Texxon Holding Ltd F-1/A, filed Aug 15, 2025
Texxon Holding Ltd (NPT)
As filed with the Securities and Exchange Commission on August 14, 2025.
Registration No. 333-281530
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
AMENDMENT NO. 5
to
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________
Texxon Holding Limited
(Exact name of Registrant as specified in its charter)
Not Applicable
(Translation of Registrant’s name into English)
____________________________
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Cayman Islands |
2821 |
Not Applicable |
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(State or other jurisdiction of |
(Primary Standard Industrial |
(I.R.S. Employer |
703, Block A, 1799 Wuzhong Road, Minhang District Shanghai, China, 200335
Tel: +86 574-62629970
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive office)
____________________________
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 of all communications, including communications
sent to agent for service, should be sent to:
|
Wei Wang, Esq. |
Sanny Choi, Esq. 418 Broadway #4607 Albany, NY 1220 7 Tel: (646) 386-8128 |
____________________________
Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
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.
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.
EXPLANATORY NOTE
This Amendment No. 5 to the Registration Statement on Form F-1 (File No. 333-281530) is being filed solely to file certain exhibits thereto.
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 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 fraud or the consequences of committing a crime. Our amended and restated memorandum and articles of association, which will become effective upon or before completion of this offering, provide that, to the extent permitted by law, we shall indemnify each existing or former secretary, director (including alternate director), and any of our other officers and their personal representatives against:
(a) all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by the existing or former director (including alternate director), secretary or officer in or about the conduct of our business or affairs or in the execution or discharge of the existing or former director (including alternate director), secretary’s or officer’s duties, powers, authorities or discretions; and
(b) without limitation to paragraph (a) above, all costs, expenses, losses or liabilities incurred by the existing or former director (including alternate director), secretary or officer in defending (whether successfully or otherwise) any civil, criminal, administrative or investigative proceedings (whether threatened, pending or completed) concerning us or our affairs in any court or tribunal, whether in the Cayman Islands or elsewhere.
No such existing or former director (including alternate director), secretary or officer, however, shall be indemnified in respect of any matter arising out of his own dishonesty, willful default or fraud.
To the extent permitted by law, we may make a payment, or agree to make a payment, whether by way of advance, loan or otherwise, for any legal costs incurred by an existing or former director (including alternate director), secretary or any of our officers in respect of any matter identified in above on condition that the director (including alternate director), secretary or officer must repay the amount paid by us to the extent that it is ultimately found not liable to indemnify the director (including alternate director), the secretary or that officer for those legal costs.
Pursuant to our offer letters to directors and employment agreements with executive officers, we agree to indemnify our directors and executive officers against certain liabilities and expenses incurred by such persons in connection with claims made by reason of their being such a director or executive officer.
The form of underwriting agreement 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.
During the past three years, we have issued the following ordinary shares. We believe that each of the following issuances was exempt from registration under the Securities Act pursuant to Section 4(a)(2) of the Securities Act regarding transactions not involving a public offering, or in reliance on Regulation S under the Securities Act regarding sales by an issuer in offshore transactions. No underwriters were involved in these issuances of ordinary shares.
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On our incorporation, our authorized share capital is $50,000 divided into 500,000,000 ordinary shares with par value of $0.0001 each. On February 1, 2024, we issued 20,000,000 ordinary shares to the following purchasers as consideration for the transfer of their respective equity interest in Net Plastic technology to the Company in connection with our restructuring for this offering.
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Purchaser |
Number of |
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EXCP XH Holding Limited |
818,780 |
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EXCP QQG Holding Limited |
5,963,545 |
|
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EXCP WW Holding Limited |
5,837,887 |
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EXCP XCH Holding Limited |
3,370,547 |
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EXCP HJ Holding Limited |
2,686,197 |
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EXCP LQ Holding Limited |
391,055 |
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ToSupply LYJ Holding Limited |
513,457 |
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ToSupply JYZ Holding Limited |
252,414 |
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ToSupply ZQ Holding Limited |
38,833 |
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ToSupply LF Holding Limited |
34,518 |
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ToSupply SLM Holding Limited |
30,203 |
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ToSupply LJ Holding Limited |
30,203 |
|
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ToSupply XHD Holding Limited |
23,731 |
|
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ToSupply WW Holding Limited |
8,630 |
ITEM 8. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
a) Exhibits
See Exhibit Index beginning on page II-6 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.
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 our consolidated financial statements or the notes thereto.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.
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 provisions described in Item 6, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. 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
II-2
registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) For the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(4) For the purpose of determining any liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Shanghai, China, on August 14, 2025.
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Texxon Holding Limited |
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By: |
/s/ Hui Xu |
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Name: |
Hui Xu |
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Title: |
Chief Executive Officer |
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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.
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Signature |
Title |
Date |
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/s/ Hui Xu |
Chief Executive Officer and Director |
August 14, 2025 |
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Hui Xu |
(Principal executive officer) |
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/s/ Bo Ren |
Chief Financial Officer and Director |
August 14, 2025 |
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Bo Ren |
(Principal financial and accounting officer) |
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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 Texxon Holding Limited, has signed this registration statement or amendment thereto in Newark, Delaware on August 14, 2025.
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Puglisi & Associates |
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By: |
/s/ Donald J. Puglisi |
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Name: |
Donald J. Puglisi |
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Title: |
Managing Director |
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TEXXON HOLDING LIMITED
EXHIBIT INDEX
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Exhibit |
Description of Document |
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1.1* |
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3.1* |
Memorandum and Articles of Association of the Registrant, as currently in effect |
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3.2* |
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4.1* |
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5.1** |
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8.1** |
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8.2* |
Opinion of Ellenoff Grossman & Schole LLP regarding certain U.S. tax matters |
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10.1* |
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10.2* |
English Translation of Form of Logistics and Transportation Agreement |
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10.3* |
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10.4* |
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10.5* |
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10.6* |
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10.7* |
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10.8* |
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10.9* |
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10.10* |
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10.11#* |
Employment Agreement, dated March 21, 2024, by and between the Registrant and Hui Xu |
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10.12#* |
Employment Agreement, dated March 21, 2024, by and between the Registrant and Bo Ren |
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10.13#* |
Employment Agreement, dated March 21, 2024, by and between the Registrant and Jian Huang |
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10.14#* |
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10.15#+* |
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10.16* |
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10.17#+* |
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10.18#+* |
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10.19* |
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21.1* |
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23.1** |
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23.2** |
Consent of Mourant Ozannes (Cayman) LLP (included in Exhibit 5.1) |
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23.3* |
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23.4* |
Consent of Ellenoff Grossman & Schole LLP (included in Exhibit 8.2) |
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23.5** |
Consent of Benson Li & Co. Solicitors (included in Exhibit 99.3) |
II-6
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Exhibit |
Description of Document |
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24.1* |
Powers of Attorney (included on signature page to Registration Statement on Form F-1) |
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99.1* |
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99.2* |
Opinion of Jingtian & Gongcheng regarding certain PRC law matters |
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99.3** |
Opinion of Benson Li & Co. Solicitors regarding certain Hong Kong law matters |
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99.4* |
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99.5* |
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99.6* |
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99.7* |
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99.8* |
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99.9* |
Form of Nominating and Corporate Governance Committee Charter |
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99.10* |
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99.11* |
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107* |
____________
* Previously filed.
** Filed herewith.
# Indicates a management contract or any compensatory plan, contract or arrangement.
+ Portions of the exhibit have been omitted pursuant to Item 601(a)(6) of Regulation S-K. The Company hereby agrees to furnish a copy of any omitted portion to the SEC upon request.
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Exhibit 5.1
Texxon Holding Limited
c/o Osiris International Cayman Limited
Suite #4-210, Governors Square
23 Lime Tree Bay Avenue
PO Box 32311
Grand Cayman KY1-1209
Cayman Islands
13 August 2025
Dear Addressee
Texxon Holding Limited (the Company)
We have acted as Cayman Islands legal advisers to the Company in connection with the Company's registration statement on Form F-1, including all amendments or supplements thereto, filed with the U.S. Securities and Exchange Commission (the Commission) under the U.S. Securities Act of 1933, as amended, relating to the offering of 2,000,000 ordinary shares (or 2,300,000 ordinary shares if the underwriters exercise their over-allotment option in full) in the Company of par value US$0.0001 each (the Shares) (the Registration Statement, which term does not include any other document or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto) relating to the offering of the Shares.
| 1. | Documents Reviewed |
For the purposes of this opinion letter, we have examined a copy of each of the following documents:
| (a) | the certificate of incorporation of the Company dated 19 January 2022; |
| (b) | the memorandum and articles of association of the Company (the M&A) that were registered/adopted on 19 January 2022; |
| (c) | a copy of the Company’s register of member (the Register of Members) that was provided to us by the Company; |
| (d) | a copy of the Company’s register of directors and officers that was provided to us by the Company, and the certificate from a director of the Company dated 15 July 2025 (together with the M&A and the Register of Members, the Company Records); |
| (e) | written resolutions of the board of directors of the Company passed on 15 July 2025 approving (among other things) the allotment of the Shares (the Resolutions); |
| (f) | a certificate of good standing dated 15 July 2025, issued by the Registrar of Companies (the Registrar) in the Cayman Islands (the Certificate of Good Standing); and |
| (g) | the Registration Statement. |
| 2. | Assumptions |
The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter. In giving these opinions we have relied upon the following assumptions, which we have not independently verified:
| 2.1 | copies of documents or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals; |
| 2.2 | where a document has been examined by us in draft form, it will be or has been executed and/or filed in the form of the draft, and where a number of drafts of a document have been examined by us all changes thereto have been marked or otherwise drawn to our attention; |
| 2.3 | the accuracy and completeness of all factual representations made in the documents reviewed by us; |
| 2.4 | the genuineness of all signatures and seals; |
| 2.5 | the Resolutions were duly passed, are in full force and effect and have not been amended, revoked or superseded; |
| 2.6 | there is nothing under any law (other than the laws of the Cayman Islands) which would or might affect the opinions set out below; |
| 2.7 | the directors of the Company have not exceeded any applicable allotment authority conferred on the directors by the shareholders; |
| 2.8 | upon issue of the Shares, the Company will receive in full the consideration for which the Company agreed to issue the Shares, which shall be equal to at least the par value thereof; |
| 2.9 | the validity and binding effect under the laws of the United States of America of the Registration Statement and that the Registration Statement has been duly filed with the Commission; |
| 2.10 | each director of the Company (and any alternate director) has disclosed to each other director any interest of that director (or alternate director) in the transactions contemplated by the Registration Statement in accordance with the M&A; and |
| 2.11 | the Company Records were, when reviewed by us, and remain at the date of this opinion accurate and complete. |
| 3. | Opinion |
Based upon the foregoing and subject to the qualifications set out below and having regard to such legal considerations as we deem relevant, we are of the opinion that:
| 3.1 | The Company is incorporated under the Companies Act (as amended) of the Cayman Islands (the Companies Act), validly exists under the laws of the Cayman Islands as an exempted company and is in good standing with the Registrar. The Company is deemed to be in good standing on the date of issue of the Certificate of Good Standing if it: |
| (a) | has paid all fees and penalties under the Companies Act; and |
| (b) | is not, to the Registrar’s knowledge, in default under the Companies Act. |
2
| 3.2 | The Certificate of Good Standing is evidence that the Company is in good standing on the date thereof. Under Cayman Islands law, good standing means that the Company has paid all fees and penalties under the Companies Act and is not, to the Registrar’s knowledge, in default under the Companies Act. |
| 3.3 | Based solely on our review of the M&A, the authorised share capital of the Company is US$50,000 divided into 500,000,000 ordinary shares of a par value of US$0.0001 each. |
| 3.4 | The issue and allotment of the Shares has been duly authorised and when allotted, issued and paid for as contemplated in the Registration Statement, the Shares will be legally issued and allotted, fully paid and non-assessable. As a matter of Cayman Islands law, a share is only issued when it has been entered in the register of members (shareholders). |
| 3.5 | The statements under the caption “Cayman Islands Taxation” in the Registration Statement, to the extent that they constitute statements of Cayman Islands law, are accurate in all material respects and that such statements constitute our opinion. |
| 4. | Qualifications |
Except as specifically stated herein, we make no comment with respect to any representations and warranties which may be made by or with respect to the Company in any of the documents or instruments cited in this opinion or otherwise with respect to the commercial terms of the transactions the subject of this opinion.
In this opinion the phrase non-assessable means, with respect to Shares in the Company, that a member shall not, solely by virtue of its status as a member, be liable for additional assessments or calls on the Shares by the Company or its creditors (except in exceptional circumstances and subject to the M&A, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil).
| 5. | Consent |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our name under the headings “Taxation”, “Legal Matters” and “Enforceability of Civil Liabilities” in the Registration Statement. In giving such consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended, or the Rules and Regulations of the Commission promulgated thereunder.
Yours faithfully
/s/ Mourant Ozannes (Cayman) LLP
Mourant Ozannes (Cayman) LLP
3
Exhibit 23.1
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CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Stockholders and Board of Directors of
Texxon Holding Limited:
We hereby consent to the inclusion in the foregoing Registration Statement of Texxon Holding Limited and its subsidiaries (collectively the “Company”) on the Amendment No.5 to Form F-1 of our report dated on March 31, 2025, relating to our audits of the accompanying consolidated balance sheets of the Company as of June 30, 2024 and 2023, and the related consolidated statements of operations and comprehensive income, changes in shareholders’ equity and cash flows for each of the years in the two-year period ended June 30, 2024.
We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ ZH CPA, LLC
Denver, Colorado
August 14, 2025
999 18th Street, Suite 3000, Denver, CO, 80202 USA Phone: 1.303.386.7224 Fax: 1.303.386.7101 Email: admin@zhcpa.us
Exhibit 99.3
Principal: Benson
S.F, Li |
B.Se.LLB.LLM. MBA |
李 緒峰律 師行 BENSON LI & CO.
|
Unit 3708, 37t Floor, West Tower, Shun Tak Centre, 168-200 Connaught Road Central, Hong Kong 香港中環干诺道中 168-200 號 信德中心西座 37 樓 3708 室 |
| SOLICITORS | Tel/電話:(852)2544 9833 Fax/博真:(852)2542 2555 | ||
| Agents for Trade Marks & Patents | |||
| Your Ref: | Direct Line: 2544 9833 |
| Our Ref: BL/334469/2024 | Date: 14 August 2025 |
| To: | Texxon Holding Limited |
703, Block A, 1799 Wuzhong Road
Minhang District, Shanghai, China, 200335
Dear Sirs
Legal Opinion
| re: | Texxon Holding Limited |
| Hong Kong Legal Opinion regarding certain Hong Kong matters |
We as lawyers qualified to practice in Hong Kong Special Administrative Region (“Hong Kong” ) of People’s Republic of China (“PRC”).
We are acting as Hong Kong legal counsel to Texxon Holding Limited (the “Company”), a company incorporated under the laws of Cayman Islands, in connection with the initial public offering (“Offering”) of the Company in the United States pursuant to the Company’s registration statement on Form F-1, including all amendments or supplements thereto (the “Registration Statement”) filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”) under the U.S. Securities Act of 1933, as amended, and (b) the proposed listing and trading of the Company’s ordinary shares on the Nasdaq Stock Market LLC (“Nasdaq”).
This opinion is confined to and given on the basis of the laws of Hong Kong as currently applied by the Courts of Hong Kong as at the date hereof. We have not investigated nor are we qualified in and do not express or imply any opinion on the laws of any other jurisdiction.
Documents Examined
For the purposes of this opinion, we have examined original or copies certified or otherwise identified to our satisfaction of the following:-
| a) | The Certificate of Incorporation of Texxon Hong Kong Limited (the “HK Subsidiary”); |
| b) | Business Registration Certificate of the HK Subsidiary; |
| c) | The Articles of Association of the HK Subsidiary; |
BENSON LI & CO.
SOLICITORS
| d) | Annual Return of the HK Subsidiary dated 28 January 2025; |
| e) | Letter of confirmation from the HK Subsidiary’s director dated 8 August 2025 (attached in Appendix 1). |
| f) | Such other documents, corporate records and instruments as we have deemed necessary for the purposes of this opinion. |
Assumptions
In giving this opinion, we have assumed the following:
| a) | All copies of the documents are true and correct copies and conforms in every material respect to the latest version of the same; |
| b) | All matters required by law to the recorded in the corporate documents are so recorded, and all corporate minutes, resolutions, certificates, documents and records which we have reviewed are accurate and complete, and all facts expressed in or implied thereby are accurate and complete. |
Our opinion
Based upon and subject to the foregoing, we are of the opinion that:
1: Enforceability of civil liabilities in Hong Kong's Enterprise Tax Law.
In Hong Kong, there are no VAT or consumption tax. Hong Kong does not levy tax on capital gains on sales of a company or business. There are also no withholding taxes levied on dividends and interest. The main tax applicable to companies registered in Hong Kong is corporate income tax, commonly known as profit tax.
Hong Kong operates a “territorial tax” system, established under the Inland Revenue Ordinance. A Hong Kong company is only required to pay tax on profits arising from its Hong Kong operations.
Hong Kong's territorial tax system is that companies are not taxed on profits generated outside of Hong Kong. Companies incorporated in Hong Kong but with no business and paying no tax there are commonly known as “offshore companies”. Whether a company makes a profit out of a Hong Kong business is at the appreciation of the Inland Revenue Department and ultimately the courts. Generally speaking, a company is eligible for the offshore status and profit tax exemption if:
(i) it has no customers or suppliers in Hong Kong;
(ii) it does not sell products or services in Hong Kong;
(iii) the products do not transit through Hong Kong;
(iv) it is not managed from Hong Kong;
2
BENSON LI & CO.
SOLICITORS
Hong Kong's corporate tax system is usually described as a “flat tax”. This is because the profits tax rate has been fixed rather than progressive as in many other jurisdictions. Hong Kong traditionally applied a single-tier tax system, whereby limited liability companies and unincorporated businesses were taxed on their profits at a normal profits tax rate of 16.5% and 15%, respectively.
Since 2018, the two-tier system effectively introduces a concessionary profits tax rate. It is a reduced tax rate of 8.25% (50% of the 16.5% tax rate) for the first HKD 2 million profits generated by companies having business in Hong Kong.
In summary, companies having business in Hong Kong are now subject to the following profits tax rates under the two-tier tax system:
| (i) | Incorporated businesses such as limited liability companies are subject to 8.25% concessionary tax rate on their first HKD 2 million of profit. All subsequent profits are subject to profits tax at the rate of 16.5%; |
| (ii) | Unincorporated businesses (such as sole proprietorship) are taxed at 7.25% for profits up to HKD 2 million. Additional profits are subject to tax at a rate of 15%. |
We are instructed that the HK Subsidiary does not carry on any business activities in Hong Kong. Therefore, the HK Subsidiary is not liable to pay any profit tax in Hong Kong.
2. Data security law.
In Hong Kong, it is mainly governed by the Personal Data (Privacy) Ordinance (Cap.486) (“the Ordinance”). Data Protection Principle (“DPP”) 4(1) of Schedule 1 to the Personal Data (Privacy) Ordinance (Cap. 486) requires a data user to take all practicable steps to ensure that any personal data held by the data user is protected against unauthorised or accidental access, processing, erasure, loss or use, having particular regard to:
(a) the kind of data and the harm that could result if any of those things should occur;
(b) the physical location where the data is stored;
(c) any security measures incorporated (whether by automated means or otherwise) into any equipment in which the data is stored;
(d) any measures taken for ensuring the integrity, prudence, and competence of persons having access to the data; and
(e) any measures taken for ensuring the secure transmission of the data.
A data user, being the person who either alone or jointly or in common with other persons, controls the collection, holding, processing, or use of personal data, is therefore under a positive duty to safeguard the security of personal data by taking all reasonably practicable steps.
We are instructed that the HK Subsidiary has no operation and does not carry on any business activities in Hong Kong, and has not received any personal data, confidential information as well as other information and data requiring security measure since its incorporation.
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BENSON LI & CO.
SOLICITORS
Therefore we are of the opinion that the laws regarding protection of data as mentioned above are not applicable to the HK Subsidiary.
3. Anti-monopoly law.
(a) Main rules
The main source of competition law in Hong Kong is the Competition Ordinance (Cap 619). The Competition Ordinance provides for three main prohibitions:
(i) A prohibition on restrictive agreements and concerted practices;
(ii) A prohibition on the abuse of a substantial degree of market power; and
(iii) A prohibition on mergers and acquisitions that substantially lessen competition in Hong Kong (limited to the telecommunications sector).
Restrictive agreements and concerted practices. The First Conduct Rule of the Competition Ordinance prohibits an undertaking (this includes any entity, including natural persons, engaged in economic activity) from making or giving effect to an agreement, engaging in a concerted practice, or as a member of an association of undertakings, making or giving effect to a decision of the association, if the object or effect of the agreement, concerted practice or decision is to prevent, restrict or distort competition in Hong Kong. The prohibition in the Ordinance does not make a distinction between “horizontal” restrictive arrangements (that means, between competitors) and “vertical” restrictive arrangements (that means, between a supplier and a customer or a supplier and a distributor). However, the Ordinance lists as “serious anticompetitive conduct” price fixing, market sharing, output restriction and bid- rigging, each of which typically involve horizontal arrangements between competitors. This stricter approach towards horizontal restrictive arrangements is also reflected in the Competition Commission’s Guideline on the First conduct rule, whose main focus is on horizontal arrangements, with the law as interpreted by the Commission being less strict regarding vertical restrictions, except for conduct amounting to resale price maintenance (which involves the supplier fixing, maintaining or controlling the resale price of its products).
Abuses of market power. The Second Conduct Rule of the Competition Ordinance prohibits an undertaking that has a substantial degree of market power in a market from abusing that power by engaging in conduct that has as its object or effect the prevention, restriction or distortion of competition in Hong Kong (such as predatory pricing, tying, bundling, refusal to deal, margin squeeze practices and exclusive dealing). The Competition Commission’s interpretation reflected in its Guideline on the Second conduct rule shows that it is mainly concerned with exclusionary conduct (i.e. foreclosure of competitors), with no discussion in the Commission’s guideline of exploitative abuses (i.e. exploiting one’s market power to increase profits). It is also noteworthy that contrary to the approach adopted in some other jurisdictions, neither the Ordinance nor the Commission’s guidance refers to a market share threshold that may be indicative of a substantial degree of market power.
Abusive practices that would otherwise be prohibited under the Second Conduct Rule may benefit from a series of exceptions, including where they are adopted to comply with legal requirements or where they are necessary for the performance of a service of general economic interest. Mergers and acquisitions in the telecommunications sector. The Merger Rule of the Competition Ordinance prohibits mergers and acquisitions that have, or are likely to have, the effect of substantially lessening competition in Hong Kong. The Merger Rule only applies to mergers involving telecommunications carrier licensees.
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(b) Sanctions
The competition law regime in Hong Kong adopts a judicial enforcement model, where sanctions and remedies can only be imposed by the Competition Tribunal. The Tribunal may impose a wide range of sanctions on undertakings (including individuals) found to have contravened the First or Second Conduct Rule or for their involvement in such contraventions. These include pecuniary penalties of up to 10 per cent of the total turnover obtained in Hong Kong for each year of infringement, up to a maximum of three years. Disqualification orders can also be imposed on directors for a period of up to five years.
(c) Extraterritorial effect
The Competition Ordinance has extraterritorial reach in that it applies to activities conducted outside Hong Kong if they have the object or effect of preventing, restricting or distorting competition in Hong Kong.
Enforcement regime
(a) Public and private enforcement
Under the Competition Ordinance, the Competition Commission and the Communications Authority have the power to investigate. Adjudicative powers are conferred on the courts, principally the Competition Tribunal.
The Competition Commission
It is the principal competition authority responsible for enforcing the Competition Ordinance through enforcement proceedings before the Competition Tribunal. It comprises five to 16 members appointed by the Chief Executive in Council. The Commission has the power to investigate, as well as powers to issue block exemption orders and decisions confirming individual exemption or exclusion status, issue implementation guidelines, and accept commitments and issue infringement notices.
The Communications Authority
It is the competition authority responsible for enforcing the Competition Ordinance in the telecommunications and broadcasting sectors. It has the same powers as the Commission under the Ordinance.
The Competition Tribunal
It is a specialised court within the Court of First Instance with the power to impose sanctions and order redress in cases brought before it by the Commission or the Communications Authority. The Tribunal also hears appeals against both competition authorities’ decisions and hears follow-on private damages actions concerning contraventions of the conduct rules.
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BENSON LI & CO.
SOLICITORS
In Hong Kong, private litigants can only bring “follow-on” actions for damages suffered as a result of conduct in breach of the Competition Ordinance after the conduct has been ruled as a contravention of the competition rules by the Competition Tribunal.
We are instructed that the HK Subsidiary has no business operation since its incorporation. Therefore, we are of the opinion that the Competition Ordinance is not applicable to the HK Subsidiary.
4: Foreign exchange control in Hong Kong.
In accordance with Article 112 of the Basic Law of Hong Kong, there is no foreign exchange control in Hong Kong. Further, Hong Kong Government shall safeguard the free flow of capital within, into and out of Hong Kong. As such, we are of the opinion that there are no restrictions imposed by Hong Kong Government on the transfer of capital within, into and out of Hong Kong (including funds from Hong Kong to the PRC).
5. Business operation of the HK Subsidiary and requirement of Government regulations
As confirmed by the director of the HK Subsidiary, the HK Subsidiary is a holding company with no business operations since its incorporation, neither the HK Subsidiary is currently required to obtain regulatory approval from the Hong Kong government for the overseas listing plan of the Company in the U.S., nor is the HK Subsidiary required to obtain any specific license or permission for its incorporation and activities in Hong Kong, other than a general business registration certificate, which is current as of the date of this prospectus.
The statements in the Registration Statement on Form F-1 under the prospectus cover page and the captions “Prospectus Summary”, “Risk Factors”, and “Corporate History and Structure” to the extent that they describe or summarize Hong Kong legal or regulatory matters fairly present or fairly summarize in all material respects the Hong Kong legal matters referred to therein; and such statements do not contain an untrue statement of a material fact, and do not omit to state any material fact necessary to make the statements, in light of the circumstances under which they were made, not misleading.
We hereby consent to the use of this opinion in, and the filing hereof as an exhibit to, the Registration Statement, and to the use of our firm’s name in the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended, or the regulations promulgated thereunder.
Yours faithfully,
| /s/ Benson Li & Co. Solicitors | |
| Benson Li & Co. Solicitors |
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