representative’s Warrant and payment of the Exercise Price for the Shares being purchased payable in cash by wire transfer of immediately available funds to an account designated by the Company or by certified check or official bank check to the order of the Company. If the subscription rights represented hereby shall not be exercised at or before 5:00 p.m., Eastern time, on the Expiration Date, this Representative’s Warrant shall become and be void without further force or effect, and all rights represented hereby shall cease and expire.

 

2.2 Cashless Exercise. At any time after the Commencement Date, in lieu of exercising this Representative’s Warrant by payment of cash or check payable to the order of the Company pursuant to Section 2.1 above, Holder may elect to receive the number of Shares equal to the value of this Representative’s Warrant (or the portion thereof being exercised) by surrender of this Representative’s Warrant to the Company, together with the exercise form attached hereto, in which event the Company shall issue to Holder Shares in accordance with the following formula:

 

Y(A-B)

X = A

 

Where,

 

X = The number of Shares to be issued to Holder;

Y = The number of Shares that would be issuable upon exercise of this Representative’s Warrant if such exercise were by means of a cash exercise pursuant to Section 2.1 rather than a cashless exercise pursuant to this Section 2.2;

A = The fair market value of one Share, as determined in accordance with the provisions of this Section 2; and

B = The Exercise Price in effect under this Representative’s Warrant at the time the election to exercise this Representative’s Warrant on a cashless basis is made pursuant to this Section 2.

 

For purposes of this Section 2.2, the fair market value of a Share is defined as follows:

 

(i) if the Ordinary Shares are traded on a national securities exchange, the fair market value shall be deemed to be the closing sales price on such exchange on the Trading Day immediately prior to the date the exercise form is submitted to the Company in connection with the exercise of this Representative’s Warrant; or

 

(ii) if the Ordinary Shares are traded over-the-counter (i.e., on the OTCQB or OTCQX Markets operated by OTC Markets Group, Inc., or any similar over-the-counter market), the fair market value shall be deemed to be the closing bid price on the Trading Day immediately prior to the date the exercise form is submitted to the Company in connection with the exercise of this Representative’s Warrant; or

 

2

 

 

(iii) if there is no active public market for the Ordinary Shares, the value shall be the fair market value thereof, as determined in good faith by the Company’s Board of Directors.

 

Trading Day” means a date on which the Ordinary Shares are traded on the NYSE, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or the OTC Bulletin Board (or any successors to any of the foregoing).

 

For the avoidance of doubt, if there is no effective registration statement registering, or no current prospectus available for, the resale of the Shares underlying this Representative’s Warrant by the Holder, then this Representative’s Warrant may be exercised, in whole or in part, at such time by means of a cashless exercise in accordance with the provisions of this Representative’s Warrant.

 

2.3 Mechanics of Exercise.

 

(i) Delivery of Shares Upon Exercise. The Company shall use commercially reasonable efforts to cause the Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s prime broker with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Shares or resale of the Shares or (B) this Representative’s Warrant is being exercised via cashless exercise, and otherwise by delivery to the address specified by the Holder in the Notice of Exercise by the date that is two Trading Days after the latest of (A) the delivery to the Company of the Notice of Exercise, (B) surrender of this Representative’s Warrant (if required) and (C) receipt by the Company of the aggregate Exercise Price as set forth above (including by cashless exercise, if permitted) (such date, the “Share Delivery Date”). The Shares shall be deemed to have been issued, and the Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of such Shares for all purposes, as of the date the Representative’s Warrant has been exercised and payment to the Company of the aggregate Exercise Price (or by cashless exercise, if permitted) has been received by the Company and all taxes required to be paid by the Holder, if any, pursuant to Section 2.3(vi) prior to the issuance of such Shares have been paid.

 

(ii) Delivery of New Warrants Upon Exercise. If this Representative’s Warrant shall have been exercised in part, the Company shall, at the written request of the Holder and upon surrender of this Representative’s Warrant, at the time of delivery of the Shares, deliver to the Holder a new Representative’s Warrant evidencing the rights of the Holder to purchase the unpurchased Shares called for by this Representative’s Warrant, which new Representative’s Warrant shall in all other respects be identical with this Representative’s Warrant.

 

(iii) Rescission Rights. If the Company fails to cause its transfer agent to transmit to the Holder the Shares pursuant to Section 2.3(i) by the Share Delivery Date, unless such failure was not caused by the fault or negligence of the Company, then the Holder will have the right to rescind such exercise upon written notice to the Company within one Trading Day after the Share Delivery Date.

 

3

 

 

(iv) Compensation for Buy-In on Failure to Timely Deliver Shares Upon Exercise. In addition to any other rights available to the Holder, if the Holder has taken all actions necessary under the terms of this Representative’s Warrant for such Holder to receive the Shares, if the Company fails to cause the Transfer Agent to transmit to the Holder the Shares pursuant to an exercise on or before the Share Delivery Date, unless such failure was not caused by the fault or negligence of the Company, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Ordinary Shares to deliver in satisfaction of a sale by the Holder of the which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions and any other applicable fees, if any) for the Ordinary Shares so purchased exceeds (y) the amount obtained by multiplying (1) the number of Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Representative’s Warrant and equivalent number of Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of Ordinary Shares that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Ordinary Shares having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Shares with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Ordinary Shares upon exercise of the Representative’s Warrant as required pursuant to the terms hereof.

 

(v) No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Representative’s Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.

 

(vi) Charges, Taxes and Expenses. Issuance of Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Shares, all of which taxes and expenses shall be paid by the Company, and such Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that, in the event Shares are to be issued in a name other than the name of the Holder, this Representative’s Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all transfer agent fees required for same-day processing of any Notice of Exercise.

 

3. Transfer - General Restrictions. The Holder agrees by his, her or its acceptance hereof, that such Holder will not: (a) sell, transfer, assign, pledge or hypothecate this Representative’s Warrant for a period of one hundred eighty (180) days following the Effective Date to anyone other than: (i) ViewTrade Securities, Inc. or another underwriter or a selected dealer participating in the Offering, or (ii) a bona fide officer or partner of ViewTrade Securities, Inc. or of any such underwriter or selected dealer, in each case in accordance with FINRA Conduct Rule 5110(g)(1), or (b) cause this Representative’s Warrant or the securities issuable hereunder to be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of this Representative’s Warrant or the securities hereunder, except as provided for in FINRA Rule 5110(g)(2). One hundred eighty (180) days after the Effective Date, transfers to others may be made subject to compliance with or exemptions from applicable securities laws. In order to make any permitted assignment, the Holder must deliver to the Company the assignment form attached hereto duly executed and completed, together with this Representative’s Warrant and payment of all transfer taxes, if any, payable in connection therewith. The Company shall within five (5) business days transfer this Representative’s Warrant on the books of the Company and shall execute and deliver a new Representative’s Warrant or Representative’s Warrants of like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate number of Shares purchasable hereunder or such portion of such number as shall be contemplated by any such assignment. The Company shall register this Representative’s Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Representative’s Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.

 

4

 

 

4. Registration. The Company shall be required to keep a registration statement effective on Form S-1 (or Form S-3, if the Company is eligible to use such form) until such date that is the earlier of the date when all of the Shares underlying this Representative’s Warrant have been publicly sold by the Holder or such time as Rule 144 or another similar exemption under the Securities Act of 1933, as amended, is available for the sale of all of such Holder’s Shares underlying this Representative’s Warrant without limitation during a three-month period without registration.

 

5. New Representative’s Warrants to be Issued.

 

5.1 Partial Exercise or Transfer. Subject to the restrictions in Section 3 hereof, this Representative’s Warrant may be exercised or assigned in whole or in part. In the event of the exercise or assignment hereof in part only, upon surrender of this Representative’s Warrant for cancellation, together with the duly executed exercise or assignment form and funds sufficient to pay any Exercise Price and/or transfer tax if exercised pursuant to Section 2 hereto, the Company shall cause to be delivered to the Holder without charge a new Representative’s Warrant of like tenor to this Representative’s Warrant in the name of the Holder evidencing the right of the Holder to purchase the number of Shares purchasable hereunder as to which this Representative’s Warrant has not been exercised or assigned.

 

5.2 Replacement on Loss. Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Representative’s Warrant, the Company, at its own expense, shall execute and deliver a new Representative’s Warrant of like tenor and date. Any such new Representative’s Warrant executed and delivered as a result of such loss, theft, mutilation or destruction shall constitute a substitute contractual obligation on the part of the Company.

 

6. Adjustments.

 

6.1 Adjustments to Exercise Price and Number of Shares. The Exercise Price and the number of Shares underlying this Representative’s Warrant shall be subject to adjustment from time to time as hereinafter set forth:

 

6.1.1 Share Dividends; Split Ups. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding Ordinary Shares is increased by a stock dividend payable in Ordinary Shares or by a split up of Ordinary Shares, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction, then, on the effective day thereof, the number of Shares purchasable hereunder shall be increased in proportion to such increase in outstanding Ordinary Shares, and the Exercise Price shall be proportionately decreased. Any adjustment made pursuant to this Section 6.1.1 shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.

 

5

 

 

6.1.2 Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 6.1.1 above, if at any time during which this Representative’s Warrant is outstanding the Company grants, issues or sells any securities of the Company which by their terms are convertible into or exercisable for Ordinary Shares (“Ordinary Share Equivalents”) or other rights to purchase stock, warrants, securities or other property, pro rata to all of the record holders of the Ordinary Shares (the “Purchase Rights”), and not the Holder, then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of Ordinary Share acquirable upon complete exercise of this Representative’s Warrant immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Ordinary Shares are to be determined for the grant, issue or sale of such Purchase Rights. The provisions of this Section 6.1.2 will not apply to any grant, issuance or sale of Ordinary Share Equivalents or other rights to purchase stock, warrants, securities or other property of the Company which is not made pro rata to all of the record holders of Ordinary Shares.

 

6.1.3 Aggregation of Shares. If, after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding Ordinary Shares is decreased by a consolidation, combination or reclassification of Ordinary Shares or other similar event, then, on the effective date thereof, the number of Shares purchasable hereunder shall be decreased in proportion to such decrease in outstanding Shares, and the Exercise Price shall be proportionately increased.

 

6.1.4 Replacement of Shares upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Ordinary Shares other than a change covered by Section 6.1.1, 6.1.2 or 6.1.3 hereof or that solely affects the par value of such Ordinary Shares, or in the case of any share reconstruction or amalgamation or merger or consolidation of the Company with or into another corporation or other entity (other than a consolidation or share reconstruction or amalgamation in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Ordinary Shares), or in the case of any sale or conveyance to another corporation or entity of the property of the Company as an entirety or substantially as an entirety, or in the case any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another person) is completed pursuant to which holders of Ordinary Shares are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares, or in the case the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (in the case the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another person or group of persons, whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (not including any Ordinary Shares held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination), then the Holder of this Representative’s Warrant shall have the right thereafter (until the expiration of the right of exercise of this Representative’s Warrant) to receive upon the exercise hereof, for the same aggregate Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, share reconstruction or amalgamation, or consolidation, or upon a dissolution following any such sale or transfer, by a Holder of the number of Shares of the Company obtainable upon exercise of this Representative’s Warrant immediately prior to such event; and if any reclassification also results in a change in Shares covered by Section 6.1.1, 6.1.2 or 6.1.3, then such adjustment shall be made pursuant to Sections 6.1.1, 6.1.2 or 6.1.3 and this Section 6.1.4. The provisions of this Section 6.1.4 shall similarly apply to successive reclassifications, reorganizations, share reconstructions or amalgamations, or consolidations, sales or other transfers.

 

6

 

 

6.1.5 Changes in Form of Representative’s Warrant. This form of Representative’s Warrant need not be changed because of any change pursuant to this Section 6.1, and any Representative’s Warrant issued after such change may state the same Exercise Price and the same number of Shares as are stated in the initial Representative’s Warrant. The acceptance by the Holder of the issuance of a new Representative’s Warrant reflecting a required or permissive change shall not be deemed to waive any rights to an adjustment occurring after the Commencement Date or the computation thereof.

 

6.2 Substitute Representative’s Warrant. In case of any consolidation of the Company with, or share reconstruction or amalgamation of the Company with or into, another corporation or other entity (other than a consolidation or share reconstruction or amalgamation which does not result in any reclassification or change of the outstanding Ordinary Shares), the corporation or other entity formed by such consolidation or share reconstruction or amalgamation shall execute and deliver to the Holder a supplemental Representative’s Warrant providing that the holder of each Representative’s Warrant then outstanding or to be outstanding shall have the right thereafter (until the stated expiration of such Representative’s Warrant) to receive, upon exercise of such Representative’s Warrant, the kind and amount of shares of stock and other securities and property receivable upon such consolidation or share reconstruction or amalgamation, by a holder of the number of Shares of the Company for which such Representative’s Warrant might have been exercised immediately prior to such consolidation, share reconstruction or amalgamation, sale or transfer. Such supplemental Representative’s Warrant shall provide for adjustments which shall be identical to the adjustments provided for in this Section 6. The above provision of this Section shall similarly apply to successive consolidations or share reconstructions or amalgamations.

 

6.3 Elimination of Fractional Interests. The Company shall not be required to issue fractions of Shares upon the exercise of this Representative’s Warrant, nor shall it be required to issue scrip or pay cash in lieu of any fractional interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up or down, as the case may be, to the nearest whole number of Shares or other securities, properties or rights.

 

6.4 Notice to Holder.

 

6.4.1 Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 6, the Company shall promptly provide the Holder with a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Shares and setting forth a brief statement of the facts requiring such adjustment.

 

7

 

 

6.4.2 Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Ordinary Shares, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Ordinary Shares, (C) the Company shall authorize the granting to all holders of the Ordinary Share rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Ordinary Shares, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Ordinary Shares are converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall provide the Holder with, at least 10 days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Ordinary Shares of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Ordinary Shares of record shall be entitled to exchange their Ordinary Shares for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to provide such notice or any defect therein or in the provision thereof shall not affect the validity of the corporate action required to be specified in such notice. The Holder shall remain entitled to exercise this Representative’s Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein. Notwithstanding the foregoing, no notice need be given to the Holder if the Company makes a public announcement of the applicable event via nationally distributed press release or via a publicly available and legally compliant filing with the U.S. Securities and Exchange Commission.

 

7. Reservation and Listing; Registration Rights.

 

7.1 The Company shall at all times reserve and keep available out of its authorized Ordinary Shares, solely for the purpose of issuance upon exercise of this Representative’s Warrant, such number of Shares or other securities, properties or rights as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of this Representative’s Warrant and payment of the Exercise Price therefor, in accordance with the terms hereby, all Shares and other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive or similar rights of any stockholder and free and clear of all liens, taxes and charges. As long as this Representative’s Warrant shall be outstanding, the Company shall use commercially reasonable efforts to cause all Shares issuable upon exercise of this Representative’s Warrant to be listed (subject to official notice of issuance) on all national securities exchanges (or, if applicable, on the OTCQB or OTCQX Markets operated by OTC Markets Group, Inc., or any similar over-the-counter market) on which the Shares issued to the public in the Offering may then be listed and/or quoted.

 

7.2 To the extent the Company does not maintain an effective registration statement for the Shares and cashless exercise is unavailable to any Holder under Section 2.2 hereof pursuant to which all of the Shares issuable upon exercise of this Representative’s Warrant under Section 2.2 would be tradable upon exercise of this Representative’s Warrant upon issuance, and in the further event that the Company files a registration statement with the Securities and Exchange Commission to register its Ordinary Shares (other than a registration statement on Form S-4 or S-8, or on another form, or in another context, in which such “piggyback” registration would be inappropriate (including, without limitation, a “universal shelf” registration statement or any prospectus supplement related thereto)), then, for the term of this Representative’s Warrant, the Company shall give written notice of such proposed filing to the Holder as soon as practicable but in no event less than 10 days before the anticipated filing date, which notice shall describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering, and offer to the Holder in such notice the opportunity to register the sale of such number of Shares as such Holder may request in writing within five days following receipt of such notice (a “Piggyback Registration”). The Company shall use commercially reasonable efforts to cause such Shares to be included in such registration and shall use commercially reasonable efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to permit the Shares requested to be included in a Piggyback Registration on the same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of such Shares in accordance with the intended method(s) of distribution thereof. All Holders proposing to distribute their securities through a Piggyback Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form with the underwriter or underwriters selected for such Piggyback Registration. Notwithstanding the provisions of this Section 7.2, such right to request Piggyback Registration shall terminate on the fifth anniversary of the Effective Date, in accordance with FINRA Rule 5110(f)(2)(G)(v).

  

8

 

 

8. Certain Notice Requirements.

 

8.1 Holder’s Right to Receive Notice. Nothing herein shall be construed as conferring upon the Holder the right to vote or consent or to receive notice as a stockholder for the election of directors or any other matter, or as having any rights whatsoever as a stockholder of the Company. If, however, at any time prior to the expiration of this Representative’s Warrant and its exercise, any of the events described in Section 8.2 shall occur, then, in one or more of said events, the Company shall give written notice of such event at least five (5) days prior to the date fixed as a record date or the date of closing the transfer books (the “Notice Date”) for the determination of the stockholders entitled to such dividend, distribution, conversion or exchange of securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of the closing of the transfer books, as the case may be. Notwithstanding the foregoing, the Company shall deliver to each Holder a copy of each notice given to the other stockholders of the Company at the same time and in the same manner that such notice is given to the stockholders; provided, however, that the Company shall not be obligated to provide any written notice under this Section 8 if it makes a public announcement of the applicable event via nationally distributed press release or via a publicly available and legally compliant filing with the U.S. Securities and Exchange Commission.

 

8.2 Events Requiring Notice. The Company shall be required to give the notice described in this Section 8 upon one or more of the following events: (i) if the Company shall take a record of the holders of its shares for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of retained earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company, (ii) the Company shall offer to all the holders of its shares any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option, right or warrant to subscribe therefor, or (iii) a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or share reconstruction or amalgamation) or a sale of all or substantially all of its property, assets and business shall be proposed.

 

8.3 Notice of Change in Exercise Price; Notice of Exercise Price. The Company shall, within five (5) business days after an event requiring a change in the Exercise Price pursuant to Section 6 hereof, send notice to the Holder of such event and change (“Price Notice”). The Price Notice shall describe the event causing the change and the method of calculating the same and shall be certified as being true and accurate by the Company’s Chief Executive Officer and Chief Financial Officer. The Company shall, within five (5) business days after receipt by the Company of a written request by the Holder, send notice to the Holder of the Exercise Price then in effect and the number of Shares or the amount, if any, of other shares of stock, securities or assets then issuable upon exercise of this Representative’s Warrant and shall be certified as being true and accurate by the Company’s Chief Executive Officer and Chief Financial Officer.

 

9

 

 

8.4 Transmittal of Notices. All notices, requests, consents and other communications under this Representative’s Warrant shall be in writing and shall be deemed to have been duly made when (1) hand delivered, (2) mailed by express mail or private courier service, or (3) if sent by electronic mail, on the day the notice was sent if during regular business hours and, if sent outside of regular business hours, on the following business day, to following addresses or to such other addresses as the Company or Holder may designate by notice to the other party:

 

If to the Holder:

 

ViewTrade Securities, Inc.

7280 W. Palmetto Park Rd. Suite # 105

Boca Raton, FL 33433

Attention: Douglas K. Aguililla

Email: dougagui@viewtrade.com

 

with a copy (which shall not constitute notice) to:

 

Dickinson Wright PLLC

350 E. Las Olas Blvd., Suite 1750

Ft. Lauderdale, FL 33301

Attention: Joel D. Mayersohn, Esq.

Email: jmayersohn@dickinsonwright.com

 

If to the Company:

 

MingZhu Logistics Holdings Ltd.

27F Yantian Modern Industry Service Ctr.

No. 3018 Shayan Rd.

Shenzhen, Guangdong, China 518083

Attention: ___________________

Email: ______________________

 

with a copy (which shall not constitute notice) to:

 

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas

New York, New York 10105

Attention: Richard I. Anslow, Esq.

Email: ranslow@egsllp.com

 

9. Miscellaneous.

 

9.1 Amendments. The Company and the Holder may from time to time supplement, modify or amend this Representative’s Warrant by a written agreement signed by the Company and the Holder. All modifications or amendments shall require the written consent of and be signed by the party against whom enforcement of the modification or amendment is sought.

 

10

 

 

9.2 Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Representative’s Warrant.

 

9.3 Entire Agreement. This Representative’s Warrant (together with the other agreements and documents being delivered pursuant to or in connection with this Representative’s Warrant) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.

 

9.4 Binding Effect. This Representative’s Warrant shall inure solely to the benefit of and shall be binding upon, the Holder and the Company and their permitted assignees, respective successors, legal representative and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Representative’s Warrant or any provisions herein contained.

 

9.5 Governing Law; Submission to Jurisdiction; Trial by Jury. This Representative’s Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of Florida, without giving effect to conflict of laws principles thereof. The Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Representative’s Warrant shall be brought and enforced in the U.S. federal and state courts in the Seventeenth Judicial Circuit Court in and for Palm Beach Country, Florida or the United States District Court for the Southern District of Florida, Fort Lauderdale Division, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 8.4 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim. The Company and the Holder agree that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and the Holder hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Representative’s Warrant or the transactions contemplated hereby.

 

9.6 Waiver, etc. The failure of the Company or the Holder to at any time enforce any of the provisions of this Representative’s Warrant shall not be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Representative’s Warrant or any provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Representative’s Warrant. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Representative’s Warrant shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.

 

11

 

 

9.7 Successors and Assigns. Subject to applicable securities laws, this Representative’s Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Representative’s Warrant are intended to be for the benefit of any Holder from time to time of this Representative’s Warrant and shall be enforceable by the Holder or holder of this Representative’s Warrant.

 

9.8 Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Representative’s Warrant or any stock certificate relating to the Shares, if stock certificates are issued, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Representative’s Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Representative’s Warrant or stock certificate, if stock certificates are issued, if mutilated, the Company will make and deliver a new Representative’s Warrant or stock certificate, if stock certificates are issued, of like tenor and dated as of such cancellation, in lieu of such Representative’s Warrant or stock certificate, if stock certificates are issued.

 

9.9 Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Representative’s Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Representative’s Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance or other equitable remedy that a remedy at law would be adequate.

 

9.10 Severability. Wherever possible, each provision of this Representative’s Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Representative’s Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Representative’s Warrant.

 

9.11 Execution in Counterparts. This Representative’s Warrant may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Such counterparts may be delivered by facsimile transmission or other electronic transmission.

 

[Signature Page Follows]

 

12

 

 

IN WITNESS WHEREOF, the Company has caused this Representative’s Warrant to be signed by its duly authorized officer as of the _______ day of                           .

 

MingZhu Logistics Holdings Ltd.  
     
By:    
Name:    
Title:    

 

Acknowledged and Agreed

 

VIEWTRADE SECURITIES, INC.  
     
By:    
Name:    
Title:    

 

13

 

 

Form of Exercise

 

The undersigned holder hereby exercises the right to purchase _________________ shares (“Warrant Shares”) of MingZhu Logistics Holdings Ltd. (the “Company”), evidenced by the attached Representative’s Warrant (the “Representative’s Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Representative’s Warrant. Please issue the Warrant Shares as to which the Representative’s Warrant is exercised in accordance with the instructions given below and, if applicable, a new Representative’s Warrant representing the number of Warrant Shares for which the Representative’s Warrant has not been exercised.

 

1. Form of Exercise Price. The Holder intends that payment of the Exercise Price shall be made as:

 

____________ a “Cash Exercise” with respect to _________________ Warrant Shares; and/or

 

____________ a “Cashless Exercise” with respect to _______________ Warrant Shares.

 

2. Payment of Exercise Price. In the event that the holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto, the holder shall pay the aggregate Exercise Price in the sum of $________ to the Company in accordance with the terms of the Representative’s Warrant.

 

3. Delivery of Warrant Shares. The Company shall deliver to the holder __________ Warrant Shares in accordance with the terms of the Representative’s Warrant. Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:

 

_______________________________

  

The Warrant Shares shall be delivered to the following DWAC Account Number:

 

_______________________________

 

_______________________________

 

_______________________________

 

Date: _______________ __, ______

 

Name of Registered Holder  
     
By:    
Name:    
Title:    

 

14

 

 

INSTRUCTIONS FOR REGISTRATION OF SECURITIES

 

Name:    
  (Print in Block Letters)  
     
Address:      
     
     
     

 

NOTICE: The signature to this form must correspond with the name as written upon the face of the Representative’s Warrant without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank, other than a savings bank, or by a trust company or by a firm having membership on a registered national securities exchange.

 

15

 

 

FORM OF ASSIGNMENT

 

FOR VALUE RECEIVED, the undersigned registered owner of this Representative’s Warrant to which this form is attached, hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned to purchase ordinary shares, par value $0.001 per share, of MINGZHU LOGISTICS HOLDINGS LTD. (the “Company”), evidenced by this Representative’s Warrant, with respect to the number of shares set forth below.

 

Name of Assignee   Address and Phone Number   No. of Shares
         
         
         

 

The undersigned also represents that, by assignment hereof, the Assignee acknowledges that this Representative’s Warrant and the ordinary shares to be issued upon exercise hereof or conversion thereof are being acquired for investment and that the Assignee will not offer, sell or otherwise dispose of this Representative’s Warrant or any ordinary shares to be issued upon exercise hereof or conversion thereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws. Further, the Assignee has acknowledged that upon exercise of this Representative’s Warrant, the Assignee shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the ordinary shares so purchased are being acquired for investment and not with a view toward distribution or resale.

 

 
Signature of Holder
 
Date

 

The undersigned assignee agrees to be bound by all of the terms and conditions of this Representative’s Warrant.

 

 
Signature of Assignee
 
Date

 

 

16

 

Exhibit 10.9

 

GUANGDONG NANYUE BANK

Contract No.: 2019 Nanyue Shenzhen Rongzi No. 00702

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Maximum Credit Agreement

 

(January 2019 Version)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GUANGDONG NANYUE BANK CO., LTD

 

 

 

 

Cautionary Note

 

In order to protect your interests, please read the following notes carefully before signing this agreement:

 

1. You have read all the terms of this agreement and have an accurate understanding of the legal meaning of the rights and obligations and the limitation or exemption clauses of the parties;

 

2. You have made it clear that although the terms of this agreement are the model terms provided by Guangdong Nanyue Bank Co., Ltd., the two parties have fully negotiated and agreed on the relevant terms according to the actual business and your needs. Necessary changes have also been made according to your requirements, so you will not deem this as a “form agreement” at any time;

 

3. You have ensured that the relevant documents and materials submitted to the bank are true, legal and valid;

 

4. You have confirmed that you have the atuhority to sign this agreement. After signing this agreement, you will be deemed to have agreed to all the terms of this agreement;

 

5. You have confirmed that any fraud or breach of contract will bear the corresponding legal consequences;

 

6. You will sign and perform this agreement in good faith and in accordance with the principle of honesty and credit;

 

7. Please use a pen or an ink pen to fill where you need to fill in legibly. If you have any questions about this agreement, you can consult with Guangdong Nanyue Bank Co., Ltd.

 

1

 

 

Maximum Credit Agreement

 

Party A: Guangdong Nanyue Bank Co., Ltd. Shenzhen Branch

Address: Block B, Phase II, Tianli Central Business Plaza, Haide Road, Nanshan District, Shenzhen

Postal Code: 518000

Legal Representative / Principal Responsible Person: Junhong Zhao

Phone: ************* Fax: *************

 

Party B: Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.

Address: 27F, Yantian Modern Industry Service Center, No. 3018 Shayan Road, Yantian District, Shenzhen

Postal Code: 518000 Legal Representative: Jinlong Yang
Phone: ************* Fax:
Bank of Basic Bank Account: Bank Account No.:

 

In accordance with the provisions of relevant laws and regulations of our country, and on the basis of fairness, this agreement is made by both parties.

 

Article 1 Maximum Credit Line and Category

 

1.1 The maximum amount of credit that Party B may apply to Party A for use within the credit period stipulated in this agreement is RMB Ten Million (where different currencies shall be converted at the exchange rate announced by Party A on the date of exchange). The maximum amount of credit referred to in this agreement refers to the amount of exposure limit agreed by Party A to be used by Party B after deduction of the security deposit from Party B or Party B’s guarantor (including the pledge of the certificate of deposit).

 

1.2 The maximum credit under this agreement may be used for the following types of business:

 

þ Loans.

 

þ Bill acceptance.

 

Bill discount.

 

þ Issue a letter of credit (guarantee for delivery).

 

Packaged loan.

 

Import bill.

 

Export remittance.

 

Import payment.

 

Letter of guarantee.

 

Other: ________________

 

2

 

 

Article 2 Maximum Credit Period

 

2.1 The term of validity of the credit stipulated in Article 1 of this agreement is 12 months, from September 12, 2019 to September 12, 2020.

 

2.2 Party A has the right to inspect and review the use of the maximum credit under this agreement at any time, and has the right to adjust the above credit period.

 

Article 3 Guarantee

 

In order to ensure that the claims formed under this agreement can be paid off, one or more of the following guarantees shall be adopted.

 

þ The Maximum Guarantee Contract signed by Party A and guarantor Jinlong Yang (ID: *****************), guarantor Shenzhen Yangang Mingzhu Logistics Co., Ltd.

 

þ The Maximum Mortgage Contract signed by Party A and mortgagor Hongxin Sun (ID: 3*****************), mortgagor Guizhi Yang (ID: *****************)

 

3.2 When Party A signs a Specific Business Contract with Party B under this agreement, Party A has the right to require Party B to provide a separate guarantee in addition to this Article.

 

Article 4 Use of Maximum Credit Line

 

4.1 Within the maximum credit period and the maximum credit amount agreed in this agreement, Party B may use the credit line once or several times. The specific credit type, amount, interest rate and time limit under the credit line shall be subject to the Specific Business Contract and loan IOU or other credit vouchers. Party B shall submit a definitive application to Party A on a case-by-case basis, and after examination and approval by Party A, both parties shall sign a corresponding specific contract or agreement separately, or submit the “application for the opening of letter of credit,” “application for amendment of letter of credit,” “letter of undertaking,” “application for export remittance,” “affidavit” and so on (hereinafter collectively referred to as “Specific Business Contracts”).

 

4.2 The balance of the credit line (that is, all outstanding principal amounts used at any time) shall not exceed the maximum credit line at any time during the credit period. Within the credit period, Party B may re-apply to Party A for the use of the credit line that has been paid off, and resume the use of the credit after the examination and approval of Party A. The unused credit within the credit period is automatically terminated after the expiration of the maximum credit period.

 

4.3 Party B must apply for the use of the credit line within the credit period stipulated in Article 2 of this agreement, the date of occurrence of each Specific Business Contract shall not be later than the deadline of the maximum financing period (that is, the date of issuance of each loan or the date of acceptance / opening of a letter of credit / letter of guarantee / letter of guarantee for the bill of exchange by Party A shall not be later than the deadline of that period). If Party A adjusts the maximum financing period, the deadline shall be the adjusted deadline. The term of use of each maximum financing fund shall be in accordance with the provisions of the Specific Business Contract, and the expiration date of the maximum financing period shall not be restricted by whether the maximum financing period expires or not.

 

4.4 The fees payable by Party A in the business of bills, letters of guarantee and international trade financing under this agreement, the discount rate of bills, the interest rate and exchange rate to be determined in loans and import and export remittance business, shall be agreed between Party A and Party B in each Specific Business Contract.

 

3

 

 

4.5 The agreement in this agreement does not constitute the compulsory obligation of Party A to provide credit to Party B. Party A has the right to adjust the credit period and the maximum credit line under this agreement. Party A shall perform the loan obligation in accordance with the Specific Business Contract only when Party A and Party B sign a Specific Business Contract under this agreement. If the Specific Business Contract signed between Party B and Party A under this agreement is inconsistent with this agreement, the Specific Business Contract shall prevail.

 

4.6 Party B agrees to transfer the credit under this agreement to the following third party, and the third party who uses the credit shall be equal to Party B in the legal status of this agreement and abide by the covenants of Party B in this agreement.

 

The specific transferee and amount is: _________________.

 

Article 5 Rights and Obligations of Party A and Party B

 

5.1 Party B represents and warrants that it is a legal entity registered in accordance with the law and in good standing, has the right to dispose any property under its operation and management, has the right to operate business related to the use of this agreement and its Specific Business Contract, has the right to sign and perform this agreement and Specific Business Contracts.

 

5.2 Party B represents and warrants that the execution of this agreement and its Specific Business Contract has been approved by the superior competent department or the company’s board of directors, shareholders and other authorized institutions, and all necessary authorizations have been obtained.

 

5.3 Party B represents and warrants that the execution and performance of this agreement and the Specific Business Contract does not violate any regulations or agreements binding on Party B and its assets, including but not limited to violation of any guarantee agreement signed by Party B with others or guarantee commitments issued to others.

 

5.4 Party B represents and warrants that all documents and materials provided to Party A are true, accurate, legal and valid.

 

5.5 During the performance of this agreement and the Specific Business Contract, Party B shall, in accordance with the requirements of Party A, cooperate with the inspection and provide timely, including but not limited to:

 

5.5.1 Business license and annual inspection certificate, legal representative code certificate, identification document of legal representative and necessary personal information, a list of board members and principal responsible persons, a list of financial directors, business license, tax registration certificate qualified for annual inspection of the tax department, photocopy of tax certificate and loan certificate (card) provided by the tax department according to the number of years required by Party A;

 

5.5.2 All bank of deposit, accounts, deposits and loans;

 

5.5.3 Audited balance sheet, profit and loss statement, statement of changes in owner’s equity, sales volume, cash flow statement, financial statements and notes provided by Party A for the number of years required by Party A;

 

4

 

 

5.5.4 Production and operation plans, statistical statements and project budget and final accounts data;

 

5.5.5 All external guarantees (including any agencies of Party A);

 

5.5.6 All affiliated enterprises involving related relationship information, related party transactions that have occurred and are about to occur accounting for more than 10% of Party B’s net assets, as well as mutual guarantees within group customers;

 

5.5.7 Litigation, adjudication, administrative penalties, debt disputes and criminal prosecution of individual shareholders or senior management.

 

5.6 The use of the credit by Party B shall comply with the laws and the provisions of this agreement and the Specific Business Contract, and Party A shall have the right to inspect the relevant specific business conditions at any time.

 

5.7 Party B shall notify Party A in writing 30 days prior to any activities, including but not limited to contracting, leasing, trusteeship, asset restructuring, debt restructuring, shareholding reform, joint venture, merger and acquisitions (consolidation), division, compensated transfer of property rights, joint venture (cooperation), reduction of registered capital or application for suspension of business for rectification, application for dissolution (or cancellation), application for reorganization, reconciliation and bankruptcy or any changes in the mode of operation, its own system and legal status, and shall implement the obligation to pay off the debts under this agreement, or provide a new guarantee approved by Party A with the written consent of Party A. Otherwise, the above activities shall not be carried out before paying off all the debts under this agreement.

 

5.8 Party B shall notify Party A in writing within three days, including but not limited to being declared to suspend business for rectification, closure, dissolution (cancellation), being applied for reorganization, bankruptcy, involving major economic disputes, non-payment of debts of any financial institution and so on, or any other circumstances sufficient to adversely affect its normal operation and loss of guarantee capacity, and shall at the same time take sufficient and effective measures to protect Party A’s creditor’s rights.

 

5.9 Party B shall notify Party A in writing within three days after any other circumstances that adversely affect its normal business or Party A’s creditor’s rights, and at the same time take sufficient and effective measures to protect Party A’s creditor’s rights.

 

5.10 Party B shall not sell certain assets, pay off other debts in advance or provide debt guarantee for third parties without the consent of Party A before paying off the principal and interest of the specific business of Party A under this agreement.

 

5.11 Party B shall not sign any contract with any third party that is detrimental to Party A’s rights and interests under this agreement and the Specific Business Contract.

 

5.12 If Party B changes its legal representative, business scope, company articles of association, domicile, name or senior management, Party B shall notify Party A in writing within 7 days after the change.

 

5

 

 

5.13 Party B shall repay the principal and interest of the specific business and relevant expenses incurred under this agreement on time.

 

5.14 Party B represents and warrants that when using international trade credit lines (including packaged loans, import and export remittances, opening letters of credit, guarantees, discounting bills of exchange, acceptance of bills of exchange and so on) to conduct business, it will strictly abide by the Uniform Practice of International Chamber of Commerce (latest version), the Uniform Rules of Collection (URC5 22) and other relevant international practices, and shall not damage Party A’s reputation and interest as a result of any commercial disputes.

 

5.15 When Party B is a group customer, Party B shall provide Party A with relevant information about the group companies, including but not limited to the name of each member of the group customer, legal representative, actual control person, place of registration, registered capital, main business, ownership structure, senior management, financial situation, major asset projects, guarantee and important litigation and so on.

 

5.16 When Party B is a group customer, Party B shall report to Party A timely and in writing any related transactions of more than 10% of its net assets, including but not limited to the relationship between the parties to the transaction, the transaction project and the nature of the transaction, the transaction amount or the corresponding transaction proportion, and the pricing policy of the transaction.

 

5.17 If Party A takes litigation, arbitration or other actions as a result of Party B's breach of this agreement and its Specific Business Contract, Party B shall bear the litigation fees, arbitration fees, preservation fees, announcement fees, evaluation fees, appraisal fees, auction fees, travel expenses, legal fees and other expenses paid by Party A for the realization of the creditor’s rights.

 

5.18 If Party A approves Party B’s application for the use of credit line, it shall be performed in time in accordance with the Specific Business Contract.

 

5.19 Party B agrees that Party A may inquire Party B’s credit from the credit information database established by the People’s Bank of China, and agrees that Party A may provide Party B’s information to the credit information database established by the People’s Bank of China. Party B also agrees that Party A can reasonably use and disclose Party B’s information for business needs.

 

6

 

 

Article 6 Early Repayment

 

6.1. In the course of the performance of this agreement, Party A shall have the right to require Party B to cure any breach of contract, accelerate the agreement, suspend any unused credit, and require Party B to repay the used financing line in advance, compensate Party A for the losses caused by the breach of contract:

 

6.1.1 Party B provides false materials or conceals important operating financial facts;

 

6.1.2 Party B changes the use of financing funds or using financing funds to engage in illegal or illegal activities without the consent of Party A;

 

6.1.3 Party B violates any contract or agreement signed by Party B with others (including Party A of this agreement) or the promise or guarantee made by it unilaterally, which constitutes a serious breach of contract for other debts;

 

6.1.4 The guarantee capacity of the guarantor of this agreement is obviously insufficient, or the pledge or collateral guaranteed for this agreement is damaged or obviously reduced in value, or the pledge or collateral guaranteed for this agreement is sealed up, seized or frozen, and Party B is unable to provide a new guarantee in accordance with the requirements of Party A.

 

6.1.5 During the credit period of this agreement, Party B clearly indicates or indicates by its own conduct that it cannot or will fail to perform its obligations in accordance with this agreement or the Specific Business Contract;

 

6.1.6 Party B transfers property, withdraws funds, evades debts and other acts harmful to Party A’s rights and interests;

 

6.1.7 Party B fails to perform the commitments in Article 5 of this agreement or the obligations stipulated in this agreement or the Specific Business Contract;

 

6.1.8 Party B refuses to accept Party A's supervision and inspection of the use of its credit funds and related business activities;

 

6.1.9 Party B takes advantage of any fictitious contract with a third party to discount or pledge Party A’s claims such as bills and accounts receivable with no actual trade background to defraud Party A of financing;

 

6.1.10 Party B intends to evade the creditor’s rights of Party A through related party transactions;

 

6.1.11 Changes have taken place in Party B’s mode of operation, its own system or legal status, including, but not limited to, contracting, leasing, trusteeship, asset restructuring, debt restructuring, shareholding transformation, joint venture, merger and acquisition (consolidation), division, compensated transfer of property rights, joint venture (cooperation), reduction of registered capital or application for suspension of business for rectification, application for dissolution (or cancellation), application for reorganization, reconciliation and bankruptcy, etc., without the written consent of Party A and fulfilling the liability of paying off the debts of the Specific Business Contract under this agreement or providing a new guarantee approved by Party A;

 

6.1.12 There is a serious crisis in the overall credit, operating and financial conditions of the group customers of Party B, which poses a major threat to the security of Party A’s creditor’s rights;

 

6.1.13 Party B’s business and financial situation becomes deteriorated, unable to pay off the debts due, or involved in major economic complaints, litigation or arbitration or other legal disputes that seriously affect and threaten the realization of Party A’s creditor’s rights;

 

6.1.14 Party B goes out of business, disbanded, suspended, revoked, cancelled and so on;

 

6.1.15 Party B violates any other obligations stipulated in this agreement, or the guarantor violates any obligations under the guarantee contract, which Party A considers to be sufficient to affect the realization of its creditor’s rights.

 

7

 

 

Article 7 Validity

 

This agreement shall take effect from the date of execution of both parties, but before Party B and the guarantor conclude the guarantee contract and complete the formalities agreed in the guarantee contract and the guarantee contract has entered into force, the mortgage has been established, or the pledge has been established, Party A has no obligation to provide Party B with any credit.

 

Article 8 Dispute Resolution

 

8.1 The formation, validity, interpretation, performance and settlement of disputes of this agreement shall be subject to the laws of the People’s Republic of China.

 

8.2 All disputes between Party A and Party B arising from this agreement and/or the Specific Business Contract shall be settled through negotiation. If no negotiation is reached, either party may be settled in the following manner.

 

þ Bring a lawsuit in the People’s Court of the place where Party A locates;

 

Bring a lawsuit in a People’s Court;

 

Apply to Shenzhen International Arbitration Court for arbitration.

 

Article 9 Miscellaneous

 

9.1 Party A and Party B agree as follows with regard to all kinds of notices, agreements and other documents involved in the contract, as well as the service address and legal consequences of the relevant documents and legal documents in the event of a dispute over the contract:

 

9.1.1 Party A confirms that its valid service address is (including but not limited to telex, telephone, fax, e-mail and other addresses) Block B, Phase II, Tianli Central Business Plaza, Haide Road, Nanshan District, Shenzhen.

 

9.1.2 Party B confirms that its valid address for service is (including but not limited to telex, telephone, fax, e-mail, etc.) the address of Party B specified in this agreement.

 

9.1.3 The scope of application of the address for service of both parties shall include all kinds of notices, agreements and other documents when both parties are not sued, as well as the service of relevant documents and legal documents in the event of a dispute over the contract, as well as the first instance, second instance, retrial and enforcement procedures after the dispute is entered into arbitration and civil proceedings.

 

9.1.4 With regard to any notice, request, debt collection letter or other communication given by Party A to Party B under this agreement, telex, telephone, fax and e-mail shall be deemed to have been delivered to Party B. The postal letter shall be deemed to have been delivered to Party B on the third day from the date of mailing.

 

9.1.5 If service is conducted by person, Party B shall sign the date of receipt as service, and if Party B refuses to accept it, the server may record the process of service by means of photo and video recording, and detain the document, which shall also be regarded as service.

 

8

 

 

When Party A’s service address needs to be changed, Party A shall perform the obligation of notification and notify Party B by means of postal letter. If Party B’s service address needs to be changed, Party B shall perform the obligation of notification, notify Party A by way of postal letter.

 

When the parties change their address in arbitration and civil proceedings, they shall perform the obligation to serve the notice of change of address to the arbitration institution and the court.

 

If Party A or Party B fails to perform the notification obligation in the aforementioned manner, the address for service confirmed by both parties shall still be deemed to be a valid address for service. If the legal document fails to be actually accepted by the party concerned because the address for service provided or confirmed by the party is inaccurate, the party concerned fails to inform the other party and the court, or the party or the designated recipient to refuse to sign in time in accordance with the procedure, the date of return of the service shall be regarded as the date of service. In the case of direct service, the date on which the server notes the circumstances on the service receipt on the spot shall be the date of service. If the obligation to notify the change of the address for service is fulfilled, the changed address for service shall be the effective address for service. For the address of service clearly agreed by the above-mentioned parties in this agreement, the court or arbitration institution may directly post the service, even if the parties fail to receive the document served by the court or arbitration institution by mail, it should also be regarded as service because of its agreement in the contract.

 

9.1.6 After the dispute has entered into arbitration or civil proceedings, if the parties respond to the lawsuit and submit a confirmation of the service address directly to the arbitration institution or court and the confirmation address is inconsistent with the service address confirmed before the lawsuit, the address for service which is submitted to the arbitration institution and the court for confirmation shall prevail (the address for service shall apply to the manner of service and the legal consequences of service as provided for in Sections 9.1.3, 9.1.4 and 9.1.5 above).

 

9.1.7 Party B has carefully read the above 9.1.1 to 9.1.6 notice, knows its contents and agrees to use the confirmed address for service as the service address for receiving all kinds of litigation arbitration documents.

 

9.2 Party B shall bear all related expenses such as registration, insurance, notarization, appraisal, evaluation, transportation and safekeeping of pledged property under this agreement and its guarantee contract. If it is paid by Party A in advance, Party A shall have the right to deduct it directly from Party B’s account.

 

9.3 The Specific Business Contracts and annexes signed between Party B and Party A in accordance with this agreement for each specific maximum financing business, including the application for the opening of the letter of credit, the application for amendment of the letter of credit, the undertaking, the application for export remittance and the declaration submitted by Party A are all part of this agreement and constitute the entire agreement and have the same legal effect.

 

9.4   When the option is made by ☐ under this agreement, þ indicates that the clause applies, and ☒ indicates that the clause does not apply.

 

9.5   This agreement shall be made in six copies, with one copy for Party B and five copies for Party A, which shall have the same legal effect.

 

9.6   Other Matters Agreed upon by Both Parties.

 

9.6.1 Any tolerance or preference or delay in the exercise of any rights under this agreement given by Party A to Party B shall not affect, impair or restrict the rights and interests of Party A in accordance with this agreement and laws and regulations, nor shall it be regarded as a waiver of Party A’s rights under this agreement.

 

9.7   Party A has taken a reasonable way to request Party B’s attention to the terms of this agreement that exempt or restrict Party A’s responsibilities, and fully explained the relevant provisions as required by Party B. Party A and Party B have no objection to the understanding of all the terms and conditions of this agreement.

 

9

 

 

Party A: Guangdong Nanyue Bank Co., Ltd. Shenzhen Branch [Company seal affix here]

Legal Representative / Principal Responsible Person (or Authorized Agent) (seal or signature): /s/ Junhong Zhao

September 12, 2019

 

Party A: Shenzhen Yangang Mingzhu Freight Industry Co., Ltd [Company seal affix here]

Legal Representative (or Authorized Agent) (seal or signature): /s/ Jinlong Yang

September 12, 2019

 

 

11

 

 

Exhibit 10.10

 

GUANGDONG NANYUE BANK

 

Contract No.: 2019 Nanyue Shenzhen Jiezi No. ht2019092500000071

 

 

 

 

 

 

 

 

Loan Agreement

 

 

 

(January 2019 Version)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GUANGDONG NANYUE BANK CO., LTD.

 

 

 

 

Cautionary Note

 

In order to protect your interests, please read the following notes carefully before signing this agreement:

 

1. You have read all the terms of this agreement and have an accurate understanding of the legal meaning of the rights and obligations and the limitation or exemption clauses of the parties;

 

2. You have made it clear that although the terms of this agreement are the model terms provided by Guangdong Nanyue Bank Co., Ltd., the two parties have fully negotiated and agreed on the relevant terms according to the actual business and your needs. Necessary changes have also been made according to your requirements, so you will not deem this as a “form agreement” at any time;

 

3. You have ensured that the relevant documents and materials submitted to the bank are true, legal and valid;

 

4. You have confirmed that you have the atuhority to sign this agreement. After signing this agreement, you will be deemed to have agreed to all the terms of this agreement;

 

5. You have confirmed that any fraud or breach of contract will bear the corresponding legal consequences;

 

6. You will sign and perform this agreement in good faith and in accordance with the principle of honesty and credit;

 

7. Please use a pen or an ink pen to fill where you need to fill in legibly. If you have any questions about this agreement, you can consult with Guangdong Nanyue Bank Co., Ltd.

 

 

 

 

Loan Agreement

 

Party A: Guangdong Nanyue Bank Co., Ltd. Shenzhen Branch

Address: Block B, Phase II, Tianli Central Business Plaza, Haide Road, Nanshan District, Shenzhen

Postal Code: 518000

Legal Representative / Principal Responsible Person: Junhong Zhao

Phone: ************* Fax: *************

 

Party B: Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.

Address: 27F, Yantian Modern Industry Service Center, No. 3018 Shayan Road, Yantian District,
Shenzhen

Postal Code: 518000 Legal Representative: Jinlong Yang
Phone: ************* Fax:
Bank of Basic Bank Account: Bank Account No.:

 

In accordance with the provisions of relevant laws and regulations of our country, and on the basis of fairness, this agreement is made by both parties.

 

Article 1 Types of Loans

 

1.1 The loan is a:

 

þ Working capital loan

 

☒  Fixed assets loan

 

Other

 

1.2 The loan under this agreement may be a single loan issued by Party A, or a specific loan under the “Maximum Credit Agreement” between Party A and Party B.

 

Article 2 Loan Amount and Currency

 

2.1 The currency of loan hereunder is þ RMB and ☒ USD and ☒ other currencies           .

 

2.2 The amount of loan hereunder is (in word) Five Million Yuan only.

 

Article 3 Use of Loan

 

3.1 The loan under this agreement shall only be used as working capital. Without the written consent of Party A, Party B shall not change the purpose of the loan, and the lender shall have the right to supervise the use of the funds.

 

Article 4 Term of Loan

 

4.1 The term of loan under this agreement is 12 months from September 29, 2019 to September 29, 2020.

 

1

 

 

4.2 Party B chooses the following ways to withdraw the loan under this agreement:

 

þ Withdraw the full amount on September 29, 2019

 

☒ Withdraw in accordance with following schedule:                                    

 

4.3 Party B chooses the following ways to repay the principal of the loan under this agreement:

 

þ Repay the principal once for all on September 29, 2020.

 

☒ Repay the principal by installments in the following order, time and amount                         

 

4.4 In the event of a discrepancy between the actual withdrawal date and the last maturity date of the loan and the above agreement, the time recorded in the loan voucher under this agreement shall prevail.

 

Article 5 Interest Rate

 

5.1 The interest rate of the loan under this agreement shall be performed in the following manner:

 

þ The loan interest rate under this agreement is 8.5% (annual interest rate). Before the actual issuance of the loan after the signing of this agreement, if the People’s Bank of China adjusts the benchmark interest rate of the loan, the adjusted benchmark interest rate of the same grade loan under this agreement shall be carried out in accordance with the floating proportion stipulated in Section 5.4 of this agreement.

 

The floating interest rate consisting of the spread of      (LIBOR/ HIBOR) +     % for       months. After the loan is issued, the interest rate ☒ remains unchanged or ☒ floats every          months. (LIBOR rate refers to the interbank offer rate published by the British Bankers Association [BBA] and provided by REUTERS and other financial telecommunications terminals issued by the head office of Party A on the morning of 2 business days prior to the date of the lending or 2 business days prior to the date of interest rate adjustment, in terms of the above-mentioned term and currency. HIBOR rate refers to the inter-bank offering rate published by the Hong Kong Bankers Association [HKAB] and provided by REUTERS and other financial telecommunication terminals released by the head office of Party A on the morning of the 2 banking business days before the date of the lending or the 2 banking business days before the date of interest rate adjustment, in the above-mentioned term and currency)

 

5.2 Interest payable on a daily basis from the date of issuance of loans under this agreement shall be settled in one of the following ways:

 

þ The monthly settlement date is 20 days of each month, and the last settlement date is the loan settlement date.

 

☒ The quarterly interest settlement date is the 20 days of the month at the end of each quarter, and the last settlement date is the loan settlement date.

 

☒ The interest settlement date is 20 days of the end of each half year, and the last settlement date is the loan settlement date.

 

☒ The profit shall be paid with the principal, and the interest shall be paid in a lump sum on the date of settlement of the principal.

 

☒ ____________________.

 

2

 

 

5.3 After the RMB loan is issued, if the People’s Bank of China adjusts the benchmark interest rate for the same period, the following adjustment should be made:

 

þ The interest rate of this agreement shall remain unchanged;

 

☒ The interest rate of this agreement shall take effect immediately.

 

☒ If the interest rate of this agreement is adjusted on a monthly basis, the interest rate adjustment date shall be the corresponding day of the month following the adjustment, and if there is no corresponding day of the withdrawal date in that month, the last day of that month shall be taken as the corresponding day, and the adjusted contract interest rate shall apply from the day after the adjustment;

 

☒ If the interest rate of this agreement is adjusted quarterly, the interest rate adjustment date shall be the corresponding day of the full quarter of the withdrawal date, and if there is no corresponding day of the withdrawal date in the current month, the last day of the month shall be taken as the corresponding day, and the adjusted contract interest rate shall apply from the day after the adjustment.

 

☒ If the interest rate of this agreement is adjusted by half a year, the interest rate adjustment date shall be the corresponding date of the withdrawal target for half a year, and if there is no corresponding day of the withdrawal date in the current month, the last day of the month shall be taken as the corresponding day, and the adjusted contract interest rate shall apply from the day after the adjustment.

 

☒ If the interest rate of this agreement is adjusted on an annual basis, the interest rate adjustment date shall be the corresponding date of one year after the withdrawal date, and if there is no corresponding date of the withdrawal date in the current month, the last day of the month shall be taken as the corresponding date, and the adjusted contract interest rate shall apply from the day after the adjustment;

 

☒                        .

 

5.4 When the adjustment is made in accordance with Sections 5.1 and 5.3, it shall be determined by floating         % up or         % down of the benchmark interest rate of the same grade adjusted by the People’s Bank of China.

 

5.5 In the event of a change in the contract loan interest rate, the penalty interest rate under this agreement shall be automatically changed accordingly, and shall be applied at the same time as the contract loan interest rate and calculated by sections.

 

5.6 Party A shall not be required to obtain the consent of Party B for the adjustments made in accordance with the above provisions.

 

Article 6 Conditions for Withdrawal

 

6.1 When Party B applies for withdrawal, the following conditions must be satisfied:

 

6.1.1 Party B has obtained the administrative permission, approval, registration and other legal formalities related to the loans under this agreement in accordance with the relevant laws, regulations and rules;

 

6.1.2 Party B has submitted relevant documents that meet the requirements of Party A;

 

6.1.3 All the guarantee formalities agreed upon by the parties under this agreement have been completed and the effective, the mortgage has been established or the pledge has been established;

 

3

 

 

6.1.4 Party B has not been in any breach of contract agreed upon in this agreement;

 

6.1.5 At the time of withdrawal, the representations and warranties made by Party B in this agreement shall remain true, accurate and valid;

 

6.1.6 At the time of withdrawal, the operating and financial conditions of Party B are basically the same as those at the time of signing this agreement, and no material and adverse changes have taken place;

 

6.1.7 In the case of a project loan, the project capital or other funds to be raised corresponding to the project loan have been fully in place in accordance with the prescribed time and proportion.

 

6.2 After meeting the prerequisites mentioned in Article 6.1, Party B shall go to the location of Party A and withdraw the money and sign the loan voucher with Party A in accordance with this agreement. The loan voucher is an integral part of this agreement and has the same effect as this agreement.

 

6.3 The loan made by Party A when Party B fails to meet the withdrawal conditions does not constitute a defect in Party A’s performance.

 

6.4 Before the issuance of the loan, if Party A is unable to issue a loan under this agreement due to changes in the state macro-control policy, the requirements of Party A's regulatory department for Party A to control the scale of credit or the direction of credit, and other reasons other than Party A's failure to issue loans under this agreement, Party A has the right to stop issuing the loan or terminate this agreement. Party B has no objection to this.

 

Article 7 Methods of Repayment

 

7.1 Party B hereby irrevocably authorizes Party A to transfer the loan once (once / several times) to the following account designated by Party B (account name: Shenzhen Yingang Mingzhu Freight Industry Co., Ltd., Bank Name: Guangdong Nanyue Bank Shenzhen Longhua Branch, Account / Card Number: ************************).

 

7.2 Loans under this agreement shall be paid in the following manner:

 

þ Party A is entrusted to pay. According to Party B’s withdrawal application and payment entrustment, Party A shall pay the loan funds through Party B’s account to Party B for the purpose agreed upon in the contract. Party B shall provide the counterparty name, counterparty account, payment amount and other necessary payment information.

 

This agreement shall pay all the processing fees required for the transfer to Party B by way of fiduciary payment to Party B, which shall be borne by Party B. Party B shall pay the above expenses to Party A when handling the fiduciary payment of each loan.

 

4

 

 

☒ Party B shall make the payment on its own. Party A shall, according to Party B’s withdrawal application, issue the loan funds to Party B after opening an account with Party A, which shall be paid by Party B to any transaction party for the purpose agreed upon in this agreement. Under any of the following circumstances, Party B may, with the consent of Party A, pay independently:

 

(1) Party B is unable to determine the specific transaction party in advance and the amount does not exceed RMB           yuan;

 

(2) Party B does not have the conditions for the effective use of non-cash settlement;

 

(3) Where the loan funds under this agreement are used for production and operation and the amount does not exceed RMB            yuan;

 

(4) Other circumstances under which Party B may pay the loans under this agreement on its own according to laws and regulations:

 

7.3 Party B agrees that even if Party B chooses to pay on its own, Party B shall still be required to pay through entrustment in the following circumstances. The method of payment shall be carried out in accordance with the method of entrustment payment agreed upon in this Section.

 

7.3.1 The amount of a single payment is equal to or exceeds             RMB (in word);

 

7.3.2 The amount of a single payment is equal to or exceeds            per cent of the total investment amount of the project;

 

7.3.3 The amount of a single payment is equal to or exceeds            per cent of the loan amount of this agreement;

 

7.3.4 Other circumstances determined by Party A:

 

7.4 Change of payment method.

 

If the credit score of Party B decreases and the use of loan funds is abnormal in the process of loan payment, the two parties shall negotiate and change the terms of loan issuance and payment.

 

Article 8 Repayment of Loan

 

8.1 Party B undertakes that under no circumstances shall Party B refuse to perform its repayment obligations under this agreement for any reason.

 

8.2 The fund account opened by Party B with Party A specifically for the repayment of the loan is (Account Number: ****************, Account Name: Shenzhen Yingang Mingzhu Freight Industry Co., Ltd., Bank Name: Guangdong Nanyue Bank Shenzhen Longhua Branch).

 

8.3 Party B shall deposit the amount payable (interest and principal) in full into the account opened with Party A as mentioned in Section 8.2 before the end of business hours on the repayment date (interest date, repayment date) (Beijing time). Party A has the right to draw directly from the account. In the event of a statutory holiday, it shall be postponed to the first working day after the end of the statutory holiday.

 

8.4 In the event that Party B has not repaid the amount, Party A shall have the right to deduct directly from any account opened by Party B with any business organization of Guangdong Nanyue Bank, and the outstanding amount in the account shall be deemed to have expired ahead of schedule at the time of deduction, The interest loss arising therefrom shall be borne by Party B. When the currency of the deduction is different from that under this agreement, it shall be converted at the exchange rate price announced by Party A on the date of deduction.

 

5

 

 

8.5 The amount paid by Party B (including the amount actively received by Party A in accordance with this agreement) shall be paid off in the following order: expenses for the realization of creditor's rights and security rights, damages, liquidated damages, compound interest, overdue interest and penalty interest, interest and principal. Party A has the right to change the above order according to its own needs.

 

8.6 Party B shall submit a written application to Party A ten working days in advance for prepayment. With the written consent of Party A, Party B may handle the payment in the following ways:

 

þ Party A shall charge interest according to the loan interest rate and the number of days actually used as stipulated in this agreement;

 

☒ Except for the interest charged according to the loan interest rate and the number of days actually used as stipulated in this agreement, Party A shall have the right to collect compensation at the rate of          % of the prepayment amount. However, the maximum amount of compensation shall not exceed the amount of prepayment × the loan interest rate / 360 × days in advance as agreed in this agreement.

 

8.7 If the actual loan term is shortened as a result of Party B’s prepayment or Party A’s acceleration of the loan in accordance with this agreement, the corresponding interest rate shall not be adjusted and the original loan interest rate shall still be implemented.

 

Article 9 Loan Guarantee

 

9.1 The loan under this agreement shall be guaranteed by one or more of the following

 

☒ The guarantee contract No.               signed by Party A and guarantor                    

 

☒ The mortgage contract No.               signed by Party A and mortgagor                    

 

☒ The pledge contract No.                signed by Party A and pledgor                    

 

9.2 If the claim under this agreement is a claim under the maximum guarantee, one or more of the following guarantees may be taken:

 

þ Maximum Guarantee Contract 2019 Nanyue Shenzhen Maximum Baozi No. 00702-1 and No. 2019 Nanyue Shenzhen Maximum Baozi No. 00702-2 signed by guarantor: Jinlong Yang and Shenzhen Yangang Mingzhu Logistics Co., Ltd. and Party A;

 

þ Maximum Mortgage Contract 2019 Nanyue Shenzhen Maximum Dizi No. 00702-3 and 2019 Nanyue Shenzhen Maximum Dizi No, 00702-4 signed by mortgagor: Jinlong Yang, Hongxin Sun and Guizhi Yang and Party A.

 

9.3 In the event of any change in the guarantee under this agreement which is not beneficial to the creditor’s rights of Party A, Party B shall promptly provide a separate legal and effective guarantee approved by Party A at the request of Party A.

 

9.4 The guarantor shall be liable for withdrawals under the loan contract as agreed in the guarantee contract.

 

6

 

 

Article 10 Rights and Obligations of Party B

 

10.1 Party B represents and warrants that Party B shall have the right to dispose of the property under its management, to carry on the business related to the use of the loan under this agreement, and to sign and perform this agreement as a legal unit registered in accordance with the law and effectively surviving.

 

10.2 Party B represents and warrants that the signing of this agreement has been approved by the competent department at a higher level or by the shareholders (large) meeting, board of directors and other competent bodies of the company in accordance with the law, and has obtained all necessary authorization.

 

10.3 Party B represents and warrants that it will sign and perform this agreement without violating any provisions or agreements that are binding on Party B and its assets, and it will not violate any guarantee agreements, other agreements and any other documents, agreements and undertakings that are binding on Party B.

 

10.4 Party B represents and warrants that it will provide the necessary documents and materials as required by Party A and ensure that the documents and materials provided are true, accurate, complete, legal and valid.

 

10.5 Party B has the right to withdraw and use the loan in accordance with this agreement.

 

10.6 Party B shall use the loan in accordance with the purpose and mode of payment stipulated in this agreement. The borrowed funds shall not be invested in the securities market, futures market or other uses prohibited or restricted by relevant laws and regulations in any form.

 

10.7 Party B shall, in accordance with the requirements of Party A, cooperate with the pre-loan investigation, the loan examination and the post-loan inspection, and provide in a timely manner, among others, the following:

 

10.7.1 Business license and annual inspection certificate, legal representative code certificate, identification document of legal representative and necessary personal information, a list of board members and principal responsible persons, a list of financial directors, business license, tax registration certificate qualified for annual inspection of the tax department, photocopy of tax certificate and loan certificate (card) provided by the tax department according to the number of years required by Party A;

 

10.7.2 All bank of deposit, accounts, deposits and loans;

 

10.7.3 Audited balance sheet, profit and loss statement, statement of changes in owner’s equity, sales volume, cash flow statement, financial statements and notes provided by Party A for the number of years required by Party A;

 

10.7.4 Production and operation plans, statistical statements and project budget and final accounts data;

 

10.7.5 All external guarantees (including any agencies of Party A);

 

7

 

 

10.7.6 All affiliated enterprises involving related relationship information, related party transactions that have occurred and are about to occur accounting for more than 10% of Party B’s net assets, as well as mutual guarantees within group customers;

 

10.7.7 Litigation, adjudication, administrative penalties, debt disputes and criminal prosecution of individual shareholders or senior management;  

 

10.7.8 If Party B pays independently, Party B shall actively cooperate with Party A in the inspection and supervision of the use of the loan funds, and shall collect and report the use of the loan funds to Party A on a regular basis in accordance with the requirements of Party A.

 

10.8 Party B shall repay the principal and interest of the loan in accordance with this agreement.

 

10.9 Party B shall notify Party A in writing 30 days prior to any change in its business mode, system and legal status, including but not limited to contracting, leasing, escrow, asset restructuring, debt restructuring, equity restructuring, joint venture, merger and acquisition (consolidation), division, joint venture (cooperation), reduction of registered capital, application for suspension of business, application for dissolution (or cancellation), application for reorganization, reconciliation and bankruptcy, and shall implement the liability for paying off the debts hereunder with written consent of Party A, or provide a new guarantee approved by Party A in writing; otherwise, such activities shall not be carried out before paying off all debts hereunder.

 

10.10 Party B shall notify Party A in writing within three days after the occurrence of its own system and legal status, including but not limited to being declared closed for rectification, being declared closed, being declared dissolved (cancelled), being applied for reorganization, bankruptcy, being involved in major economic disputes, the debt of any financial institution is due and not paid off, or any other situation that is sufficient to endanger its normal operation and loss of guarantee ability, and shall take full and effective measures to protect Party A’s creditor’s rights.

 

10.11 Within three days after the occurrence of any other circumstances sufficient to endanger the normal operation of Party A or the safety of Party A's creditor's rights, Party A shall be notified in writing to Party A and at the same time take sufficient and effective measures to protect Party A’s claims.

 

10.12 If Party B changes its domicile, business scope, articles of association, name, legal representative or other middle and senior management, Party B shall notify Party A in writing within seven days after the change.

 

10.13 If the mortgage is secured under this agreement, Party B warrants to notify Party A at the first time it learns the information about the impending demolition of the mortgaged property.

 

10.13.1 If the demolition takes the form of compensation for the exchange of property rights, Party B or the mortgagor shall, in accordance with the requirements of Party A, deal with the following:

 

þ To settle the claims under this agreement immediately;

 

☒ Party B shall provide other guarantees that meet the requirements of Party A;

 

☒ The mortgagor shall use the exchanged property as the guaranty of this agreement and re-sign the mortgage contract and go through the mortgage registration; however, before the new mortgage registration is completed, Party B shall provide other guarantees as requested by Party A.

 

8

 

 

10.13.2 If compensation is adopted for demolition and relocation, Party A shall have the right to request Party B or mortgagor to adopt one or more of the following ways:

 

þ To settle the claims under this agreement immediately;

 

þ The compensation shall be deposited into a fixed-term account opened by Party A with the pledge of the certificate of deposit as the guarantee under this agreement;

 

þ Party A shall open a security deposit account and sign a pledge contract to deposit the compensation into the security deposit account as a guarantee under this agreement;

 

þ Party B shall provide other guarantees that meet the requirements of Party A.

 

10.14 Before paying off the principal and interest of Party A’s loan, Party B shall not sell specific assets, pay off other debts in advance, or provide debt guarantee for third parties without the consent of Party A.

 

10.15 Party B shall not at any time sign a contract with any third party which is detrimental to the rights and interests of Party A under this agreement.

 

10.16 In the event of a guarantee, when the guarantor violates any of the obligations or commitments agreed upon in the guarantee contract, or loses the ability to guarantee, Party B shall immediately provide a new guarantee approved by Party A or repay the loan under this agreement in advance.

 

10.17 Party B shall open a basic / general deposit account with Party A, which shall be used exclusively to collect the recovered funds for production and operation, and shall consciously accept the supervision of Party A.

 

10.18 Party B undertakes that until the principal and interest of Party A’s loan is repaid, the financial indicators shall maintain the following standards:   /   .

 

10.19 Party B agrees that Party A shall inquire about the credit status of Party B from the credit information database established by the People’s Bank of China, and agrees that Party A shall provide Party B with the credit information database established by the People’s Bank of China. Party B also agrees that Party A may reasonably use and disclose Party B information for business needs.

 

Article 11 Rights and Obligations of Party A

 

11.1 Party B shall have the right to request Party B to provide information relating to the loans under this agreement.

 

11.2 Have the right to supervise and inspect the use of loans under this agreement, and to understand Party B's business activities, financial situation, provision of guarantees and debt disputes.

 

11.3 If Party B has fully fulfilled its obligations under this agreement and met the conditions for withdrawal, Party A shall issue a loan to Party B in full and on schedule.

 

9

 

 

11.4 Party A shall keep confidential the information and information provided by Party B concerning its debts, finance, production and operation, except as otherwise provided by laws and regulations.

 

11.5 During the period of validity of this agreement, Party A shall issue a notice of change of address in time when Party A changes its domicile.

 

11.6 Party B shall have the right to supervise the withdrawal account of Party B’s funds, including but not limited to the understanding and supervision of the capital income and expenditure of the account, and Party B shall cooperate. If requested by Party A, Party B shall sign a special account supervision agreement with Party A.

 

Article 12 Liability for Breach of Contract

 

12.1 After the entry into force of this agreement, both Party A and Party B shall perform their obligations under this agreement. Failure to perform all or party of this agreement constitutes a breach of this agreement and the breaching party shall bear the corresponding liability for breach of contract.

 

12.2 If due to an event caused by Party B or the guarantor under this agreement, Party B has not completed the corresponding guarantee formalities of this agreement, or Party B has failed to go through the formalities of withdrawal from Party A within 30 days after the loan issuance time stipulated in this agreement (including legal holidays and rest days), Party A shall have the right to terminate this agreement, the outstanding loans shall no longer be issued, and Party A has the right to request for repayment of all the issued loans immediately.

 

12.3 If Party B fails to repay the principal amount of the loan due (including early maturity) in accordance with the repayment period stipulated in this agreement, Party B shall, from the date of overdue, charge 50% as the penalty interest rate at the interest rate stipulated in this agreement, and calculate and collect the overdue interest. If Party B fails to pay the interest within the term of the loan, the compound interest shall be calculated according to the loan interest rate stipulated in this agreement. If the interest is not paid after the expiration of the loan, the compound interest shall be calculated according to the penalty interest rate stipulated in this Section.

 

12.4 If Party B fails to use the loan for the purpose stipulated in this agreement, its principal and interest shall, from the date of breach of contract, be charged 100% as the penalty interest rate at the interest rate agreed upon in this agreement, and the penalty interest and compound interest shall be calculated.

 

12.5 If the loan under this agreement is overdue or not used for the purpose stipulated in the contract, overdue interest, penalty interest and compound interest shall be charged on a monthly basis.

 

12.6 Where Party A pursues litigation, arbitration or other means to realize its creditor's rights as a result of Party B’s breach of contract, Party B shall bear the litigation costs, arbitration fees, security fees, notice fees, evaluation fees, appraisal fees, auction fees, travel expenses, lawyers’ fees and any other expenses incurred by Party A for the realization of the creditor’s rights.

 

10

 

 

12.7 In the event of any of the following breach of contract, Party A has the right to request Party B to cure the breach of contract, declare that all loans issued are due immediately, recover the principal and interest of the loans issued in advance, and stop issuing loans, compensate Party A for the losses caused by the breach of contract and to take corresponding measures to safeguard its legitimate rights and interests in accordance with the law:

 

12.7.1 Party B fails to use the loan or fail to pay the principal, interest and other accounts payable in full in accordance with the purpose and mode of payment stipulated in this agreement;

 

12.7.2 Party B provides Party A with false or concealed loan application documents, balance sheet, income statement and other loan information, or conceals important business financial facts;

 

12.7.3 Party B refuses to accept Party A’s supervision and inspection of its use of loans and related production, business and financial activities;

 

12.7.4 Party B uses the loan to engage in equity investment;

 

12.7.5 Party B uses the loan to engage in speculative business or other illegal or illegal transactions in securities, futures, and real estate;

 

12.7.6 Party B collects loans by borrowing or other means in order to obtain illegal income;

 

12.7.7 Party B defrauds the loan by other fraudulent means;

 

12.7.8 Party B makes use of the false contract with a third party to pledge to Party A with claims such as notes receivable and fictitious accounts receivable with no actual trade background to obtain bank funds;

 

12.7.9 Party B transfers assets at low prices or free of charge to evade bank claims;

 

12.7.10 Party B violates any contract or agreement signed by Party B as a party with others (including Party A of this agreement), or violates any undertaking or guarantee given by Party B;

 

12.7.11 Party B has a deterioration of its financial position and break through the financial targets stipulated in Section 10.18 of this agreement; payment to Party A or other creditors is overdue; Party B is involved in or about to be involved in major disputes; or there has been any other material adverse changes that have or may affect its ability to perform its obligations under this agreement.

 

If Party B changes its mode of operation, its own system or legal status, including but not limited to contracting, leasing, trusteeship, asset restructuring, debt restructuring, shareholding transformation, joint ventures, mergers and acquisitions (consolidation), acquisitions, divisions, paid transfer of property rights, joint ventures (joint ventures), reduction of registered capital or application for closure and rectification, application for dissolution (or revocation), application for reorganization, settlement and bankruptcy, etc., failing to obtain the written consent of Party A and carry out the liability to pay off the debts under this agreement or to provide a new guarantee approved by Party A.

 

12.7.12 The guarantee under this agreement has undergone changes that are not beneficial to the claims of Party A, including but not limited to the mortgage, the destruction, loss, reduction of value or seizure, seizure, freezing of the mortgaged property, the pledged property, the loss of the mortgage or the loss of the value of the pledged property, where the guarantor violates any of the obligations established for it in the guarantee contract and Party B fails to provide the required new guarantee at the request of Party A, or where the guarantor is involved in or is about to be involved in a major action sufficient to affect the creditor’s rights of Party A;

 

11

 

 

12.7.13 The contract of guarantee or other means of guarantee is not effective, invalid, declared to be revoked, or the real right of the security has not been established or cancelled or eliminated in accordance with the law, or the guarantor appears to be partially or wholly incapacitated or expressly fails to perform the guarantee obligation, or if the guarantor violates any of the obligations or commitments agreed in the guarantee contract or violates its contract with a third party, and Party B fails to provide the required new guarantee at the request of Party A.

 

12.7.14 The representations and warranties made by Party B are untrue, inaccurate or materially concealed;

 

12.7.15 Party B expressly or through its own actions indicates its intention not to perform its obligations under this agreement;

 

12.7.16 Where the shareholder or actual control person of Party B is involved in or is about to be involved in a major dispute, which may affect the realization of Party A’s creditor’s rights;

 

12.7.17 If Party B violates any other obligations and commitments agreed upon in this agreement, Party A considers that it is sufficient to affect the realization of its creditor's rights;

 

12.7.18 There are any events that cause a breach of contract under any other credit contract signed by Party A and Party B.

 

Article 13 Effectiveness

 

13.1 This agreement shall be entered into force as of the date of signature of both parties.

 

Article 14 Assignment, Amendment and Termination

 

14.1 After the entry into force of this agreement, Party A may assign all or part of the claims under this agreement to a third party without the consent of Party B.

 

14.2 After the entry into force of this agreement, if Party B transfers all or part of the liabilities under this agreement to a third party, Party B shall submit to Party A in advance a written document in which the guarantor agrees to continue to undertake the guarantee obligations or separately provide a new guarantee approved by Party A and obtain the written consent of Party A.

 

14.3 After the entry into force of this agreement, neither Party A nor Party B shall alter it without the other party’s consent. If modification is required, Party A and Party B shall reach a written amendment.

 

14.4 If Party B applies for the extension of the loan under this agreement, after the examination and approval of Party A, the two parties shall sign an extension agreement. If Party A does not agree to the extension, Party B shall still perform its repayment obligations in accordance with this agreement.

 

14.5 During the performance of this agreement, Party A shall have the right to terminate the agreement, recover the principal and interest of the loan issued in advance, and stop issuing the loan under any of the following circumstances:

 

14.5.1 Where the business and financial situation of Party B deteriorates, Party B is unable to pay off its due debts, or involves major economic proceedings or arbitration and other legal disputes, thus seriously affecting and threatening the realization of Party A’s creditor’s rights;

 

14.5.2 Where there is a serious crisis in the overall credit status, operating condition and financial situation of the customers of the group to which Party B belongs, which poses a major threat to the loan safety of Party A;

 

12

 

 

14.5.3 Where Party B goes out of business, dissolves, closes its business, revokes its business license and cancels its business license;

 

14.5.4 There are other circumstances that may result in threats or serious losses to the realization of Party A’s claims under this agreement.

 

Article 15 Dispute Resolution

 

15.1 All disputes between Party A and Party B arising from this agreement shall be settled through negotiation. If the negotiation fails, the parties shall choose to resolve them in the following ways:

 

þ To bring a lawsuit in the People’s Court of the place where Party A resides;

 

☒ To bring a lawsuit in a People’s Court;

 

☒ Apply to Shenzhen International Court of Arbitration for arbitration.

 

If this agreement is a specific business contract under the “Maximum Credit Agreement” and the dispute settlement agreement is inconsistent with the “Maximum Credit Agreement,” the “Maximum Credit Agreement” shall prevail.

 

Article 16 Miscellaneous

 

16.1 When the legal name, legal representative and domicile of Party B change during the term of this agreement and Party A is not notified in writing, all documents sent by Party A to Party B in accordance with the information contained in this agreement (the sending address shall be subject to the confirmation of the address of service signed by both parties, see Annex for details) shall be deemed to be served.

 

16.1.1 Party A confirms that its valid service address is (including but not limited to telex, telephone, fax, e-mail and other addresses) Block B, Phase II, Tianli Central Business Plaza, Haide Road, Nanshan District, Shenzhen.

 

16.1.2 Party B confirms that its valid address for service is (including but not limited to telex, telephone, fax, e-mail, etc.) the address of Party B specified in this agreement.

 

16.1.3 The scope of application of the address for service of both parties shall include all kinds of notices, agreements and other documents when both parties are not sued, as well as the service of relevant documents and legal documents in the event of a dispute over the contract, as well as the first instance, second instance, retrial and enforcement procedures after the dispute is entered into arbitration and civil proceedings.

 

16.1.4 With regard to any notice, request, debt collection letter or other communication given by Party A to Party B under this agreement, telex, telephone, fax and e-mail shall be deemed to have been delivered to Party B. The postal letter shall be deemed to have been delivered to Party B on the third day from the date of mailing.

 

16.1.5 If service is conducted by person, Party B shall sign the date of receipt as service, and if Party B refuses to accept it, the server may record the process of service by means of photo and video recording, and detain the document, which shall also be regarded as service.

 

13

 

 

When Party A’s service address needs to be changed, Party A shall perform the obligation of notification and notify Party B by means of postal letter. If Party B’s service address needs to be changed, Party B shall perform the obligation of notification, notify Party A by way of postal letter.

 

When the parties change their address in arbitration and civil proceedings, they shall perform the obligation to serve the notice of change of address to the arbitration institution and the court.

 

If Party A or Party B fails to perform the notification obligation in the aforementioned manner, the address for service confirmed by both parties shall still be deemed to be a valid address for service. If the legal document fails to be actually accepted by the party concerned because the address for service provided or confirmed by the party is inaccurate, the party concerned fails to inform the other party and the court, or the party or the designated recipient to refuse to sign in time in accordance with the procedure, the date of return of the service shall be regarded as the date of service. In the case of direct service, the date on which the server notes the circumstances on the service receipt on the spot shall be the date of service. If the obligation to notify the change of the address for service is fulfilled, the changed address for service shall be the effective address for service. For the address of service clearly agreed by the above-mentioned parties in this agreement, the court or arbitration institution may directly post the service, even if the parties fail to receive the document served by the court or arbitration institution by mail, it should also be regarded as service because of its agreement in the contract.

 

16.1.6 After the dispute has entered into arbitration or civil proceedings, if the parties respond to the lawsuit and submit a confirmation of the service address directly to the arbitration institution or court and the confirmation address is inconsistent with the service address confirmed before the lawsuit, the address for service which is submitted to the arbitration institution and the court for confirmation shall prevail (the address for service shall apply to the manner of service and the legal consequences of service as provided for in Sections 16.1.3, 16.1.4 and 16.1.5 above).

 

16.1.7 Party B has carefully read the above 16.1.1 to 16.6.6 notice, knows its contents and agrees to use the confirmed address for service as the service address for receiving all kinds of litigation arbitration documents.

 

16.2 Party B shall bear all related expenses such as registration, insurance, notarization, appraisal, evaluation and transportation under this agreement and its guarantee contract. If it is paid on behalf of Party A, Party A shall have the right to deduct it directly from Party B’s account.

 

16.3 Other Matters Agreed upon by Both Parties.

 

16.3.1 If prior to the signing of this agreement, Party A and Party B have signed the Maximum Credit Agreement (2019 Nanyue Shenzhen Rongzi No. 00702), this agreement shall be the specific business contract under the Maximum Credit Agreement.

 

16.3.2 Party B confirms that Party A has the right to participate in other large financing, asset sale, merger, division, shareholding transformation, bankruptcy liquidation and other activities of Party B to the extent permitted by laws, regulations and regulatory requirements, so as to safeguard its creditor’s rights.

 

16.3.3 Party A shall give Party B any grace or preference or delay in the exercise of any rights under this agreement without affecting, harming or restricting all rights and interests enjoyed by Party A in accordance with this agreement and laws and regulations, nor shall it be regarded as a waiver of Party A’s rights under this agreement.

 

14

 

 

16.4 When the option ☐ is adopted under this agreement, þ shall be marked to indicate the application of the clause and ☒ indicates that the clause does not apply.

 

16.5 This agreement shall be in triplicate, with two copies Party A and one copy to Party B, all of which shall have the same legal effect.

 

16.6 The relevant annexes under this agreement are an integral part of this agreement and have the same legal effect as this agreement.

 

16.7 Party A has taken a reasonable way to request the attention of Party B to the provisions of this agreement that waive or limit Party A’s liability, and fully explain the relevant terms and conditions as required by Party B. Party A and Party B have no objection to the understanding of all the terms and conditions of this agreement.

 

15

 

 

Party A: Guangdong Nanyue Bank Co., Ltd. Shenzhen Branch [Company Seal Affixed Here]

Legal Representative/Person in Charge (or Authorised Agent): /s/ Junhong Zhao

September 29, 2019

 

Party B: Shenzhen Yangang Mingzhu Freight Industry Co., Ltd. [Company Seal Affixed Here]

Legal Representative/Person in Charge (or Authorised Agent): Jinlong Yang [Personal Seal Affixed Here]

September 29, 2019

 

 

16

 

 

Exhibit 10.11

 

[LOGO]GUANGDONG NANYUE BANK

 

Contract no.: 2019 Nanyue Shenzhen Jiezi No. ht2019110100000034

 

Loan Contract

(Version of year 2014)

 

Guangdong Nanyue Bank Co., Ltd.

 

Notice

 

In order to safeguard your interests, please read the following notes carefully before signing this contract:

 

1. you have read all the provisions of this contract and have an accurate understanding of the legal meaning of the parties' rights and obligations and the limitation or exemption of liability;

 

2. You are aware that although the terms of this contract are the model terms provided by Guangdong Nanyue Bank Co., Ltd., the two parties have fully negotiated and reached an agreement on the relevant terms according to the actual business and your needs. The necessary amendments have been made in accordance with your request, so you will not claim to be a "format contract" at any time in this contract;

 

3. You have ensured that the relevant documents and information submitted to the bank are true, legal and valid;

 

4. You have confirmed your right to sign this contract; upon signing this contract, you shall be deemed to have agreed to all the terms of this contract;

 

5. You have confirmed any fraud and the breach of contract will bear the corresponding legal consequences;

 

6. You will sign and perform this contract good faith;

 

7. Please use a pen or signature pen to fill in what you need to fill in.

 

If you have any questions about this contract, you can consult Guangdong Nanyue Bank Co., Ltd.

 

 

 

 

Loan Contract

 

Party A (lender): Guangdong Nanyue Bank Co., LTD. Shenzhen Branch

Address: Block B, Tianli Central Business Plaza Phase Ii, Haide 3rd Road, Nanshan District, Shenzhen
postal code: 518000

Legal representative/principal: Junhong Zhao

Telephone: 0755-36996008

Fax: 0755-86636660

 

Party B (borrower): Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.

Address: Zone A, 27th Floor, Yantian Modern Industry Service Center, No. 3018, Shayan Road,
Yantian District, Shenzhen City

Postal code: 518000

Legal representative: Jinlong Yang

Phone: 0755-25209619

Basic account opening bank: Account number:

 

In accordance with the provisions of the relevant laws and regulations of the people's Republic of China, and on the basis of abiding by the principle of fairness, this contract shall be concluded through negotiation between the two parties.

 

Article 1 Types of Loans

 

1.1 the loan hereunder is:

 

þ Working capital loan

 

☒ Fixed assets loan

 

☒ other ______

 

Article 2 Loan amount and currency

 

2.1 The currency of loan hereunder is þ RMB and ☒ USD and ☒ other currencies_______.

 

2.2 The amount of loan hereunder is (in word) two million yuan in total.

 

Article 3 Use of loan

 

3.1 The loan under this contract shall only be used as purchase of fuel from Fukang Liuyunhu Xinde Kaitong Commerce Co, Ltd. and Zhongrong Zhiyuan Energy (Dalian) Co., Ltd.. Without the written consent of Party A, Party B shall not change the purpose of the loan, and the lender shall have the right to supervise the use of the money.

 

Article 4 Term of loan

 

4.1 The term of loan under this contract is 12 months from November 14, 2019 to November 14, 2020.

 

4.2 Party B chooses the following ways to withdraw the loan under this contract:

 

þ Withdraw once for all on November 14, 2019

 

☒ Withdraw in accordance with following schedule: _________________

 

4.3 Party B chooses the following ways to repay the principal of the loan under this contract:

 

þ Repay the principal once for all on November 14, 2020.

 

☒ Repay the principal by installments in the following order, time and amount____________________

 

4.4 In the event of a discrepancy between the actual withdrawal date and the last maturity date of the loan and the above agreement, the time recorded in the loan voucher under this contract shall prevail.

 

2

 

 

Article 5 Interest rate

 

5.1 The interest rate of the loan under this contract shall be performed in the manner of (3):

 

(1) The fixed interest rate, the annual interest rate is /%, and the interest rate shall remain unchanged for the whole term of the loan.

 

(2) The interest rate of each loan is determined on the basis of pricing plus floating range, in which the pricing basis is the benchmark loan rate of the same grade announced by the people's Bank of China on the date of each loan issuance, The floating range is / (up / down) /% or / (plus / minus) / basis point (one basis point is 0.01%), according to which the interest rate determined is based on the debit / loan voucher record. After each loan is issued, the loan interest rate is adjusted in the following ways:

 

(a) No adjustment shall be made during the whole term of the loan.

 

(b) With / (1/3/6/12) months as a period, adjustment for each phase, calculated by sectional interest. The interest rate adjustment date for the second and subsequent periods shall be the corresponding date after the expiration of the first period of the issue date, On that date, the lender shall adjust the loan interest rate according to the benchmark loan interest rate of the same period of the people's Bank of China and the floating range agreed upon in Article 5.1 (2). If the adjustment month does not have a date corresponding to the release date, the last day of the month is the corresponding date, other periods, and so on.

 

(c) / .

 

(3) the interest rate for each loan is determined on a pricing basis plus a floating range, Among them, the pricing is based on the quoted interest rate (LPR), of þthe one-year or Smore than five-year loan announced by the National Interbank lending Centre on the date of each loan issuance. Floating range is / (up / down) /% or add (add / subtract) 430 basis points (one base point is 0.01%), the interest rate determined accordingly shall be subject to the debit / loan voucher record. After each loan is issued, the loan interest rate is adjusted in the following /manner:

 

(a) No adjustment shall be made during the whole term of the loan.

 

(b) With / (1 / 3 / 6 / 12) months as a period, adjustment for each phase, calculated by sectional interest. The interest rate adjustment date for the second and subsequent periods shall be the corresponding date after the expiration of the first period of the issue date, The lender adjusts the loan interest rate according to the floating range stipulated in (LPR) and Article 5.1 (3) of the loan market quotation rate of ðone year or ð five years and more announced by the National Interbank lending Centre on that date. If there is no date corresponding to the issue date in the month in which the adjustment is made, the last day of the month shall be the corresponding day.

 

(c) /.

 

(4) A floating rate consisting of a spread of / (LIBOR/HIBOR) per month plus / basis point (one basis point is 0.01 per cent). The spread will remain unchanged for the duration of the contract. (LIBOR rate refers to the interbank offer rate published by the British bankers' association [BBA] and provided by REUTERS and other financial telecommunications terminals issued by the head office of party a on the morning of 2 business days prior to the date of the lending or 2 business days prior to the date of interest rate adjustment, in terms of the above-mentioned term and currency. HIBOR rate refers to the inter-bank offering rate published by the Hong Kong bankers association [HKAB] and provided by REUTERS and other financial telecommunication terminals released by the head office of Party A on the morning of the 2 banking business days before the date of the lending or the 2 banking business days before the date of interest rate adjustment, in the above-mentioned term and currency). The interest rate determined accordingly shall be subject to the debit / loan voucher record. After each loan is issued, the loan interest rate is adjusted in the following ways:

 

(a) No adjustment shall be made during the whole term of the loan.

 

3

 

 

B. Take / (1 / 3/ 6 / 12) months as a period, one phase and one adjustment. The interest rate adjustment date for the second and subsequent periods shall be the corresponding date after the expiration of the first period of the issue date, The lender adjusts the loan interest rate according to the floating rate composed of the pricing basis plus / basis point (one basis point is 0.01%) according to the / (LIBOR/HIBOR) of that day / month. If the adjustment month does not have a date corresponding to the release date, the last day of the month is the corresponding date, other periods, and so on.

 

(c) / .

 

(5) others: /

 

5.2 Interest payable on a daily basis from the date of spontaneous issuance of loans under this contract shall be settled in one of the following ways:

 

þ The monthly settlement date is 20 days of each month, and the last settlement date is the loan settlement date.

 

☒ The quarterly interest settlement date is the 20 days of the month at the end of each quarter, and the last settlement date is the loan settlement date.

 

☒ The interest settlement date is 20 days of the end of each half year, and the last settlement date is the loan settlement date.

 

☒ The profit shall be paid with the principal, and the interest shall be paid in a lump sum on the date of settlement of the principal.

 

☒ /.

 

5.3 Monthly interest rate and daily interest rate are converted according to the following formula: monthly interest rate = annual interest rate / 12, daily interest rate = annual interest rate / 360.

 

5.4 In the event of a change in the contract loan interest rate, the penalty interest rate under this contract shall be automatically changed accordingly and shall be applicable at the same time as the contract loan interest rate.

 

5.5 Party A shall not be required to obtain the consent of Party B for the adjustments made in accordance with the above provisions.

 

Article 6 Conditions for withdrawal

 

6.1 When Party B applies for withdrawal, the following prerequisites must be met:

 

6.1.1 Party B has completed the administrative license, approval, registration and other legal formalities related to the loans under this contract in accordance with the relevant laws, regulations and rules;

 

6.1.2 Party B has submitted relevant documents that meet the requirements of Party A;

 

6.1.3 All the guarantee formalities agreed upon by the parties under this contract have been completed and the effective / hypothec has been established / the pledge has been established;

 

6.1.4 Party B has not committed any breach of contract agreed upon in this contract;

 

6.1.5 At the time of withdrawal, the statements and guarantees made by Party B in this contract shall remain true, accurate and valid;

 

4

 

 

6.1.6 At the time of withdrawal, the operating and financial conditions of Party B are basically the same as those at the time of signing this contract, and no significant adverse changes have taken place.

 

6.1.7 In the case of a project loan, the project capital or other funds to be raised corresponding to the project loan have been fully in place in accordance with the prescribed time and proportion.

 

6.2 After meeting the prerequisites mentioned in Article 6.1, Party B shall go to the location of Party A in accordance with this contract, withdraw the money and sign the loan voucher with Party A. The loan voucher is an integral part of this contract and has the same effect as this contract.

 

6.3 The loan made by Party A when Party B fails to meet the withdrawal conditions does not constitute a defect in Party A's performance.

 

6.4 Before the issuance of the loan, if Party A is unable to issue a loan under this contract due to changes in the state macro-control policy, the requirements of Party A's regulatory department for Party A to control the scale of credit or the direction of credit, and other reasons other than Party A's failure to issue loans under this contract, Party A has the right to stop issuing the loan or terminate this contract. Party B has no objection to this.

 

Article 7 Methods of repayment

 

7.1 Party B hereby irrevocably authorizes Party A to transfer the loan once (once / sub) to the following account designated by Party B (account name: Shenzhen Yingang Mingzhu Freight Industry Co., Ltd., bank name Guangdong Nanyue Bank Shenzhen Longhua Branch, Account / card number: 910501230900001451).

 

7.2 loans under this contract shall be paid in the following manner:

 

þ Party A is entrusted to pay. According to Party B's withdrawal application and payment entrustment, Party A shall pay the loan funds through Party B's account to Party B’s counterparty for the purpose agreed upon in the contract. Party B shall provide the counterparty name, counterparty account, payment amount and other necessary payment information.

 

This contract shall pay all the handling fees required for the transfer to Party B by way of fiduciary payment to Party B, which shall be borne by Party B; Party B shall pay the above expenses to Party A when handling the fiduciary payment of each loan.

 

☒ Party B shall pay for it on its own. Party A shall, according to Party B's withdrawal application, issue the loan funds to Party B after opening an account with Party A, which shall be paid by Party B to Party B for the purpose agreed upon in this contract. Under any of the following circumstances, Party B may, with the consent of Party A, pay independently:

 

(1) Party B is unable to determine the specific transaction object in advance and the amount does not exceed RMB _____ yuan;

 

(2) Party B does not have the conditions for the effective use of non-cash settlement;

 

(3) where the loan funds under this contract are used for production and operation and the amount does not exceed RMB ______ yuan;

 

(4) other circumstances in which Party B may pay the loans under this contract on its own according to laws and regulations:

 

7.3 Party B agrees that even if Party B chooses its own mode of payment, Party B shall still be required to pay by fiduciary payment in the following circumstances. The method of payment shall be carried out in accordance with the method of fiduciary payment agreed upon in this paragraph.

 

7.3.1 The amount of a single payment is equal to or exceeds RMB ______ (in word);

 

7.3.2 The amount of a single payment is equal to or exceeds ______ per cent of the total investment amount of the project;

 

5

 

 

7.3.3 The amount of a single payment is equal to or exceeds ______ % of the loan amount of this contract;

 

7.3.4 Other circumstances determined by Party A:

 

7.4 Change of payment method.

 

If the credit status of Party B decreases and the use of loan funds is abnormal in the process of loan payment, the two parties shall negotiate and change the terms of loan issuance and payment.

 

Article 8 Repayment of loans

 

8.1 Party B undertakes that under no circumstances shall Party B refuse to perform its repayment obligations under this contract for any reason.

 

8.2 The fund account opened by Party B with Party A specifically for the repayment of the loan is (Account number: 910501230900001451, Account name: Shenzhen Yingang Mingzhu Freight Industry Co., Ltd., Bank name: Guangdong Nanyue Bank Shenzhen Longhua Branch).

 

8.3 Party B shall deposit the amount payable (interest, principal) in full into the account opened with Party A as mentioned in Article 8.2 before the end of business hours on the repayment date (interest date, repayment date) (Beijing time). Party A has the right to draw directly from the account. In the event of a statutory holiday, it shall be postponed to the first working day after the end of the statutory holiday.

 

8.4 In the event that Party B has not repaid the amount, Party A shall have the right to deduct directly from any account opened by Party B with any business organization of Guangdong Nanyue Bank, and the outstanding amount in the account shall be deemed to have expired ahead of schedule at the time of deduction, The interest loss arising therefrom shall be borne by Party B. When the currency of the deduction is different from that under this contract, it shall be converted at the exchange rate price announced by Party A on the date of deduction.

 

8.5 The amount paid by Party B (including the amount actively received by Party A in accordance with this contract) shall be paid off in the following order: expenses for the realization of creditor's rights and security rights, damages, liquidated damages, compound interest, overdue interest and penalty interest, interest, principal, Party A has the right to change the above order according to its own needs.

 

8.6 Party B shall submit a written application to Party A ten working days in advance for prepayment. With the written consent of Party A, Party B may handle the payment in the following ways:

 

þ Party A shall charge interest according to the loan interest rate and the number of days actually used as stipulated in this contract;

 

☒ Except for the interest charged according to the loan interest rate and the number of days actually used as stipulated in this contract, Party A shall have the right to collect compensation at the rate of ______ % of the prepayment amount. However, the maximum amount of compensation shall not exceed the amount of prepayment × the loan interest rate / 360 × days in advance as agreed in this contract.

 

8.7 If the actual loan term is shortened as a result of Party B's prepayment or Party A's early recovery of the loan in accordance with this contract, the corresponding interest rate shall not be adjusted and the original loan interest rate shall still be implemented.

 

6

 

 

Article 9 Loan guarantee

 

9.1 The loan under this contract shall be guaranteed by one or more of the following

 

☒ The guarantee contract no. ______ signed by Party A and guarantor __________

 

☒ The mortgage contract no. ______ signed by Party A and mortgagor __________

 

☒ The pledge contract no. ______ signed by Party A and pledgor __________

 

9.2 If the claim under this contract is a claim under the maximum guarantee, one or more of the following guarantees may be taken:

 

þ Maximum guarantee contract 2019 Nanyue Shenzhen Maximum Baozi No. 00702-1 and 2019 Nanyue Shenzhen Maximum Baozi No. 00702-2 signed by guarantor: Jinlong Yang and Shenzhen Yangang Mingzhu Logistics Co., Ltd., and Party A;

 

þ Maximum mortgage contract 2019 Nanyue Shenzhen Maximum Dizi No. 00702-3 and 2019 Nanyue Shenzhen Maximum Dizi No. 00702-4 signed by mortgagors: Jinlong Yang, Hongxin Sun and Guizhi Yang, and Party A.

 

9.3 In the event of any change in the guarantee under this contract which is not favorable to the creditor's rights of Party A, Party B shall promptly provide a separate legal and effective guarantee approved by Party A at the request of Party A.

 

9.4 The guarantor shall be responsible for withdrawals under the loan contract as agreed in the guarantee contract.

 

Article 10 Rights and obligations of Party B.

 

10.1 Party B guarantees that Party B shall have the right to dispose of the property under its management, to carry on the business related to the use of the loan under this contract, and to sign and perform this contract as a legal unit registered in accordance with the law and effectively surviving.

 

10.2 Party B warrants that the signing of this contract has been approved by the competent department at a higher level or by the shareholders (large) meeting, board of directors and other competent bodies of the company in accordance with the law, and has obtained all necessary authorization.

 

10.3 Party B warrants that it shall sign and perform this contract without violating any provisions or agreements that are binding on Party B and its assets, Party B shall not violate any guarantee agreements, other agreements and any other documents, agreements and undertakings that are binding on Party B.

 

10.4 Party B guarantees to provide the necessary documents and materials as required by Party A, and to ensure that the documents and materials provided are true, accurate, complete, legal and valid.

 

10.5 Party B has the right to withdraw and use the loan in accordance with this contract.

 

10.6 Party B shall use the loan in accordance with the purpose and mode of payment stipulated in this contract. The borrowed funds shall not be invested in the securities market, futures market or other uses prohibited or restricted by relevant laws and regulations in any form.

 

10.7 Party B shall, in accordance with the requirements of Party A, cooperate with the pre-loan investigation, the loan examination and the post-loan inspection, and provide it in a timely manner. Including, but not limited to:

 

10.7.1 Business license and annual inspection certificate, legal person code certificate, identity certificate of legal representative and necessary personal information, list of members of the board of directors, principal responsible persons and persons in charge of finance, business license, the tax registration certificate of the annual inspection of the tax department, the photocopy of the tax payment certificate of the tax department that meets the requirements of Party A, and the loan card;.

 

10.7.2 Status of deposits, loans and bank account;

 

7

 

 

10.7.3 The audited balance sheet, income statement, statement of changes in owner's equity and sales volume, statement of cash flows, financial statements and notes and notes, as well as prior to the repayment of the loans under this contract, which meet the requirements of Party A. The financial indicators of the enterprise shall be kept within the standards stipulated in this contract:

 

10.7.4 Production and business plans, statistical statements, project budget and final accounts, project progress, transaction contract information;

 

10.7.5 All external guarantees (including any agencies of Party A);

 

10.7.6 Information on all affiliated enterprises and related relationships, related party transactions that have occurred or are about to take place, accounting for more than 10% of their net assets, as well as mutual guarantees within group customers;

 

10.7.7 The occurrence of litigation, arbitration, administrative penalties, debt disputes with others and criminal prosecution of individual shareholders or senior management personnel;

 

10.7.8 If Party B pays independently, Party B shall actively cooperate with Party A in the inspection and supervision of the use of the loan funds, and shall collect and report the use of the loan funds to Party A on a regular basis in accordance with the requirements of Party A.

 

10.8 Party B shall repay the principal and interest of the loan in accordance with this contract.

 

10.9 Party B shall notify Party A in writing 30 days prior to any change in its business mode, system and legal status, including but not limited to contracting, leasing, escrow, asset restructuring, debt restructuring, equity restructuring, joint venture, merger (merger), division, joint venture (cooperation), reduction of registered capital, application for suspension of business, application for dissolution (or cancellation), application for reorganization, reconciliation and bankruptcy, and shall implement the liability for paying off the debts hereunder with written consent of Party A, or provide a new guarantee approved by Party A in writing; otherwise, such activities shall not be carried out before paying off all debts hereunder.

 

10.10 Party B shall notify Party A in writing within three days after the occurrence of its own system and legal status, including but not limited to being declared closed for rectification, being declared closed, being declared dissolved (cancelled), being applied for reorganization, bankruptcy, being involved in major economic disputes, the debt of any financial institution is due and not paid off, or any other situation that is sufficient to endanger its normal operation and loss of guarantee ability, and shall take full and effective measures to preserve party a's creditor's rights.

 

10.11 Within three days after the occurrence of any other circumstances sufficient to endanger the normal operation of Party A or the safety of Party A's creditor's rights, Party A shall be notified in writing to Party A and at the same time take sufficient and effective measures to preserve Party A's claims.

 

10.12 If Party B changes its domicile, business scope, articles of association, name, legal representative or other middle and senior management, Party B shall notify Party A in writing within 7 days after the change.

 

10.13 If the mortgage is secured under this contract, Party B warrants to notify Party A at the first time after learning the information about the impending demolition of the mortgaged property.

 

10.13.1 If the demolition takes the form of compensation for the exchange of property rights, Party B or the mortgagor shall, in accordance with the requirements of Party A, deal with the following:

 

þ To settle the claims under this contract immediately;

 

☒ Party B shall provide other guarantees that meet the requirements of Party A.

 

☒ The mortgagor shall use the exchanged property as the guaranty of this contract and re-sign the mortgage contract and go through the mortgage registration; however, before the new mortgage registration is completed, Party B shall provide other guarantees as requested by Party A.

 

8

 

 

10.13.2 if compensation is adopted for demolition and relocation, Party A shall have the right to request Party B or mortgagor to adopt one or more of the following ways:

 

þ To settle the claims under this contract immediately;

 

þ The compensation shall be deposited into a fixed-term account opened by Party A with the pledge of the certificate of deposit as the guarantee under this contract;

 

þ Party A shall open a margin account and sign a pledge contract to deposit the compensation into the margin account as a guarantee under this contract.

 

þ Party B shall provide other guarantees that meet the requirements of Party A.

 

10.14 Before paying off the principal and interest of Party A's loan, Party B shall not sell specific assets, pay off other debts in advance, or provide debt guarantee for third parties without the consent of Party A.

 

10.15 Party B shall not at any time sign a contract with any third party which is detrimental to the rights and interests of Party A under this contract.

 

10.16 In the event of a guarantee, when the guarantor violates any of the obligations or commitments agreed upon in the guarantee contract, or loses the ability to guarantee, Party B shall immediately provide a new guarantee approved by Party A or repay the loan under this contract in advance.

 

10.17 Party B shall open a basic / general deposit account with Party A, which shall be used exclusively to collect the recovered funds for production and operation, and shall consciously accept the supervision of Party A.

 

10.18 Party B undertakes that until the principal and interest of Party A's loan is repaid, the financial indicators shall maintain the following standards: / .

 

10.19 Party B agrees that Party A shall inquire about the credit status of Party B from the credit information database established by the people's Bank of China, and agrees that Party A shall provide Party B with the credit information database established by the People's Bank of China. Party B also agrees that Party A may reasonably use and disclose Party B information for business needs.

 

Article 11 Rights and obligations of Party A.

 

11.1 Party B shall have the right to request Party B to provide information relating to the loans under this contract.

 

11.2 Have the right to supervise and inspect the use of loans under this contract, and to understand Party B's business activities, financial situation, provision of guarantees and debt disputes.

 

11.3 On the premise that Party B has fully fulfilled its obligations under this contract and met the conditions for withdrawal, Party A shall issue a loan to Party B in full and on schedule.

 

11.4 Party A shall keep confidential the information and information provided by Party B concerning its debts, finance, production and operation, except as otherwise provided by laws and regulations.

 

11.5 During the period of validity of this contract, Party A shall issue a notice of change of address in time when Party A changes its domicile.

 

11.6 Party B shall have the right to supervise the withdrawal account of Party B's funds, including, but not limited to, the understanding and supervision of the capital income and expenditure of the account, and Party B shall cooperate. If requested by Party A, Party B shall sign a special account supervision agreement with Party A.

 

9

 

 

Article 12 Liability for breach of contract.

 

12.1 After the entry into force of this contract, both Party A and Party B shall perform their obligations under this contract. If either party fails to perform or fails to fully perform this contract, it shall constitute a breach of this contract and shall bear the corresponding liability for breach of contract.

 

12.2 Due to the event caused by Party B or the guarantor under this contract, Party B has not completed the corresponding guarantee formalities of this contract in accordance with the contract, or Party B has failed to go through the formalities of withdrawal from Party A at the time stipulated in this contract. If the loan issuance time stipulated in this contract exceeds 30 days (including legal holidays and rest days), Party A shall have the right to terminate this contract, the outstanding loans shall no longer be issued, and the loans issued shall have the right to request Party B to repay them immediately.

 

12.3 If Party B fails to repay the principal amount of the loan due (including early maturity) in accordance with the repayment period stipulated in this contract, Party B shall, from the date of overdue, charge 50% as the penalty interest rate at the interest rate stipulated in this contract, and calculate and collect the overdue interest; If Party B fails to pay the interest within the term of the loan, the compound interest shall be calculated according to the loan interest rate stipulated in this contract; if the interest is not paid after the expiration of the loan, the compound interest shall be calculated according to the penalty interest rate stipulated in this paragraph.

 

12.4 If Party B fails to use the loan for the purpose stipulated in this contract, its principal and interest shall, from the date of breach of contract, be charged 100% as the penalty interest rate at the interest rate agreed upon in this contract, and the penalty interest and compound interest shall be calculated.

 

12.5 If the loan under this contract is overdue or not used for the purpose stipulated in the contract, overdue interest, penalty interest and compound interest shall be charged on a monthly basis.

 

12.6 Where Party A adopts litigation, arbitration or other means to realize its creditor's rights as a result of Party B's breach of contract, Party B shall bear the litigation costs, arbitration fees, security fees, notice fees, evaluation fees, appraisal fees, auction fees, travel expenses, lawyers' fees and any other expenses incurred by Party A for the realization of the creditor's rights.

 

12.7 In the event of any of the following breach of contract, Party A has the right to request Party B to correct the breach of contract, declare that all loans issued are due immediately, recover the principal and interest of the loans issued in advance, and stop issuing loans, compensate Party A for the losses caused by the breach of contract and to take corresponding measures to safeguard its legitimate rights and interests in accordance with the law:

 

12.7.1 Party B fails to use the loan or fail to pay the principal, interest and other accounts payable in full in accordance with the purpose and mode of payment stipulated in this contract;

 

12.7.2 Party B provides Party A with false or concealed loan application documents, balance sheet, income statement and other loan information, or conceals important business financial facts;

 

12.7.3 refusing to accept Party A's supervision and inspection of its use of loans and related production, business and financial activities;

 

12.7.4 Party B uses the loan to engage in equity investment;

 

12.7.5 Party B uses the loan to engage in speculative business or other illegal or illegal transactions in securities, futures, real estate, etc.;

 

12.7.6 Party B collects loans by borrowing or other means in order to obtain illegal income;

 

12.7.7 Party B defrauds the loan by other fraudulent means;

 

12.7.8 Party B makes use of the false contract with a third party to pledge to Party A with claims such as notes receivable and fictitious accounts receivable with no actual trade background to obtain bank funds;

 

10

 

 

12.7.9 Transferring assets at low prices or free of charge to evade bank claims;

 

12.7.10 Party B violates any contract or agreement signed by Party B as a party with others (including Party A of this contract), or violates any undertaking or guarantee given by Party B;

 

12.7.11 Party B shall have a deterioration of its financial position and break through the financial targets stipulated in Article 10.18 of this contract; Party A or other creditors shall be overdue; and Party B shall be involved in or about to be involved in major disputes;

 

Or other material adverse changes that have or may affect its ability to perform its obligations under this contract.

 

If Party B changes its mode of operation, its own system or legal status, including, but not limited to, contracting, leasing, trusteeship, asset restructuring, debt restructuring, shareholding transformation, joint ventures, mergers (mergers), acquisitions, divisions, paid transfer of property rights, joint ventures (joint ventures), reduction of registered capital or application for closure and rectification, application for dissolution (or revocation), application for reorganization, settlement and bankruptcy, etc., failing to obtain the written consent of Party A and carry out the liability to pay off the debts under this contract or to provide a new guarantee approved by Party A.

 

12.7.12 The guarantee under this contract has undergone changes that are not conducive to the claims of Party A, including, but not limited to, the mortgage, the destruction, loss, reduction of value or seizure, seizure, freezing, etc., of the mortgaged property, the pledged property, the loss of the mortgage, the loss of the value of the pledged property, etc., where the guarantor violates any of the obligations established for it in the guarantee contract and Party B fails to provide the required new guarantee at the request of Party A, or where the guarantor is involved in or is about to be involved in a major action sufficient to affect the creditor's rights of Party A;

 

12.7.13 The contract of guarantee or other means of guarantee is not effective, invalid, declared to be revoked, or the real right of the security has not been established or cancelled or eliminated in accordance with the law, or the guarantor appears to be partially or wholly incapacitated or expressly fails to perform the guarantee obligation, or if the guarantor violates any of the obligations or commitments agreed in the guarantee contract or violates its contract with a third party, and Party B fails to provide the required new guarantee at the request of Party A.

 

12.7.14 The statements and warranties made by Party B are untrue, inaccurate or materially concealed;

 

12.7.15 Party B expressly or through its own actions indicates its failure to perform its obligations under this contract;

 

12.7.16 Where the shareholder or actual controller of Party B is involved in or is about to be involved in a major dispute, which may affect the realization of Party A's creditor's rights;

 

12.7.17 If Party B violates any other obligations and commitments agreed upon in this contract, Party A considers that it is sufficient to affect the realization of its creditor's rights;

 

12.7.18 Any events that breach contract under any other credit contract signed between Party B and Party.

 

Article 13 Entry into force of a contract.

 

13.1 This contract shall enter into force as of the date of signature of both parties.

 

Article 14 Assignment, alteration and termination of contracts.

 

14.1 After the entry into force of this contract, Party A may assign all or part of the claims under this contract to a third party without the consent of Party B.

 

11

 

 

14.2 After the entry into force of this contract, if Party B transfers all or part of the liabilities under this contract to a third party, Party B shall submit to Party A in advance a written document in which the guarantor agrees to continue to undertake the guarantee obligations or separately provide a new guarantee approved by Party A subject to the written consent of Party A.

 

14.3 After the entry into force of this contract, neither Party A nor Party B shall alter it without authorization. If changes are required, Party A and Party B shall reach a written change agreement.

 

14.4 If Party B applies for the extension of the loan under this contract, after the examination and approval of Party A, the two parties shall sign an extension agreement. If Party A does not agree to the extension, Party B shall still perform its repayment obligations in accordance with this contract.

 

14.5 During the performance of this contract, Party A shall have the right to terminate the contract, recover the principal and interest of the loan issued in advance, and stop issuing the loan under any of the following circumstances:

 

14.5.1 Where the business and financial situation of Party B deteriorates, Party B is unable to pay off its due debts, or involves major economic proceedings or arbitration and other legal disputes, thus seriously affecting and threatening the realization of Party A's creditor's rights;

 

14.5.2 Where there is a serious crisis in the overall credit status, operating condition and financial situation of the customers of the group to which Party B belongs, which poses a major threat to the loan safety of Party A;

 

14.5.3 Where Party B goes out of business, dissolves, closes its business, revokes its business license and cancels its business license, etc.;

 

14.5.4 Other circumstances that may result in threats or serious losses to the realization of Party A's claims under this contract.

 

Article 15 Settlement of disputes.

 

15.1 All disputes between Party A and Party B arising from this contract shall be settled through consultation. If the negotiation fails, the parties shall choose to resolve them in the following ways:

 

þ To bring a suit in the people's court of the place where Party A resides;

 

☒ To bring a suit in a people's court;

 

☒ Apply to the International Court of Arbitration for arbitration.

 

Article 16 Supplementary provisions.

 

16.1 when the legal name, legal representative and domicile of Party B change during the period of validity of this contract and Party A is not notified in writing, all documents sent by Party A to Party B in accordance with the information contained in this contract (the sending address shall be subject to the confirmation of the address of service signed by both parties, see Annex for details) shall be deemed to be served.

 

16.2 Party B shall bear all related expenses such as registration, insurance, notarization, appraisal, evaluation and transportation under this contract and its guarantee contract. If it is paid on behalf of Party A, Party A shall have the right to deduct it directly from Party B's account.

 

16.3 other matters agreed upon by both parties.

 

16.3.1 if, prior to the signing of this Agreement, Party A and Party B have signed the Maximum Financing Contract 2019 Nanyue Shenzhen Rongzi No. 00702. This Agreement shall be the specific business contract under the Maximum Financing Contract.

 

16.3.2 Party B confirms that Party A has the right to participate in other large financing, asset sale, merger, division, shareholding transformation, bankruptcy liquidation and other activities of Party B to the extent permitted by laws, regulations and regulatory requirements, so as to safeguard its creditor's rights.

 

12

 

 

16.3.3 Party A shall give Party B any tolerance or preference or delay in the exercise of any rights under this contract without affecting, harming or restricting all rights and interests enjoyed by Party A in accordance with this contract and laws and regulations, nor shall it be regarded as a waiver of Party A's rights under this contract. / .

 

16.4 when the option is adopted under this contract, a tick shall be marked to indicate the application of the clause. X indicates that the clause does not apply.

 

16.5 this Agreement shall be in triplicate, Party A in two copies and Party B in one copy, all of which shall have the same legal effect.

 

16.6 the relevant annexes under this contract are an integral part of this contract and have the same legal effect as this contract.

 

16.7 Party A has taken a reasonable way to draw the attention of Party B to the provisions of this contract that waive or limit Party A's liability, and fully explain the relevant terms and conditions as required by Party B. Party A and Party B have no objection to the understanding of all the terms and conditions of this contract.

 

Party A: Guangdong Nanyue Bank Co., LTD. Shenzhen Branch [company seal affixed here]

Legal representative/person in charge (or authorised agent): /s/Junhong Zhao

November 14, 2019

 

Party B: Shenzhen Yangang Mingzhu Freight Industry Co., Ltd. [company seal affixed here]

Legal representative/person in charge (or authorised agent): /s/Jinlong Yang [personal seal affixed here]

November 14, 2019

 

13

 

 

Apendix: Confirmation of address for service.

Party A: Guangdong Nanyue Bank Co., Ltd. Shenzhen Branch.

Address: Block B, Phase II, Tianli Central Business Square, Haide, Nanshan District, Shenzhen City.

Person in charge: Junhong Zhao

 

Party B: Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.

Legal Representative / responsible person: Jinlong Yang

ID card number: 440301197608020314.

Address: District A, 27th floor, Yantian Modern Industrial Service Center, 3018 Sha Yan Road, Yantian
District, Shenzhen City.

Tel. No.: 0755-2520 9619.

 

By negotiation between Party A and Party B (if there are more than one party, in turn), the confirmation of the service address of the "loan contract" (hereinafter referred to as the "original contract") signed between Party A and Party B, 2019 Nanyue Shenzhen Jiezi No. ht2019110100000034 (hereinafter referred to as the "original contract"), is agreed in this supplementary agreement as follows: The agreement and other documents as well as the address for service and legal consequences of the relevant documents and legal documents in the event of a dispute over the contract shall be as follows:

 

1. Party A confirms that its valid address for service is (including, but not limited to, telex, telephone, fax, email, etc.) Block B, Phase II, Tianli Central Business Plaza, Haide San Road, Nanshan District, Shenzhen City.

 

2. Party B confirms that its valid address for service is (including, but not limited to, telex, telephone, fax, email, etc.) Area A, 27th floor, Yantian Modern Industrial Service Center, 3018 Shayan Road, Yantian District, Shenzhen City.

 

3. The applicable scope of the address for service between the parties includes the service of various notices, agreements and other documents when the parties are not suing, as well as the service of relevant documents and legal documents in the event of a dispute over the contract, and at the same time includes the entry of the dispute into the first instance, the second instance, the retrial and the execution procedure after the civil procedure.

 

4. Any notice, request, debt collection letter or other communication given to Party B by Party A under this contract, of which telex, telephone, fax, email, etc., shall be deemed to have been served on Party B;

 

The postal letter shall be deemed to have been served on Party B on the third day from the date of posting;

 

If a person is sent for special service, Party B shall be deemed to have served on the date of signature and receipt, and if Party B refuses to accept it, the sender may record the process of service by means of photo and video recording, and retain the document, which shall also be regarded as service.

 

5. When Party A's service address needs to be changed, Party A shall fulfill its notification obligation and notify Party B by mail;

 

When Party B's service address needs to be changed, Party B shall fulfill its notification obligation and notify Party A by mail.

 

When the address of the parties changes in arbitration and civil proceedings, the party shall perform the obligation to serve the notice of change of address to the arbitration institution and the court of law.

 

14

 

 

If Party A or Party B fails to perform its notification obligations in accordance with the above-mentioned manner, the delivery address confirmed by both parties shall still be regarded as a valid address for service,

 

Due to the inaccuracy of the place of delivery provided or confirmed by the party, and the failure to inform the other party and the court, the party or the designated recipient of the refusal to sign in accordance with the procedure after the change of the address of service, if the legal document fails to be actually received by the party concerned, if it is served by post, the date of return of the document shall be deemed to be the date of service; In the case of direct service, the date on which the sender notes the circumstances on the return certificate of service on the spot shall be the date of service; if the obligation to know the change of service address is fulfilled, the changed address of service shall be taken as the valid address for service.

 

As for the address of service clearly agreed upon by the parties in the contract, the court or arbitration institution may directly send the service. Even if the parties fail to receive the document of service by mail from the court or arbitration institution, it shall be deemed as service due to the agreement in the contract.

 

6. After the dispute enters into arbitration or civil proceedings, if the parties take the action and directly submit the confirmation of service address to the arbitration institution or court, if the confirmed address is inconsistent with the confirmed address of service before litigation, the service address submitted to the arbitration institution or court for confirmation shall prevail (the service address shall be subject to the service method and legal consequences of service as stipulated in Article 3, Article 4 and Article 5 above).

 

7. Party B has carefully read the notice of this confirmation of the address of service, knows its contents, and agrees to use the confirmed address of service as the address for the receipt of all kinds of litigation documents.

 

8. This Supplementary Agreement is an integral part of the original contract. Where this supplementary agreement is inconsistent with the original contract, this supplementary agreement shall prevail, and the remaining provisions shall still be implemented in accordance with the original contract.

 

9. This supplementary agreement shall enter into force as of the date of signature of Party A and Party B and shall be valid for the same period as the original contract.

 

10. This supplementary agreement is in triplicate, Party A holds two copies and Party B holds one copy.

 

Party A: Guangdong Nanyue Bank Co., LTD. Shenzhen Branch [company seal affixed here]

Legal representative/person in charge (or authorised agent): /s/Junhong Zhao

Date: November 14, 2019

 

Party B: Shenzhen Yangang Mingzhu Freight Industry Co., Ltd. [company seal affixed here]

Legal representative/person in charge (or authorised agent): /s/Jinlong Yang [personal seal affixed here]

Date: November 14, 2019

 

 

15

 

Exhibit 10.13

 

EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (the “Agreement”), is entered into as of _______________, 20____ (the “Effective Date”), by and between MingZhu Logistics Holdings Limited, a Cayman Islands exempted company (the “Company”) and _______________, an individual (the “Executive”). Except with respect to the direct employment of the Executive by the Company, the term “Company” as used herein with respect to all obligations of the Executive hereunder shall be deemed to include the Company and all of its direct and indirect subsidiaries (collectively, the “Group”).

 

RECITALS

 

WHEREAS, the Company desires to employ the Executive as its _________and to assure itself of the services of the Executive during the term of Employment (as defined below); and

 

WHEREAS, the Executive desires to be employed by the Company as its _________ during the term of Employment and upon the terms and conditions of this Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement, the parties agree as follows:

 

1. POSITION

 

The Executive hereby accepts the position of _________ of the Company and any other officer or employee positions with other Group members as may be approved by the Board (as defined below).

 

2. TERM

 

Subject to the terms and conditions of this Agreement, the initial term of the Employment shall be one (1) year commencing on the Effective Date, unless terminated earlier pursuant to the terms of this Agreement. The Employment will be renewed automatically for additional one (1) year terms if neither the Company nor the Executive provides a notice of termination of the Employment to the other party within thirty (30) days prior to the expiration of the applicable term.

 

3. DUTIES AND RESPONSIBILITIES

 

(a) The Executive’s duties at the Company will include all the duties and responsibilities associated with a _______ of a U.S. listed public company with primary operations in the People’s Republic of China. As _________ of the Company, the Executive shall be primarily responsible for _________, as well as all tasks and responsibilities normally associated with the offices of _________ of a trucking services provider of similar size and nature to the Company. During the term of Employment, Executive shall report to and be responsible to the Company’s board of directors (including any designated audit or other committee thereof) (the “Board”). Executive shall also perform such other duties and responsibilities as may be determined by the Board, as long as such duties and responsibilities are consistent with those of the Company’s _________.

 

(b) The Executive shall devote all of Executive’s working time, attention and skills to the performance of Executive’s duties to the Company and the Group and shall faithfully and diligently serve the Company and the Group in accordance with this Agreement, the memorandum and articles of association of the Company, as amended and restated from time to time, and the guidelines, policies and procedures of the Company approved from time to time by the Board.

 

 

 

 

(c) The Executive shall use Executive’s best efforts to perform Executive’s duties hereunder. The Executive shall not, without the prior written consent of the Board, become an employee of any entity other than the Company and any member of the Group, and shall not be concerned or interested in any business or entity that engages in the same business in which the Company or any member of the Group engages (any such business or entity, a “Competitor”), provided that nothing in this clause shall preclude the Executive from holding less than one percent (1%) of the outstanding equity of any Competitor that is listed on any securities exchange or recognized securities market anywhere. The Executive shall notify the Company in writing of Executive’s interest in such securities in a timely manner and with such details and particulars as the Company may reasonably require.

 

(d) The Executive acknowledges the Executive’s and the Company’s public reporting obligations associated with the Executive’s position of the Company under applicable securities laws, rules and regulations, and the Executive shall use the Executive’s efforts to comply with all such reporting obligations that are Executive’s personal responsibility; provided that the Company agrees to provide the Executive with assistance and support with respect to all such filings (including making such filings on the Executive’s behalf).

 

4. NO BREACH OF CONTRACT

 

The Executive hereby represents to the Company that: (i) the execution and delivery of this Agreement by the Executive and the performance by the Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any other agreement or policy to which the Executive is a party or otherwise bound except for agreements entered into by and between the Executive and any member of the Group pursuant to applicable law, if any; (ii) that the Executive has no information (including, without limitation, confidential information and trade secrets) relating to any other person or entity which would prevent, or be violated by, the Executive from entering into this Agreement or carrying out Executive’s duties hereunder; (iii) that the Executive is not bound by any confidentiality, trade secret or similar agreement (other than this) with any other person or entity except for other member(s) of the Group, as the case may be.

 

5. LOCATION

 

The Executive will be based in Guangdong Province, China. The Company reserves the right to transfer or second the Executive to any location in China or elsewhere in accordance with its operational requirements.

 

6. COMPENSATION AND BENEFITS

 

(a) Base Salary. The Executive’s initial pre-tax base salary shall be USD$_________ per month, paid monthly in arrears in accordance with the Company’s regular payroll practices, and such compensation is subject to annual review and adjustment by the Board in its sole discretion.  The Executive shall also be entitled to receive salary, as and in the amount approved by the Board in advance, from any member of the Group.

 

(b) Bonus. The Executive shall be eligible for cash bonuses as determined by the Board in its sole discretion.

 

(c) Equity Incentives. To the extent the Company adopts and maintains an equity incentive plan, the Executive will be eligible to participate in such plan pursuant to the terms thereof as determined by the Board.

 

2

 

 

(d) Benefits. The Executive is eligible for participation in any standard employee benefit plan of the Company that currently exists or may be adopted by the Company in the future, including, but not limited to, any retirement plan, life insurance plan, health insurance plan and travel/holiday plan, provided that such plans shall be subject to review and approval by the Board.

 

(e) Expenses. The Executive shall be entitled to reimbursement by the Company for all reasonable ordinary and necessary travel and other expenses incurred by the Executive in the performance of Executive’s duties under this Agreement; provided that he/she properly accounts for such expenses in accordance with the Company’s policies and procedures.

 

7. TERMINATION OF THE AGREEMENT

 

The Executive’s employment may be terminated as provided for in this Section 7.

 

(a) By the Company.

 

(i) For Cause. The Company may terminate the Employment for cause, at any time, without notice or remuneration (unless notice or remuneration is specifically required by applicable law, in which case notice or remuneration will be provided in accordance with applicable law), if:

 

(1) the Executive is convicted or pleads guilty to a felony or to an act of fraud, misappropriation or embezzlement;

 

(2) the Executive has been grossly negligent or acted dishonestly to the detriment of the Company;

 

(3) the Executive has engaged in actions amounting to willful misconduct or failed to perform Executive’s duties hereunder and such failure continues after the Executive is afforded not less than fifteen (15) days to cure such failure;

 

(4) the Executive’s willful failure to comply with a lawful directive of the Board; or

 

(5) the Executive violates Sections 8, 9 or 10 of this Agreement.

 

Upon termination for “cause”, the Executive shall be entitled to the amount of base salary earned and not paid prior to termination. However, the Executive will not be entitled to receive payment of any severance benefits or other amounts by reason of the termination, and the Executive’s right to all other benefits will terminate, except as required by any applicable law.

 

(ii) For Death and Disability. The Company may also terminate the Employment, at any time, without notice or remuneration (unless notice or remuneration is specifically required by applicable law, in which case notice or remuneration will be provided in accordance with applicable law), if:

 

(1) the Executive has died, or

 

3

 

 

(2) the Executive has a disability which shall mean a physical or mental impairment which, as reasonably determined by the Board, renders the Executive unable to perform the essential functions of Executive’s employment with the Company, with or without reasonable accommodation, for more than 120 days in any 12-month period, unless a longer period is required by applicable law, in which case that longer period would apply.

 

Upon termination for death or disability, the Executive shall be entitled to the amount of base salary earned and not paid prior to termination. However, the Executive will not be entitled to receive payment of any severance benefits or other amounts by reason of the termination, and the Executive’s right to all other benefits will terminate, except as required by any applicable law.

 

(iii) Without Cause. The Company may terminate the Employment without cause, at any time, upon thirty (30) days’ prior written notice. Upon termination without cause, the Company shall provide the following severance payments and benefits to the Executive: a cash payment of one (1) month of the Executive’s base salary as of the date of such termination for each year (which is any period longer than six months but no more than one year) and a cash payment of half month of the Executive’s base salary as of the date of such termination for any period of employment no more than six months, provided that the total severance payments shall not exceed twelve months of the Executive’s base salary.

 

Upon termination without cause, the Executive shall also be entitled to the amount of base salary earned and not paid prior to termination.

 

In order to be eligible for, and as a condition precedent for the payment of, the severance payments and benefits under this Section 7(a)(iii), the Executive must execute and deliver to the Company a general release of the Company and all members of the Group and their affiliates in a form annexed hereto as Exhibit A.

 

(iv) Change of Control Transaction. If the Company or its successor terminates the Employment upon a merger, consolidation, or transfer or sale of all or substantially all of the assets of the Company with or to any other individual(s) or entity (the “Change of Control Transaction”), the Executive shall be entitled to the following severance payments and benefits upon such termination: (1) a lump sum cash payment equal to three (3) months of the Executive’s base salary at a rate equal to the greater of Executive’s annual salary in effect immediately prior to the termination, or Executive’s then current annual salary as of the date of such termination; (2) a lump sum cash payment equal to a pro-rated amount of Executive’s target annual bonus for the year immediately preceding the termination; (3) payment of premiums for continued health benefits under the Company’s health plans for three (3) months following the termination; and (4) immediate vesting of 100% of the then-unvested portion of any outstanding equity awards held by the Executive.

 

(b) By the Executive. The Executive may terminate the Employment at any time with thirty (30) days’ prior written notice to the Company without cause, if (1) there is a material reduction in the Executive’s authority, duties and responsibilities unless such reduction was made with Executive’s consent, or (2) there is a material reduction in the Executive’s annual salary (the occurrences in (1) and (2) being referred to as “Good Reason”). Upon the Executive’s termination of the Employment due to either of the above reasons, the Company shall provide compensation to the Executive equivalent to three (3) months of the Executive’s base salary that he/she is entitled to immediately prior to such termination. In addition, the Executive may resign prior to the expiration of the Agreement if such resignation is approved by the Board or an alternative arrangement with respect to the Employment is agreed to by the Board.

 

4

 

 

In order to be eligible for, and as a condition precedent for the payment of, the severance payments and benefits under this Section 7(b), the Executive must execute and deliver to the Company a general release of the Company and all members of the Group and their affiliates in a form annexed hereto as Exhibit A.

 

(c) Notice of Termination. Any termination of the Executive’s employment under this Agreement shall be communicated by written notice of termination from the terminating party to the other party. The notice of termination shall indicate the specific provision(s) of this Agreement relied upon in effecting the termination.

 

(d) Resignation of All Other Positions. Immediately upon the effective date of any termination of the Executive’s Employment for any reason, the Executive shall resign in writing from membership on the Board or the board of directors of any Group member and from any and all offices Executive holds at the Company or Group Member.

 

(e) No Mitigation. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, nor shall the amount of any payment hereunder be reduced by any compensation earned by the Executive as a result of employment by a subsequent employer.

 

8. CONFIDENTIALITY AND NONDISCLOSURE

 

(a) Confidentiality and Non-Disclosure. The Executive hereby agrees at all times during the term of the Employment and after its termination, to hold in the strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person, corporation or other entity without written consent of the Company, any Confidential Information. The Executive understands that “Confidential Information” means any proprietary or confidential information of the Company, its affiliates, or their respective clients, customers or partners, including, without limitation, technical data, trade secrets, research and development information, product plans, services, customer lists and customers, supplier lists and suppliers, software developments, inventions, processes, formulas, technology, designs, hardware configuration information, personnel information, marketing, finances, information about the suppliers, joint ventures, franchisees, distributors and other persons with whom the Company does business, information regarding the skills and compensation of other employees of the Company or other business information disclosed to the Executive by or obtained by the Executive from the Company, its affiliates, or their respective clients, customers or partners either directly or indirectly in writing, orally or otherwise, if specifically indicated to be confidential or reasonably expected to be confidential. Notwithstanding the foregoing, Confidential Information shall not include information that is generally available and known to the public through no fault of the Executive.

 

(b) Company Property. The Executive understands that all documents (including computer records, facsimile and e-mail) and materials created, received or transmitted in connection with Executive’s work or using the facilities of the Company are property of the Company and subject to inspection by the Company, at any time. Upon termination of the Executive’s employment with the Company (or at any other time when requested by the Company), the Executive will promptly deliver to the Company all documents and materials of any nature pertaining to Executive’s work with the Company and will provide written certification of Executive’s compliance with this Agreement. Under no circumstances will the Executive have, following Executive’s termination, in Executive’s possession any property of the Company, or any documents or materials or copies thereof containing any Confidential Information.

 

5

 

 

(c) Former Employer Information. The Executive agrees that he/she has not and will not, during the term of Executive’s employment, (i) improperly use or disclose any proprietary information or trade secrets of any former employer or other person or entity with which the Executive has an agreement or duty to keep in confidence information acquired by Executive, if any, or (ii) bring into the premises of the Company any document or confidential or proprietary information belonging to such former employer, person or entity unless consented to in writing by such former employer, person or entity. The Executive will indemnify the Company and hold it harmless from and against all claims, liabilities, damages and expenses, including reasonable attorneys’ fees and costs of suit, arising out of or in connection with any violation of the foregoing.

 

(d) Third Party Information. The Executive recognizes that the Company may have received, and in the future may receive, from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. The Executive agrees that the Executive owes the Company and such third parties, during the Executive’s employment by the Company and thereafter, a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person or firm and to use it in a manner consistent with, and for the limited purposes permitted by, the Company’s agreement with such third party.

 

This Section 8 shall survive the termination of this Agreement for any reason. In the event the Executive breaches this Section 8, the Company shall have right to seek remedies permissible under applicable law.

 

9. CONFLICTING EMPLOYMENT

 

The Executive hereby agrees that, during the term of Executive’s employment with the Company, he/she will not engage in any other employment, occupation, consulting or other business activity related to the business in which the Company is now involved or becomes involved during the term of the Executive’s employment, nor will the Executive engage in any other activities that conflict with Executive’s obligations to the Company without the prior written consent of the Company.

 

10. NON-COMPETITION, NON-SOLICITATION AND NON-DISPARAGEMENT

 

In consideration of the salary paid to the Executive by the Company, the Executive agrees that during the term of the Employment and for a period of twelve (12) months following the termination of the Employment for whatever reason:

 

(a) The Executive will not approach clients, customers or contacts of the Company or the Group, users of the Company’s or the Group’s services, or other persons or entities introduced to the Executive in the Executive’s capacity as a representative of the Company or the Group for the purposes of doing business with such persons or entities which will harm the business relationship between the Company or the Group and such persons and/or entities;

 

(b) the Executive will not assume employment with or provide services as a director, consultant or otherwise for any Competitor, or engage, whether as principal, partner, licensor or otherwise, in any Competitor;

 

(c) the Executive will not seek, directly or indirectly, by the offer of alternative employment or other inducement whatsoever, to solicit the services of any officer, director, or employee of or consultant to the Company or any member of the Group employed or engaged as at or after the date of such termination, or in the twelve (12) months preceding such termination; and

 

6

 

 

(d) the Executive will not make public statements or communications that disparage the Company, any Group member, or any of their respective business, officers, directors or employees.

 

The provisions contained in Section 10 are considered reasonable by the Executive in order to protect the legitimate business interest of the Company and the Group. In the event that any such provisions should be found to be void under applicable laws but would be valid if some part thereof was deleted or the period or area of application reduced, such provisions shall apply with such modification as may be necessary to make them valid and effective.

 

This Section 10 shall survive the termination of this Agreement for any reason. In the event the Executive breaches this Section 10, the Executive acknowledges that there will be no adequate remedy at law, and the Company or the applicable member of the Group shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate). In any event, the Company or any applicable member of the Group shall have right to seek all remedies permissible under applicable law.

 

11. COOPERATION

 

The parties agree that certain matters in which the Executive will be involved during the Executive’s employment by the Company may necessitate the Executive’s cooperation in the future. Accordingly, following the termination of Executive’s employment for any reason, to the extent reasonably requested by the Company, the Executive shall cooperate with the Company in connection with matters arising out of the Executive’s service to the Company; provided that, the Company shall make reasonable efforts to minimize disruption of the Executive’s other activities. It is expressly agreed that non-compliance with a request for cooperation services by the Executive for good reason, including health condition or prior commitments, shall not constitute a breach or violation of this Agreement. The Company shall reimburse the Executive for reasonable expenses incurred in connection with such cooperation.

 

12. INDEMNIFICATION.

 

The Company shall, to the maximum extent provided under applicable law, indemnify and hold the Executive harmless from and against any expenses, including reasonable attorneys’ fees, judgments, fines, settlements and other legally permissible amounts (“Losses”), incurred in connection with any proceeding arising out of, or related to, Executive’s performance of the Employment, other than any such Losses incurred as a result of the Executive’s gross negligence or willful misconduct. The Company shall advance to the Executive any expenses, including reasonable attorneys’ 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 the Executive in defense of any such proceeding shall be paid by the Company 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 the Executive or on Executive’s behalf to repay the amounts so advanced if it shall ultimately be determined pursuant to any non-appealable judgment or settlement that the Executive is not entitled to be indemnified by the Company.

 

13. WITHHOLDING TAXES

 

Notwithstanding anything else herein to the contrary, the Company may withhold (or cause there to be withheld, as the case may be) from any amounts otherwise due or payable under or pursuant to this Agreement such national, provincial, local or any other income, employment, or other taxes as may be required to be withheld pursuant to any applicable law or regulation.

 

7

 

 

14. WORK MADE FOR HIRE

 

The Executive acknowledges that, by reason of being employed by the Company at the relevant times, to the extent permitted by law, all of the work product consisting of copyrightable subject matter (“Work Product”) is “work made for hire” as defined in 17 U.S.C. § 101 and similar applicable intellectual property law of other jurisdictions in which the Group operates and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, the Executive hereby irrevocably assigns to the Company, for no additional consideration, the Executive’s entire right, title, and interest in and to all Work Product and intellectual property rights therein, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title, or interest in any Work Product or intellectual property rights so as to be less in any respect than that the Company would have had in the absence of this Agreement.

 

15. ASSIGNMENT

 

This Agreement is personal in its nature and neither of the parties hereto shall, without the consent of the other, assign or transfer this Agreement or any rights or obligations hereunder; provided, however, that (i) the Company may assign or transfer this Agreement or any rights or obligations hereunder to any member of the Group without such consent of the Executive, and (ii) in the event of a Change of Control Transaction, this Agreement shall, subject to the provisions hereof, be binding upon and inure to the benefit of such successor of the Company and such successor shall discharge and perform all the promises, covenants, duties, and obligations of the Company hereunder.

 

16. SEVERABILITY

 

If any provision of this Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions or applications of this Agreement which can be given effect without the invalid provisions or applications and to this end the provisions of this Agreement are declared to be severable.

 

17. ENTIRE AGREEMENT

 

This Agreement constitutes the entire agreement and understanding between the Executive and the Company regarding the terms of the Employment and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The Executive acknowledges that he/she has not entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set forth in this Agreement. Any amendment to this Agreement must be in writing and signed by the Executive and the Company.

 

18. GOVERNING LAW; JURISDICTION

 

This Agreement and all issues pertaining to the Employment or the termination of the Employment shall be governed and interpreted in accordance with the laws of the State of New York without regard to choice of law principles, except the arbitration provision which shall be governed by the Federal Arbitration Act. Executive agrees that if, for any reason, any provision hereof is unenforceable, the remainder of this Agreement will nonetheless remain binding and in effect. Any dispute regarding the Employment or this Agreement, other than any injunctive relief available under Section 10 hereof, which cannot be resolved by negotiations between the Executive and the Company shall be submitted to, and solely determined by, final and binding arbitration conducted by the International Chamber of Commerce in accordance with its arbitration rules applicable to employment disputes, and the parties agree to be bound by the final award of the arbitrator in any such proceeding. The arbitrator shall apply the laws of the State of New York with respect to the interpretation or enforcement of this Agreement, or to any claims involving the Employment or the termination of the Employment. All questions regarding whether or not a dispute is subject to arbitration will be resolved by the arbitrator. Arbitration shall be held in such place as the parties may mutually agree. Judgment upon the award by the arbitrator may be entered in any court having jurisdiction, including in the People’s Republic of China. The arbitrator shall award costs and attorney fees to the prevailing party. As part of this Agreement, Executive agrees that Executive may not participate in a representative capacity or as a member of any class of claims pertaining to any claim against the Company. There is no right or authority for any claims subject to this Agreement to be arbitrated on a class or collective action basis or on any basis involving claims brought in a purported representative capacity on behalf of any other person or group of people similarly situated. Such claims are prohibited. Furthermore, claims brought by or against either the Company or the Executive may not be joined or consolidated in the arbitration with claims brought by or against any other person or entity unless otherwise agreed to in writing by all parties involved.

 

8

 

 

19. AMENDMENT

 

This Agreement may not be amended, modified or changed (in whole or in part), except by a formal, definitive written agreement expressly referring to this Agreement, which agreement is executed by both of the parties hereto.

 

20. WAIVER

 

Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

 

21. 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) sent by a recognized courier with next-day or second-day delivery, or (iv) by email, to the last known address of the other party, with communications to the Company being to the attention of the Board.

 

22. COUNTERPARTS

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which together shall constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories.

 

Photographic or electronic copies of such signed counterparts may be used in lieu of the originals for any purpose, and signed counterparts may be delivered by electronic means.

 

23. NO INTERPRETATION AGAINST DRAFTER

 

Each party recognizes that this Agreement is a legally binding contract and acknowledges that it, or he/she has had the opportunity to consult with legal counsel of choice. In any construction of the terms of this Agreement, the same shall not be construed against either party on the basis of that party being the drafter of such terms.

 

24. ACKNOWLEDGMENT OF FULL UNDERSTANDING

 

THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF EXECUTIVE’S CHOICE BEFORE SIGNING THIS AGREEMENT.

 

[Remainder of this page has been intentionally left blank.]

 

9

 

 

IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.

 

  MINGZHU LOGISTICS HOLDINGS LIMITED
   
  By:                  
    Name:
    Title:
   
  EXECUTIVE
   
         
  Name:

 

10

 

 

EXHIBIT A

 

GENERAL RELEASE AND COVENANT NOT TO SUE

 

TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT:

 

_______________ (“Executive”), on Executive’s own behalf and on behalf of Executive’s descendants, dependents, heirs, executors and administrators and permitted assigns, past and present, in consideration for the amounts payable and benefits to be provided to Executive under the employment agreement (the “Agreement”) made and entered into as of ____________, 20__ (the “Effective Date”), by and between Executive and MingZhu Logistics Holdings Limited (the “Company”) (each individually, “Party,” collectively, the “Parties”), does hereby covenant not to sue or pursue any litigation or arbitration against, and waives, releases and discharges the Company, its parents, subsidiaries, affiliates, divisions, assigns, predecessors, insurers, successors, and the past and present employees, officers, directors, insurers, attorneys, representatives and agents thereof, both individually and in their business capacities, and their employee benefit plans and programs and their administrators and fiduciaries (collectively, the “Releasees”), from any and all claims, demands, rights, judgments, defenses, actions, charges or causes of action whatsoever, of any and every kind and description, whether known or unknown, accrued or not accrued, that Executive ever had, now has or shall or may have or assert as of the date of this General Release and Covenant Not to Sue against the Releasees relating to Executive’s employment with the Company or service as a member of the Board of Directors of the Company or the termination thereof or Executive’s service as an officer or member of the Board of Directors of any subsidiary or affiliate of the Company or the termination of such service; provided, however, that nothing herein shall release the Company from any of its obligations to Executive under the Employment Agreement or to pay the amounts and provide the benefits upon which this General Release and Covenant Not to Sue is conditioned, or any rights Executive may have to indemnification under any charter (or similar documents) of any member of the Releasees or any insurance coverage under any directors and officers insurance or similar policies, or any rights Executive may have as a member or holder of equity or other securities of the Company or its affiliates.

 

Executive further agrees that this General Release and Covenant Not to Sue may be pleaded by the Company as a full defense to any action, suit or other proceeding covered by the terms hereof that is or may be initiated, prosecuted or maintained by Executive or Executive’s heirs or assigns.  Executive understands and confirms that Executive is executing this General Release and Covenant Not to Sue voluntarily and knowingly.

 

In furtherance of the agreements set forth above, Executive hereby expressly waives and relinquishes any and all rights under any applicable statute, doctrine or principle of law restricting the right of any person to release claims that such person does not know or suspect to exist at the time of executing a release, which claims, if known, may have materially affected such person’s decision to give such a release.  In connection with such waiver and relinquishment, Executive acknowledges that Executive is aware that Executive may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those that Executive now knows or believes to be true, with respect to the matters released herein.  Nevertheless, it is the intention of Executive to fully, finally and forever release all such matters, and all claims relating thereto, that now exist, may exist or theretofore have existed, as specifically provided herein.  The Parties hereto acknowledge and agree that this waiver shall be an essential and material term of the release contained above.  Nothing in this paragraph is intended to expand the scope of the release as specified herein.

 

No provision of this General Release and Covenant Not to Sue should be read as preventing Executive from making a report to, filing a charge or complaint with, or participating in any investigation or proceeding conducted by, any governmental agency. While Executive may participate in such investigation or proceeding, Executive acknowledges and agrees that Executive waives Executive’s right to recover monetary damages, of any kind, in such investigation or proceeding arising from, or in any way relating to, Executive’s employment with, or separation from, the Company that may have arisen prior to Executive’s signing of this General Release and Covenant Not to Sue. Executive acknowledges that this Release prohibits Executive from pursuing any claims against the Company seeking monetary relief for Executive and/or as a representative on behalf of others.

 

11

 

 

This General Release and Covenant Not to Sue shall be governed by and construed in accordance with the laws of the State of New York, applicable to agreements made and to be performed entirely within such State without regard to principles of conflicts of laws.

 

To the extent that Executive is forty (40) years of age or older, this paragraph shall apply.  Executive acknowledges that Executive has been offered a period of time of at least twenty-one (21) days to consider whether to sign this General Release and Covenant Not to Sue, and the Company agrees that Executive may cancel or revoke this General Release and Covenant Not to Sue at any time during the seven (7) days following the date on which this General Release and Covenant Not to Sue has been signed by the Parties to this General Release and Covenant Not to Sue.  In order to cancel or revoke this General Release and Covenant Not to Sue, Executive must deliver to the Company written notice stating that Executive is canceling or revoking this General Release and Covenant Not to Sue.  If this General Release and Covenant Not to Sue is timely cancelled or revoked, none of the provisions of this General Release and Covenant Not to Sue shall be effective or enforceable and the Company shall not be obligated to make certain payments to Executive or to provide Executive with certain other benefits described in the Agreement, and all contracts and provisions modified, relinquished or rescinded hereunder shall be reinstated to the extent in effect immediately prior hereto.

 

Executive acknowledges and agrees that Executive has entered into this General Release and Covenant Not to Sue knowingly and willingly and has had ample opportunity to consider the terms and provisions of this General Release and Covenant Not to Sue. Executive is hereby advised to consult legal counsel prior to execute this General Release and Covenant Not to Sue.

 

IN WITNESS WHEREOF, the undersigned has caused this General Release and Covenant Not to Sue to be executed on this _____ day of _____________, 20__.

 

  Executive
   
   
  Name:

 

 

12

 

Exhibit 10.14

 

MingZhu Logistics Holdings Limited

明珠货运控股有限公司

27F, Yantian Modern Industry Service Center

No. 3018 Shayan Road, Yantian District

Shenzhen, Guangdong, China 518081

 

[Date]

 

[Name and Address]

 

Re: Director Offer Letter

 

Dear ______________:

 

MingZhu Logistics Holdings Limited明珠货运控股有限公司, a Cayman Islands company (the “Company”) is pleased to offer you a position as a member of the Company’s Board of Directors (the “Board”).  We are very impressed with your credentials, and we look forward to your future success in this role.

 

This letter shall constitute an agreement (“Agreement”) between you and the Company and contains all the terms and conditions relating to the services you are to provide.

 

1. Term.  This Agreement shall have an initial term of one year, beginning on [                          ] (the “Appointment Date”). Your term as director shall continue subject to the provisions in Section 7 below or until your successor is duly elected and qualified.  The position shall be up for re-election each year at the Company’s annual general meeting and upon re-election, the terms and provisions of this Agreement shall remain in full force and effect.

 

2. Services. You shall render services as a member of the Board in accordance with high professional and ethical standards and in accordance with all applicable laws and rules and regulations pertaining to your performance hereunder.  You shall be required to attend all meetings of the Board called from time to time either in-person or by telephone.  Should you be elected to serve on a committee of the Board, you shall be required to attend such number of meetings of such committee as required by its members pursuant to the charter of such committee or as may be called from time to time.  The services described in this Section 2 shall hereinafter be referred to as your “Duties.” 

 

3. Services for Others.  You shall be free to represent or perform services for other persons during the term of this Agreement.  You agree, however, that you do not presently perform and do not intend to perform, during the term of this Agreement, similar Duties, consulting, or other services for companies whose businesses are or would be, in any way, competitive with the Company (except for companies previously disclosed by you to the Company in writing).  Should you propose to perform similar duties, consulting, or other services for any such company, you agree to notify the Company in writing in advance (specifying the name of the organization for whom you propose to perform such services) and to provide information to the Company sufficient to allow it to determine if the performance of such services would conflict with areas of interest to the Company.

 

 

 

 

4. Compensation.

 

4.1. Cash.  Commencing on the Appointment Date, and upon each anniversary thereof that you remain a director, you shall receive cash compensation of $[                   ] for each calendar year of service under this Agreement on a pro-rated basis.  Notwithstanding the foregoing to the contrary, all fees are subject to approval and/or change as deemed appropriate by the Compensation Committee of the Board.  You shall be reimbursed for reasonable expenses documented and incurred by you in connection with the performance of your Duties (including travel expenses for meetings you attend in-person).

 

4.2. Service on Board Committee(s).  Should you be named to a committee of the Board, the Compensation Committee of the Board will determine any additional compensation, if any, for serving on such committee.  However, the Company currently does not plan to provide any additional compensation to members of Committees of the Board other than the chairmen of such committees. 

 

5. No Assignment.  Because of the personal nature of the services to be rendered by you, this Agreement may not be assigned by you without the prior written consent of the Company.

 

6. Confidential Information; Non-Disclosure.  In consideration of your access to the premises of the Company and/or you access to certain Confidential Information of the Company, in connection with your business relationship with the Company, you hereby represent and agree as follows:

 

6.1.  Definition.  For purposes of this Agreement, the term “Confidential Information” means:

 

a. Any information that the Company possesses that has been created, discovered, or developed by or for the Company, and that has or could have commercial value or utility in the business in which the Company is engaged; or

 

b. Any information that is related to the business of the Company and is generally not known by non-Company personnel.

 

c. By way of illustration, but not limitation, Confidential Information includes trade secrets and any information concerning products, processes, formulas, designs, inventions (whether or not patentable or registrable under copyright or similar laws, and whether or not reduced to practice), discoveries, concepts, ideas, improvements, techniques, methods, research, development and test results, specifications, data, know-how, software, formats, marketing plans, and analyses, business plans and analyses, strategies, forecasts, customer and supplier identities, characteristics, and agreements.

 

6.2. Exclusions.  Notwithstanding the foregoing, the term Confidential Information shall not include:

 

a. Any information that becomes generally available to the public other than as a result of a breach of the confidentiality portions of this Agreement, or any other agreement requiring confidentiality between the Company and you;

 

b. Information received from a third party in rightful possession of such information who is not restricted from disclosing such information; and

 

c. Information known by you prior to receipt of such information from the Company, which prior knowledge can be documented.

 

2

 

 

6.3.  Documents.  You agree that, without the express prior written consent of the Company, you will not remove from the Company’s premises, any notes, formulas, programs, data, records, machines, or any other documents or items that in any manner contain or constitute Confidential Information, nor will you make reproductions or copies of same. In the event you receive any such documents or items by personal delivery from any duly designated or authorized personnel of the Company, you shall be deemed to have received the express written consent of the Company.  In the event that you receive any such documents or items, other than through personal delivery as described in the preceding sentence, you agree to inform the Company promptly of your possession of such documents or items.  You shall promptly return any such documents or items, along with any reproductions or copies to the Company upon the Company’s demand, upon termination of this Agreement, or upon your termination or resignation, as provided in Section 7 herein.

 

6.4. No Disclosure.  You agree that you will hold in trust and confidence all Confidential Information and will not disclose to others, directly or indirectly, any Confidential Information or anything relating to such information without the prior written consent of the Company, except as maybe necessary in the course of your business relationship with the Company. You further agree that you will not use any Confidential Information without the prior written consent of the Company, except as may be necessary in the course of your business relationship with the Company, and that the provisions of this Section 6.4 shall survive termination of this Agreement.

 

7. Termination and Resignation.  Your membership on the Company’s Board may be terminated for any or no reason or you may also terminate your membership on the Board for any or no reason except as provided in the Company’s Memorandum and Articles of Association, as amended from time to time. Upon the effective date of the termination or resignation, your right to compensation hereunder will terminate subject to the Company’s obligations to pay you any cash compensation (or equivalent value in ordinary shares of the Company), if application, that you have already earned and to reimburse you for approved expenses already incurred in connection with your performance of your Duties as of the effective date of such termination or resignation.

 

8.  Independent ContractorYou understand, acknowledge and agree that your relationship with the Company is that of an independent contractor and nothing in this Agreement is intended to or should be construed to create a relationship other than that of independent contractor. Nothing in this Agreement shall be construed as a contract of employment/engagement between you and the Company or as a commitment on the part of the Company to retain you in any capacity, for any period of time or under any specific terms or conditions, or to continue your service to the Company beyond any period.

 

9.  Governing Law; Consent to Jurisdiction All questions with respect to the construction and/or enforcement of this Agreement, and the rights and obligations of the parties hereunder, shall be determined in accordance with the laws of [New York] applicable to agreements made. The parties hereby consent to the jurisdiction of the courts having jurisdiction over matters arising in [New York] for any proceeding arising out of or relating to this Agreement. The parties agree that in any such proceeding, each party shall waive, if applicable, inconvenience of forum and right to a jury.

 

10. Entire Agreement; Amendment; Waiver; Counterparts.  This Agreement expresses the entire understanding with respect to the subject matter hereof and supersedes and terminates any prior oral or written agreements with respect to the subject matter hereof.  Any term of this Agreement may be amended and observance of any term of this Agreement may be waived only with the written consent of the parties hereto.  Waiver of any term or condition of this Agreement by any party shall not be construed as a waiver of any subsequent breach or failure of the same term or condition or waiver of any other term or condition of this Agreement.  The failure of any party at any time to require performance by any other party of any provision of this Agreement shall not affect the right of any such party to require future performance of such provision or any other provision of this Agreement.  This Agreement may be executed in separate counterparts each of which will be an original and all of which taken together will constitute one and the same agreement, and may be executed using facsimiles of signatures, and a facsimile of a signature shall be deemed to be the same, and equally enforceable, as an original of such signature.

 

3

 

 

This Agreement has been executed and delivered by the undersigned and is made effective as of the date set first set forth above.

 

  Sincerely,
   
  MingZhu Logistics Holdings Limited明珠货运控股有限公司

 

  By:                    
    Name: Jinlong Yang
    Title: Chief Executive Officer

 

Agreed to and accepted:

 

   
[Director name]  

 

 

4

 

Exhibit 10.15

 

[LOGO]GUANGDONG NANYUE BANK

 

Contract no.: 2019 Nanyue Shenzhen Jiezi No. ht2019111500000032

 

Loan Contract

(Version of year 2014)

 

Guangdong Nanyue Bank Co., Ltd.

Notice

 

In order to safeguard your interests, please read the following notes carefully before signing this contract:

 

1. you have read all the provisions of this contract and have an accurate understanding of the legal meaning of the parties’ rights and obligations and the limitation or exemption of liability;

 

2. You are aware that although the terms of this contract are the model terms provided by Guangdong Nanyue Bank Co., Ltd., the two parties have fully negotiated and reached an agreement on the relevant terms according to the actual business and your needs. The necessary amendments have been made in accordance with your request, so you will not claim to be a “format contract” at any time in this contract;

 

3. You have ensured that the relevant documents and information submitted to the bank are true, legal and valid;

 

4. You have confirmed your right to sign this contract; upon signing this contract, you shall be deemed to have agreed to all the terms of this contract;

 

5. You have confirmed any fraud and the breach of contract will bear the corresponding legal consequences;

 

6. You will sign and perform this contract good faith;

 

7. Please use a pen or signature pen to fill in what you need to fill in.

 

If you have any questions about this contract, you can consult Guangdong Nanyue Bank Co., Ltd.

 

 

 

 

Loan Contract

Party A (lender): Guangdong Nanyue Bank Co., LTD. Shenzhen Branch

Address: Block B, Tianli Central Business Plaza Phase Ii, Haide 3rd Road, Nanshan District, Shenzhen postal code: 518000

Legal representative/principal: Junhong Zhao

Telephone: 0755-36996008

Fax: 0755-86636660

 

Party B (borrower): Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.

Address: Zone A, 27th Floor, Yantian Modern Industry Service Center, No. 3018, Shayan Road, Yantian District, Shenzhen City

Postal code: 518000

Legal representative: Jinlong Yang

Phone: 0755-25209619

Basic account opening bank:                                                   Account number:

 

In accordance with the provisions of the relevant laws and regulations of the people’s Republic of China, and on the basis of abiding by the principle of fairness, this contract shall be concluded through negotiation between the two parties.

 

Article 1 Types of Loans

 

1.1 the loan hereunder is:

 

þ Working capital loan

 

Fixed assets loan

 

other           

 

Article 2 Loan amount and currency

 

2.1 The currency of loan hereunder is þ RMB and ☒ USD and ☒ other currencies                 .

 

2.2 The amount of loan hereunder is (in word) three million yuan in total.

 

Article 3 Use of loan

 

3.1 The loan under this contract shall only be used as purchase of fuel from Fukang Liuyunhu Xinde Kaitong Commerce Co, Ltd.. Without the written consent of Party A, Party B shall not change the purpose of the loan, and the lender shall have the right to supervise the use of the money.

 

Article 4 Term of loan

 

4.1 The term of loan under this contract is 12 months from November 27, 2019 to November 27, 2020.

 

4.2 Party B chooses the following ways to withdraw the loan under this contract:

 

þ Withdraw once for all on November 27, 2019

 

Withdraw in accordance with following schedule:                             

 

4.3 Party B chooses the following ways to repay the principal of the loan under this contract:

 

þ Repay the principal once for all on November 27, 2020.

 

Repay the principal by installments in the following order, time and amount                                        

 

4.4 In the event of a discrepancy between the actual withdrawal date and the last maturity date of the loan and the above agreement, the time recorded in the loan voucher under this contract shall prevail.

 

2

 

 

Article 5 Interest rate

 

5.1 The interest rate of the loan under this contract shall be performed in the manner of (3):

 

(1) The fixed interest rate, the annual interest rate is /%, and the interest rate shall remain unchanged for the whole term of the loan.

 

(2) The interest rate of each loan is determined on the basis of pricing plus floating range, in which the pricing basis is the benchmark loan rate of the same grade announced by the people’s Bank of China on the date of each loan issuance, The floating range is / (up / down) /% or / (plus / minus) / basis point (one basis point is 0.01%), according to which the interest rate determined is based on the debit / loan voucher record. After each loan is issued, the loan interest rate is adjusted in the following ways:

 

(a) No adjustment shall be made during the whole term of the loan.

 

(b) With / (1/3/6/12) months as a period, adjustment for each phase, calculated by sectional interest. The interest rate adjustment date for the second and subsequent periods shall be the corresponding date after the expiration of the first period of the issue date, On that date, the lender shall adjust the loan interest rate according to the benchmark loan interest rate of the same period of the people’s Bank of China and the floating range agreed upon in Article 5.1 (2). If the adjustment month does not have a date corresponding to the release date, the last day of the month is the corresponding date, other periods, and so on.

 

(c) / .

 

(3) the interest rate for each loan is determined on a pricing basis plus a floating range, Among them, the pricing is based on the quoted interest rate (LPR), of þ the one-year or ☒ more than five-year loan announced by the National Interbank lending Centre on the date of each loan issuance. Floating range is / (up / down) /% or add (add / subtract) 435 basis points (one base point is 0.01%), the interest rate determined accordingly shall be subject to the debit / loan voucher record. After each loan is issued, the loan interest rate is adjusted in the following /manner:

 

(a) No adjustment shall be made during the whole term of the loan.

 

(b) With / (1 / 3 / 6 / 12) months as a period, adjustment for each phase, calculated by sectional interest. The interest rate adjustment date for the second and subsequent periods shall be the corresponding date after the expiration of the first period of the issue date, The lender adjusts the loan interest rate according to the floating range stipulated in (LPR) and Article 5.1 (3) of the loan market quotation rate of ☐ one year or ☐ five years and more announced by the National Interbank lending Centre on that date. If there is no date corresponding to the issue date in the month in which the adjustment is made, the last day of the month shall be the corresponding day.

 

(c) /.

 

3

 

 

(4) A floating rate consisting of a spread of / (LIBOR/HIBOR) per month plus / basis point (one basis point is 0.01 per cent). The spread will remain unchanged for the duration of the contract. (LIBOR rate refers to the interbank offer rate published by the British bankers’ association [BBA] and provided by REUTERS and other financial telecommunications terminals issued by the head office of party a on the morning of 2 business days prior to the date of the lending or 2 business days prior to the date of interest rate adjustment, in terms of the above-mentioned term and currency. HIBOR rate refers to the inter-bank offering rate published by the Hong Kong bankers association [HKAB] and provided by REUTERS and other financial telecommunication terminals released by the head office of Party A on the morning of the 2 banking business days before the date of the lending or the 2 banking business days before the date of interest rate adjustment, in the above-mentioned term and currency). The interest rate determined accordingly shall be subject to the debit / loan voucher record. After each loan is issued, the loan interest rate is adjusted in the following ways:

 

(a) No adjustment shall be made during the whole term of the loan.

 

B. Take / (1 / 3, 6) months as a period, one phase and one adjustment. The interest rate adjustment date for the second and subsequent periods shall be the corresponding date after the expiration of the first period of the issue date, The lender adjusts the loan interest rate according to the floating rate composed of the pricing basis plus / basis point (one basis point is 0.01%) according to the / (LIBOR/HIBOR) of that day / month. If the adjustment month does not have a date corresponding to the release date, the last day of the month is the corresponding date, other periods, and so on.

 

(c) / .

 

(5) others: /

 

5.2 Interest payable on a daily basis from the date of spontaneous issuance of loans under this contract shall be settled in one of the following ways:

 

þ The monthly settlement date is 20 days of each month, and the last settlement date is the loan settlement date.

 

The quarterly interest settlement date is the 20 days of the month at the end of each quarter, and the last settlement date is the loan settlement date.

 

The interest settlement date is 20 days of the end of each half year, and the last settlement date is the loan settlement date.

 

The profit shall be paid with the principal, and the interest shall be paid in a lump sum on the date of settlement of the principal.

 

/.

 

5.3 Monthly interest rate and daily interest rate are converted according to the following formula: monthly interest rate = annual interest rate / 12, daily interest rate = annual interest rate / 360.

 

5.4 In the event of a change in the contract loan interest rate, the penalty interest rate under this contract shall be automatically changed accordingly and shall be applicable at the same time as the contract loan interest rate.

 

5.5 Party A shall not be required to obtain the consent of Party B for the adjustments made in accordance with the above provisions.

 

Article 6 Conditions for withdrawal

 

6.1 When Party B applies for withdrawal, the following prerequisites must be met:

 

6.1.1 Party B has completed the administrative license, approval, registration and other legal formalities related to the loans under this contract in accordance with the relevant laws, regulations and rules;

 

6.1.2 Party B has submitted relevant documents that meet the requirements of Party A;

 

6.1.3 All the guarantee formalities agreed upon by the parties under this contract have been completed and the effective / hypothec has been established / the pledge has been established;

 

6.1.4 Party B has not committed any breach of contract agreed upon in this contract;

 

6.1.5 At the time of withdrawal, the statements and guarantees made by Party B in this contract shall remain true, accurate and valid;

 

6.1.6 At the time of withdrawal, the operating and financial conditions of Party B are basically the same as those at the time of signing this contract, and no significant adverse changes have taken place.

 

4

 

 

6.1.7 In the case of a project loan, the project capital or other funds to be raised corresponding to the project loan have been fully in place in accordance with the prescribed time and proportion.

 

6.2 After meeting the prerequisites mentioned in Article 6.1, Party B shall go to the location of Party A in accordance with this contract, withdraw the money and sign the loan voucher with Party A. The loan voucher is an integral part of this contract and has the same effect as this contract.

 

6.3 The loan made by Party A when Party B fails to meet the withdrawal conditions does not constitute a defect in Party A’s performance.

 

6.4 Before the issuance of the loan, if Party A is unable to issue a loan under this contract due to changes in the state macro-control policy, the requirements of Party A’s regulatory department for Party A to control the scale of credit or the direction of credit, and other reasons other than Party A’s failure to issue loans under this contract, Party A has the right to stop issuing the loan or terminate this contract. Party B has no objection to this.

 

Article 7 Methods of repayment

 

7.1 Party B hereby irrevocably authorizes Party A to transfer the loan once (once / sub) to the following account designated by Party B (account name: Shenzhen Yingang Mingzhu Freight Industry Co., Ltd., bank name Guangdong Nanyue Bank Shenzhen Longhua Branch, Account / card number: 910501230900001451).

 

7.2 loans under this contract shall be paid in the following manner:

 

þ Party A is entrusted to pay. According to Party B’s withdrawal application and payment entrustment, Party A shall pay the loan funds through Party B’s account to Party B’s counterparty for the purpose agreed upon in the contract. Party B shall provide the counterparty name, counterparty account, payment amount and other necessary payment information.

 

This contract shall pay all the handling fees required for the transfer to Party B by way of fiduciary payment to Party B, which shall be borne by Party B; Party B shall pay the above expenses to Party A when handling the fiduciary payment of each loan.

 

Party B shall pay for it on its own. Party A shall, according to Party B’s withdrawal application, issue the loan funds to Party B after opening an account with Party A, which shall be paid by Party B to Party B for the purpose agreed upon in this contract. Under any of the following circumstances, Party B may, with the consent of Party A, pay independently:

 

(1) Party B is unable to determine the specific transaction object in advance and the amount does not exceed RMB            yuan;

 

(2) Party B does not have the conditions for the effective use of non-cash settlement;

 

(3) where the loan funds under this contract are used for production and operation and the amount does not exceed RMB            yuan;

 

(4) other circumstances in which Party B may pay the loans under this contract on its own according to laws and regulations:

 

7.3 Party B agrees that even if Party B chooses its own mode of payment, Party B shall still be required to pay by fiduciary payment in the following circumstances. The method of payment shall be carried out in accordance with the method of fiduciary payment agreed upon in this paragraph.

 

7.3.1 The amount of a single payment is equal to or exceeds            RMB (in word);

 

7.3.2 The amount of a single payment is equal to or exceeds            per cent of the total investment amount of the project;

 

7.3.3 The amount of a single payment is equal to or exceeds           % of the loan amount of this contract;

 

7.3.4 Other circumstances determined by Party A:

 

5

 

 

7.4 Change of payment method.

 

If the credit status of Party B decreases and the use of loan funds is abnormal in the process of loan payment, the two parties shall negotiate and change the terms of loan issuance and payment.

 

Article 8 Repayment of loans

 

8.1 Party B undertakes that under no circumstances shall Party B refuse to perform its repayment obligations under this contract for any reason.

 

8.2 The fund account opened by Party B with Party A specifically for the repayment of the loan is (Account number: 910501230900001451, Account name: Shenzhen Yingang Mingzhu Freight Industry Co., Ltd., Bank name: Guangdong Nanyue Bank Shenzhen Longhua Branch).

 

8.3 Party B shall deposit the amount payable (interest, principal) in full into the account opened with Party A as mentioned in Article 8.2 before the end of business hours on the repayment date (interest date, repayment date) (Beijing time). Party A has the right to draw directly from the account. In the event of a statutory holiday, it shall be postponed to the first working day after the end of the statutory holiday.

 

8.4 In the event that Party B has not repaid the amount, Party A shall have the right to deduct directly from any account opened by Party B with any business organization of Guangdong Nanyue Bank, and the outstanding amount in the account shall be deemed to have expired ahead of schedule at the time of deduction, The interest loss arising therefrom shall be borne by Party B. When the currency of the deduction is different from that under this contract, it shall be converted at the exchange rate price announced by Party A on the date of deduction.

 

8.5 The amount paid by Party B (including the amount actively received by Party A in accordance with this contract) shall be paid off in the following order: expenses for the realization of creditor’s rights and security rights, damages, liquidated damages, compound interest, overdue interest and penalty interest, interest, principal, Party A has the right to change the above order according to its own needs.

 

8.6 Party B shall submit a written application to Party A ten working days in advance for prepayment. With the written consent of Party A, Party B may handle the payment in the following ways:

 

þ Party A shall charge interest according to the loan interest rate and the number of days actually used as stipulated in this contract;

 

Except for the interest charged according to the loan interest rate and the number of days actually used as stipulated in this contract, Party A shall have the right to collect compensation at the rate of           % of the prepayment amount. However, the maximum amount of compensation shall not exceed the amount of prepayment × the loan interest rate / 360 × days in advance as agreed in this contract.

 

8.7 If the actual loan term is shortened as a result of Party B’s prepayment or Party A’s early recovery of the loan in accordance with this contract, the corresponding interest rate shall not be adjusted and the original loan interest rate shall still be implemented.

 

6

 

 

Article 9 Loan guarantee

 

9.1 The loan under this contract shall be guaranteed by one or more of the following

 

The guarantee contract no.           signed by Party A and guarantor           

 

The mortgage contract no.           signed by Party A and mortgagor           

 

The pledge contract no.           signed by Party A and pledgor           

 

9.2 If the claim under this contract is a claim under the maximum guarantee, one or more of the following guarantees may be taken:

 

þ Maximum guarantee contract 2019 Nanyue Shenzhen Maximum Baozi No. 00702-1 and 2019 Nanyue Shenzhen Maximum Baozi No. 00702-2 signed by guarantor: Jinlong Yang and Shenzhen Yangang Mingzhu Logistics Co., Ltd., and Party A;

 

þ Maximum mortgage contract 2019 Nanyue Shenzhen Maximum Dizi No. 00702-3 and 2019 Nanyue Shenzhen Maximum Dizi No. 00702-4 signed by mortgagor: Jinlong Yang, Hongxin Sun and Guizhi Yang, and Party A.

 

9.3 In the event of any change in the guarantee under this contract which is not favorable to the creditor’s rights of Party A, Party B shall promptly provide a separate legal and effective guarantee approved by Party A at the request of Party A.

 

9.4 The guarantor shall be responsible for withdrawals under the loan contract as agreed in the guarantee contract.

 

Article 10 Rights and obligations of Party B.

 

10.1 Party B guarantees that Party B shall have the right to dispose of the property under its management, to carry on the business related to the use of the loan under this contract, and to sign and perform this contract as a legal unit registered in accordance with the law and effectively surviving.

 

10.2 Party B warrants that the signing of this contract has been approved by the competent department at a higher level or by the shareholders (large) meeting, board of directors and other competent bodies of the company in accordance with the law, and has obtained all necessary authorization.

 

10.3 Party B warrants that it shall sign and perform this contract without violating any provisions or agreements that are binding on Party B and its assets, Party B shall not violate any guarantee agreements, other agreements and any other documents, agreements and undertakings that are binding on Party B.

 

10.4 Party B guarantees to provide the necessary documents and materials as required by Party A, and to ensure that the documents and materials provided are true, accurate, complete, legal and valid.

 

10.5 Party B has the right to withdraw and use the loan in accordance with this contract.

 

10.6 Party B shall use the loan in accordance with the purpose and mode of payment stipulated in this contract. The borrowed funds shall not be invested in the securities market, futures market or other uses prohibited or restricted by relevant laws and regulations in any form.

 

10.7 Party B shall, in accordance with the requirements of Party A, cooperate with the pre-loan investigation, the loan examination and the post-loan inspection, and provide it in a timely manner. Including, but not limited to:

 

10.7.1 Business license and annual inspection certificate, legal person code certificate, identity certificate of legal representative and necessary personal information, list of members of the board of directors, principal responsible persons and persons in charge of finance, business license, the tax registration certificate of the annual inspection of the tax department, the photocopy of the tax payment certificate of the tax department that meets the requirements of Party A, and the loan card;.

 

10.7.2 Status of deposits, loans and bank account;

 

7

 

 

10.7.3 The audited balance sheet, income statement, statement of changes in owner’s equity and sales volume, statement of cash flows, financial statements and notes and notes, as well as prior to the repayment of the loans under this contract, which meet the requirements of Party A. The financial indicators of the enterprise shall be kept within the standards stipulated in this contract:

 

10.7.4 Production and business plans, statistical statements, project budget and final accounts, project progress, transaction contract information;

 

10.7.5 All external guarantees (including any agencies of Party A);

 

10.7.6 Information on all affiliated enterprises and related relationships, related party transactions that have occurred or are about to take place, accounting for more than 10% of their net assets, as well as mutual guarantees within group customers;

 

10.7.7 The occurrence of litigation, arbitration, administrative penalties, debt disputes with others and criminal prosecution of individual shareholders or senior management personnel;

 

10.7.8 If Party B pays independently, Party B shall actively cooperate with Party A in the inspection and supervision of the use of the loan funds, and shall collect and report the use of the loan funds to Party A on a regular basis in accordance with the requirements of Party A.

 

10.8 Party B shall repay the principal and interest of the loan in accordance with this contract.

 

10.9 Party B shall notify Party A in writing 30 days prior to any change in its business mode, system and legal status, including but not limited to contracting, leasing, escrow, asset restructuring, debt restructuring, equity restructuring, joint venture, merger (merger), division, joint venture (cooperation), reduction of registered capital, application for suspension of business, application for dissolution (or cancellation), application for reorganization, reconciliation and bankruptcy, and shall implement the liability for paying off the debts hereunder with written consent of Party A, or provide a new guarantee approved by Party A in writing; otherwise, such activities shall not be carried out before paying off all debts hereunder.

 

10.10 Party B shall notify Party A in writing within three days after the occurrence of its own system and legal status, including but not limited to being declared closed for rectification, being declared closed, being declared dissolved (cancelled), being applied for reorganization, bankruptcy, being involved in major economic disputes, the debt of any financial institution is due and not paid off, or any other situation that is sufficient to endanger its normal operation and loss of guarantee ability, and shall take full and effective measures to preserve party a’s creditor’s rights.

 

10.11 Within three days after the occurrence of any other circumstances sufficient to endanger the normal operation of Party A or the safety of Party A’s creditor’s rights, Party A shall be notified in writing to Party A and at the same time take sufficient and effective measures to preserve Party A’s claims.

 

10.12 If Party B changes its domicile, business scope, articles of association, name, legal representative or other middle and senior management, Party B shall notify Party A in writing within 7 days after the change.

 

10.13 If the mortgage is secured under this contract, Party B warrants to notify Party A at the first time after learning the information about the impending demolition of the mortgaged property.

 

10.13.1 If the demolition takes the form of compensation for the exchange of property rights, Party B or the mortgagor shall, in accordance with the requirements of Party A, deal with the following:

 

þ To settle the claims under this contract immediately;

 

Party B shall provide other guarantees that meet the requirements of Party A.

 

The mortgagor shall use the exchanged property as the guaranty of this contract and re-sign the mortgage contract and go through the mortgage registration; however, before the new mortgage registration is completed, Party B shall provide other guarantees as requested by Party A.

 

8

 

 

10.13.2 if compensation is adopted for demolition and relocation, Party A shall have the right to request Party B or mortgagor to adopt one or more of the following ways:

 

þ To settle the claims under this contract immediately;

 

þ The compensation shall be deposited into a fixed-term account opened by Party A with the pledge of the certificate of deposit as the guarantee under this contract;

 

þ Party A shall open a margin account and sign a pledge contract to deposit the compensation into the margin account as a guarantee under this contract.

 

þ Party B shall provide other guarantees that meet the requirements of Party A.

 

10.14 Before paying off the principal and interest of Party A’s loan, Party B shall not sell specific assets, pay off other debts in advance, or provide debt guarantee for third parties without the consent of Party A.

 

10.15 Party B shall not at any time sign a contract with any third party which is detrimental to the rights and interests of Party A under this contract.

 

10.16 In the event of a guarantee, when the guarantor violates any of the obligations or commitments agreed upon in the guarantee contract, or loses the ability to guarantee, Party B shall immediately provide a new guarantee approved by Party A or repay the loan under this contract in advance.

 

10.17 Party B shall open a basic / general deposit account with Party A, which shall be used exclusively to collect the recovered funds for production and operation, and shall consciously accept the supervision of Party A.

 

10.18 Party B undertakes that until the principal and interest of Party A’s loan is repaid, the financial indicators shall maintain the following standards: / .

 

10.19 Party B agrees that Party A shall inquire about the credit status of Party B from the credit information database established by the people’s Bank of China, and agrees that Party A shall provide Party B with the credit information database established by the People’s Bank of China. Party B also agrees that Party A may reasonably use and disclose Party B information for business needs.

 

Article 11 Rights and obligations of Party A.

 

11.1 Party B shall have the right to request Party B to provide information relating to the loans under this contract.

 

11.2 Have the right to supervise and inspect the use of loans under this contract, and to understand Party B’s business activities, financial situation, provision of guarantees and debt disputes.

 

11.3 On the premise that Party B has fully fulfilled its obligations under this contract and met the conditions for withdrawal, Party A shall issue a loan to Party B in full and on schedule.

 

11.4 Party A shall keep confidential the information and information provided by Party B concerning its debts, finance, production and operation, except as otherwise provided by laws and regulations.

 

11.5 During the period of validity of this contract, Party A shall issue a notice of change of address in time when Party A changes its domicile.

 

11.6 Party B shall have the right to supervise the withdrawal account of Party B’s funds, including, but not limited to, the understanding and supervision of the capital income and expenditure of the account, and Party B shall cooperate. If requested by Party A, Party B shall sign a special account supervision agreement with Party A.

 

9

 

 

Article 12 Liability for breach of contract.

 

12.1 After the entry into force of this contract, both Party A and Party B shall perform their obligations under this contract. If either party fails to perform or fails to fully perform this contract, it shall constitute a breach of this contract and shall bear the corresponding liability for breach of contract.

 

12.2 Due to the event caused by Party B or the guarantor under this contract, Party B has not completed the corresponding guarantee formalities of this contract in accordance with the contract, or Party B has failed to go through the formalities of withdrawal from Party A at the time stipulated in this contract. If the loan issuance time stipulated in this contract exceeds 30 days (including legal holidays and rest days), Party A shall have the right to terminate this contract, the outstanding loans shall no longer be issued, and the loans issued shall have the right to request Party B to repay them immediately.

 

12.3 If Party B fails to repay the principal amount of the loan due (including early maturity) in accordance with the repayment period stipulated in this contract, Party B shall, from the date of overdue, charge 50% as the penalty interest rate at the interest rate stipulated in this contract, and calculate and collect the overdue interest; If Party B fails to pay the interest within the term of the loan, the compound interest shall be calculated according to the loan interest rate stipulated in this contract; if the interest is not paid after the expiration of the loan, the compound interest shall be calculated according to the penalty interest rate stipulated in this paragraph.

 

12.4 If Party B fails to use the loan for the purpose stipulated in this contract, its principal and interest shall, from the date of breach of contract, be charged 100% as the penalty interest rate at the interest rate agreed upon in this contract, and the penalty interest and compound interest shall be calculated.

 

12.5 If the loan under this contract is overdue or not used for the purpose stipulated in the contract, overdue interest, penalty interest and compound interest shall be charged on a monthly basis.

 

12.6 Where Party A adopts litigation, arbitration or other means to realize its creditor’s rights as a result of Party B’s breach of contract, Party B shall bear the litigation costs, arbitration fees, security fees, notice fees, evaluation fees, appraisal fees, auction fees, travel expenses, lawyers’ fees and any other expenses incurred by Party A for the realization of the creditor’s rights.

 

12.7 In the event of any of the following breach of contract, Party A has the right to request Party B to correct the breach of contract, declare that all loans issued are due immediately, recover the principal and interest of the loans issued in advance, and stop issuing loans, compensate Party A for the losses caused by the breach of contract and to take corresponding measures to safeguard its legitimate rights and interests in accordance with the law:

 

12.7.1 Party B fails to use the loan or fail to pay the principal, interest and other accounts payable in full in accordance with the purpose and mode of payment stipulated in this contract;

 

12.7.2 Party B provides Party A with false or concealed loan application documents, balance sheet, income statement and other loan information, or conceals important business financial facts;

 

12.7.3 refusing to accept Party A’s supervision and inspection of its use of loans and related production, business and financial activities;

 

12.7.4 Party B uses the loan to engage in equity investment;

 

12.7.5 Party B uses the loan to engage in speculative business or other illegal or illegal transactions in securities, futures, real estate, etc.;

 

12.7.6 Party B collects loans by borrowing or other means in order to obtain illegal income;

 

12.7.7 Party B defrauds the loan by other fraudulent means;

 

12.7.8 Party B makes use of the false contract with a third party to pledge to Party A with claims such as notes receivable and fictitious accounts receivable with no actual trade background to obtain bank funds;

 

12.7.9 Transferring assets at low prices or free of charge to evade bank claims;

 

10

 

 

12.7.10 Party B violates any contract or agreement signed by Party B as a party with others (including Party A of this contract), or violates any undertaking or guarantee given by Party B;

 

12.7.11 Party B shall have a deterioration of its financial position and break through the financial targets stipulated in Article 10.18 of this contract; Party A or other creditors shall be overdue; and Party B shall be involved in or about to be involved in major disputes;

 

Or other material adverse changes that have or may affect its ability to perform its obligations under this contract.

 

If Party B changes its mode of operation, its own system or legal status, including, but not limited to, contracting, leasing, trusteeship, asset restructuring, debt restructuring, shareholding transformation, joint ventures, mergers (mergers), acquisitions, divisions, paid transfer of property rights, joint ventures (joint ventures), reduction of registered capital or application for closure and rectification, application for dissolution (or revocation), application for reorganization, settlement and bankruptcy, etc., failing to obtain the written consent of Party A and carry out the liability to pay off the debts under this contract or to provide a new guarantee approved by Party A.

 

12.7.12 The guarantee under this contract has undergone changes that are not conducive to the claims of Party A, including, but not limited to, the mortgage, the destruction, loss, reduction of value or seizure, seizure, freezing, etc., of the mortgaged property, the pledged property, the loss of the mortgage, the loss of the value of the pledged property, etc., where the guarantor violates any of the obligations established for it in the guarantee contract and Party B fails to provide the required new guarantee at the request of Party A, or where the guarantor is involved in or is about to be involved in a major action sufficient to affect the creditor’s rights of Party A;

 

12.7.13 The contract of guarantee or other means of guarantee is not effective, invalid, declared to be revoked, or the real right of the security has not been established or cancelled or eliminated in accordance with the law, or the guarantor appears to be partially or wholly incapacitated or expressly fails to perform the guarantee obligation, or if the guarantor violates any of the obligations or commitments agreed in the guarantee contract or violates its contract with a third party, and Party B fails to provide the required new guarantee at the request of Party A.

 

12.7.14 The statements and warranties made by Party B are untrue, inaccurate or materially concealed;

 

12.7.15 Party B expressly or through its own actions indicates its failure to perform its obligations under this contract;

 

12.7.16 Where the shareholder or actual controller of Party B is involved in or is about to be involved in a major dispute, which may affect the realization of Party A’s creditor’s rights;

 

12.7.17 If Party B violates any other obligations and commitments agreed upon in this contract, Party A considers that it is sufficient to affect the realization of its creditor’s rights;

 

12.7.18 Any events that breach contract under any other credit contract signed between Party B and Party.

 

Article 13 Entry into force of a contract.

 

13.1 This contract shall enter into force as of the date of signature of both parties.

 

Article 14 Assignment, alteration and termination of contracts.

 

14.1 After the entry into force of this contract, Party A may assign all or part of the claims under this contract to a third party without the consent of Party B.

 

11

 

 

14.2 After the entry into force of this contract, if Party B transfers all or part of the liabilities under this contract to a third party, Party B shall submit to Party A in advance a written document in which the guarantor agrees to continue to undertake the guarantee obligations or separately provide a new guarantee approved by Party A subject to the written consent of Party A.

 

14.3 After the entry into force of this contract, neither Party A nor Party B shall alter it without authorization. If changes are required, Party A and Party B shall reach a written change agreement.

 

14.4 If Party B applies for the extension of the loan under this contract, after the examination and approval of Party A, the two parties shall sign an extension agreement. If Party A does not agree to the extension, Party B shall still perform its repayment obligations in accordance with this contract.

 

14.5 During the performance of this contract, Party A shall have the right to terminate the contract, recover the principal and interest of the loan issued in advance, and stop issuing the loan under any of the following circumstances:

 

14.5.1 Where the business and financial situation of Party B deteriorates, Party B is unable to pay off its due debts, or involves major economic proceedings or arbitration and other legal disputes, thus seriously affecting and threatening the realization of Party A’s creditor’s rights;

 

14.5.2 Where there is a serious crisis in the overall credit status, operating condition and financial situation of the customers of the group to which Party B belongs, which poses a major threat to the loan safety of Party A;

 

14.5.3 Where Party B goes out of business, dissolves, closes its business, revokes its business license and cancels its business license, etc.;

 

14.5.4 Other circumstances that may result in threats or serious losses to the realization of Party A’s claims under this contract.

 

Article 15 Settlement of disputes.

 

15.1 All disputes between Party A and Party B arising from this contract shall be settled through consultation. If the negotiation fails, the parties shall choose to resolve them in the following ways:

 

þ To bring a suit in the people’s court of the place where Party A resides;

 

To bring a suit in a people’s court;

 

Apply to the International Court of Arbitration for arbitration.

 

Article 16 Supplementary provisions.

 

16.1 when the legal name, legal representative and domicile of Party B change during the period of validity of this contract and Party A is not notified in writing, all documents sent by Party A to Party B in accordance with the information contained in this contract (the sending address shall be subject to the confirmation of the address of service signed by both parties, see Annex for details) shall be deemed to be served.

 

16.2 Party B shall bear all related expenses such as registration, insurance, notarization, appraisal, evaluation and transportation under this contract and its guarantee contract. If it is paid on behalf of Party A, Party A shall have the right to deduct it directly from Party B’s account.

 

16.3 other matters agreed upon by both parties.

 

16.3.1 if, prior to the signing of this Agreement, Party A and Party B have signed the Maximum Financing Contract 2019 Nanyue Shenzhen Rongzi No. 00702. This Agreement shall be the specific business contract under the Maximum Financing Contract.

 

16.3.2 Party B confirms that Party A has the right to participate in other large financing, asset sale, merger, division, shareholding transformation, bankruptcy liquidation and other activities of Party B to the extent permitted by laws, regulations and regulatory requirements, so as to safeguard its creditor’s rights.

 

12

 

 

16.3.3 Party A shall give Party B any tolerance or preference or delay in the exercise of any rights under this contract without affecting, harming or restricting all rights and interests enjoyed by Party A in accordance with this contract and laws and regulations, nor shall it be regarded as a waiver of Party A’s rights under this contract. / .

 

16.4 when the option is adopted under this contract, a tick shall be marked to indicate the application of the clause. X indicates that the clause does not apply.

 

16.5 this Agreement shall be in triplicate, Party A in two copies and Party B in one copy, all of which shall have the same legal effect.

 

16.6 the relevant annexes under this contract are an integral part of this contract and have the same legal effect as this contract.

 

16.7 Party A has taken a reasonable way to draw the attention of Party B to the provisions of this contract that waive or limit Party A’s liability, and fully explain the relevant terms and conditions as required by Party B. Party A and Party B have no objection to the understanding of all the terms and conditions of this contract.

 

Party A: Guangdong Nanyue Bank Co., LTD. Shenzhen Branch [company seal affixed here]

 

Legal representative/person in charge (or authorised agent): /s/Junhong Zhao

November 27, 2019

 

Party B: Shenzhen Yangang Mingzhu Freight Industry Co., Ltd. [company seal affixed here]

 

Legal representative/person in charge (or authorised agent): Jinlong Yang [personal seal affixed here]

November 27, 2019

 

13

 

 

Appendix: Confirmation of address for service.

 

Party A: Guangdong Nanyue Bank Co., Ltd. Shenzhen Branch.

Address: Block B, Phase II, Tianli Central Business Square, Haide, Nanshan District, Shenzhen City.

Person in charge: Junhong Zhao

 

Party B: Shenzhen Yangang Mingzhu Freight Industry Co., Ltd.

Legal Representative / responsible person: Jinlong Yang

ID card number: 440301197608020314.

Address: District A, 27th floor, Yantian Modern Industrial Service Center, 3018 Sha Yan Road, Yantian District, Shenzhen City.

Tel. No.: 0755-2520 9619.

 

By negotiation between Party A and Party B (if there are more than one party, in turn), the confirmation of the service address of the “loan contract” (hereinafter referred to as the “original contract”) signed between Party A and Party B, 2019 Nanyue Shenzhen Jiezi No. ht2019111500000032 (hereinafter referred to as the “original contract”), is agreed in this supplementary agreement as follows: The agreement and other documents as well as the address for service and legal consequences of the relevant documents and legal documents in the event of a dispute over the contract shall be as follows:

 

1. Party A confirms that its valid address for service is (including, but not limited to, telex, telephone, fax, email, etc.) Block B, Phase II, Tianli Central Business Plaza, Haide San Road, Nanshan District, Shenzhen City.

 

2. Party B confirms that its valid address for service is (including, but not limited to, telex, telephone, fax, email, etc.) Area A, 27th floor, Yantian Modern Industrial Service Center, 3018 Shayan Road, Yantian District, Shenzhen City.

 

3. The applicable scope of the address for service between the parties includes the service of various notices, agreements and other documents when the parties are not suing, as well as the service of relevant documents and legal documents in the event of a dispute over the contract, and at the same time includes the entry of the dispute into the first instance, the second instance, the retrial and the execution procedure after the civil procedure.

 

4. Any notice, request, debt collection letter or other communication given to Party B by Party A under this contract, of which telex, telephone, fax, email, etc., shall be deemed to have been served on Party B;

 

The postal letter shall be deemed to have been served on Party B on the third day from the date of posting;

 

If a person is sent for special service, Party B shall be deemed to have served on the date of signature and receipt, and if Party B refuses to accept it, the sender may record the process of service by means of photo and video recording, and retain the document, which shall also be regarded as service.

 

5. When Party A’s service address needs to be changed, Party A shall fulfill its notification obligation and notify Party B by mail;

 

When Party B’s service address needs to be changed, Party B shall fulfill its notification obligation and notify Party A by mail.

 

When the address of the parties changes in arbitration and civil proceedings, the party shall perform the obligation to serve the notice of change of address to the arbitration institution and the court of law.

 

14

 

 

If Party A or Party B fails to perform its notification obligations in accordance with the above-mentioned manner, the delivery address confirmed by both parties shall still be regarded as a valid address for service,

 

Due to the inaccuracy of the place of delivery provided or confirmed by the party, and the failure to inform the other party and the court, the party or the designated recipient of the refusal to sign in accordance with the procedure after the change of the address of service, if the legal document fails to be actually received by the party concerned, if it is served by post, the date of return of the document shall be deemed to be the date of service; In the case of direct service, the date on which the sender notes the circumstances on the return certificate of service on the spot shall be the date of service; if the obligation to know the change of service address is fulfilled, the changed address of service shall be taken as the valid address for service.

 

As for the address of service clearly agreed upon by the parties in the contract, the court or arbitration institution may directly send the service. Even if the parties fail to receive the document of service by mail from the court or arbitration institution, it shall be deemed as service due to the agreement in the contract.

 

6. After the dispute enters into arbitration or civil proceedings, if the parties take the action and directly submit the confirmation of service address to the arbitration institution or court, if the confirmed address is inconsistent with the confirmed address of service before litigation, the service address submitted to the arbitration institution or court for confirmation shall prevail (the service address shall be subject to the service method and legal consequences of service as stipulated in Article 3, Article 4 and Article 5 above).

 

7. Party B has carefully read the notice of this confirmation of the address of service, knows its contents, and agrees to use the confirmed address of service as the address for the receipt of all kinds of litigation documents.

 

8. This Supplementary Agreement is an integral part of the original contract. Where this supplementary agreement is inconsistent with the original contract, this supplementary agreement shall prevail, and the remaining provisions shall still be implemented in accordance with the original contract.

 

9. This supplementary agreement shall enter into force as of the date of signature of Party A and Party B and shall be valid for the same period as the original contract.

 

10. This supplementary agreement is in triplicate, Party A holds two copies and Party B holds one copy.

 

Party A: Guangdong Nanyue Bank Co., LTD. Shenzhen Branch [company seal affixed here]

Legal representative/person in charge (or authorised agent): /s/Junhong Zhao

Date: November 27, 2019

 

Party B: Shenzhen Yangang Mingzhu Freight Industry Co., Ltd. [company seal affixed here]

Legal representative/person in charge (or authorised agent): Jinlong Yang [personal seal affixed here]

Date: November 27, 2019

 

 

15

 

 

Exhibit 23.1

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

  

We consent to the inclusion in this Registration Statement of MingZhu Logistics Holdings Limited on Form F-1 of our report dated August 2, 2019, except for Notes 14 and 15 which are dated September 27, 2019, with respect to our audits of consolidated financial statements of MingZhu Logistics Holdings Limited and Subsidiaries as of and for the years then ended December 31, 2018 and 2017. We also consent to the reference to our Firm under the heading “Experts” in the prospectus.

  

/s/ Friedman LLP

 

New York, New York

December 18, 2019