UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
(Mark one)
OR
For
the fiscal year ended
OR
OR
for the transition period from ____________ to ____________
Commission
file number
(Exact name of the Registrant as specified in its charter)
(Jurisdiction of incorporation or organization)
c/o Qingdao Tiandihui Foodstuffs Co. Ltd.,
Tel: +86-532-8615-7918
(Address of principal executive offices)
c/o Qingdao Tiandihui Foodstuffs Co. Ltd.,
People’s
Republic of
Tel: +
(Name, Telephone, E-mail and/or Facsimile Number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
| Title of each class | Name of each exchange on which registered | |
| The |
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None.
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None.
On April 29, 2022, the issuer had
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes
☐
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Yes
☐
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
Yes
☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| ☐ Large Accelerated filer | ☐ Accelerated filer | ☒ |
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 13(a) of the Exchange Act.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s
assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C.
7262(b)) by the registered public accounting firm that prepared or issued its audit report.
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
| ☒ | ☐ International Financial Reporting Standards as issued by the International Accounting Standards Board | ☐ Other |
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.
☐ Item 17 ☐ Item 18
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes ☐ No ☒
Table of Contents
i
CERTAIN INFORMATION
In this Annual Report on Form 20-F (the “Annual Report”), unless otherwise indicated, numerical figures included in this Annual Report have been subject to rounding adjustments. Accordingly, numerical figures shown as totals in various tables may not be arithmetic aggregations of the figures that precede them.
For the sake of clarity, this Annual Report follows the English naming convention of first name followed by last name, regardless of whether an individual’s name is Chinese or English.
Except where the context otherwise requires and for purposes of this Annual Report only:
| ● | Depending on the context, the terms “we,” “us,” “our company,” and “our” refer to TDH Holdings, Inc., a British Virgin Islands company; |
| ● | TDH HK Limited, a Hong Kong company wholly-owned by TDH HOLDINGS, INC.; |
| ● | TDH Foods Limited, a Hong Kong company wholly-owned by TDH HOLDINGS, INC.; |
| ● | TDH Group BVA, a Belgium company wholly-owned by TDH Holdings, Inc; |
| ● | TDH Income Corporation, a Nevada corporation; |
| ● | Ruby21Noland LLC, a Missouri corporation; |
| ● | Far Ling’s Inc., a Missouri corporation; |
| ● | Bo Ling’s Chinese Restaurant, Inc., a Kansas corporation; |
| ● | Qingdao Tiandihui Foodstuffs Co., Ltd., a Chinese limited liability company; |
| ● | Qingdao Tiandihui Pet Foodstuffs Co., Ltd., a Chinese limited liability company; |
| ● | Qingdao Tiandihui Foodstuffs Sales Co., Ltd., a Chinese limited liability company; |
| ● | Beijing Chongai Jiujiu Cultural Communication Co., Ltd., a Chinese limited liability company; |
| ● | “shares” and “common shares” refer to our shares, $0.001 par value per share; |
| ● | “China” and “PRC” refer to the People’s Republic of China, excluding, for the purposes of this Annual Report only, Macau, Taiwan and Hong Kong; and |
| ● | all references to “RMB,” and “Renminbi” are to the legal currency of China, all references to “USD,” and “U.S. Dollars” are to the legal currency of the United States., all references to “Yen” and “¥” is to the legal currency of Japan, and all references to “Euro” and “€” are to the legal currency of Belgium. |
ii
FORWARD-LOOKING STATEMENTS
This Report contains “forward-looking statements” that represent our beliefs, projections and predictions about future events. All statements other than statements of historical fact are “forward-looking statements” including any projections of earnings, revenue or other financial items, any statements of the plans, strategies and objectives of management for future operations, any statements concerning proposed new projects or other developments, any statements regarding future economic conditions or performance, any statements of management’s beliefs, goals, strategies, intentions and objectives, and any statements of assumptions underlying any of the foregoing. Words such as “may”, “will”, “should”, “could”, “would”, “predicts”, “potential”, “continue”, “expects”, “anticipates”, “future”, “intends”, “plans”, “believes”, “estimates” and similar expressions, as well as statements in the future tense, identify forward-looking statements.
These statements are necessarily subjective and involve known and unknown risks, uncertainties and other important factors that could cause our actual results, performance or achievements, or industry results, to differ materially from any future results, performance or achievements described in or implied by such statements. Actual results may differ materially from expected results described in our forward-looking statements, including with respect to correct measurement and identification of factors affecting our business or the extent of their likely impact, the accuracy and completeness of the publicly available information with respect to the factors upon which our business strategy is based on the success of our business.
Forward-looking statements should not be read as a guarantee of future performance or results, and will not necessarily be accurate indications of whether, or the times by which, our performance or results may be achieved. Forward-looking statements are based on information available at the time those statements are made and management’s belief as of that time with respect to future events and are subject to risks and uncertainties that could cause actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements. Important factors that could cause such differences include, but are not limited to, those factors discussed under the headings “Risk Factors”, “Operating and Financial Review and Prospects,” “Information on the Company” and elsewhere in this Annual Report.
This Annual Report should be read in conjunction with our audited financial statements and the accompanying notes thereto, which are included in Item 18 of this Annual Report.
Summary of Risk Factors
Investing in our Common Shares involves significant risks. You should carefully consider all of the information in this annual report before making an investment in our Common Shares. Below please find a summary of the principal risks we face, organized under the relevant headings. These risks are discussed more fully in the section titled “Risk Factors”
Risks related to our business. See “Risk Factors – Risks Related to Our Business”
Risk and uncertainties related to our business include, but are not limited to, the following:
| ● | Legal claims by vendors could impair our ability to continue as a going concern. |
| ● | Various pending lawsuits, legal claims, proceedings and arbitrations could impair our ability to continue as a going concern. |
| ● | Labor arbitration claims by former employees could impair our ability to continue as a going concern. |
| ● | The report of our independent registered public accounting firm on our financial statements includes an explanatory paragraph that expresses substantial doubt about our ability to continue as a going concern. |
| ● | We have incurred recurring losses and anticipate continuing to incur losses in the future. |
| ● | The turnaround of our business depends on our ability to accurately predict consumer trends and demand and successfully introduce new products and product line extensions and improve existing products. |
| ● | We may not be able to successfully implement our turning loss into profits strategy on a timely basis or at all. |
| ● | Any damage to our reputation or our brand may materially adversely affect our business, financial condition and results of operations. |
| ● | Our business is dependent on trends that may change or not continue, and our historical growth may not be indicative of our future results. |
| ● | There may be decreased spending on pets globally in a challenging economic climate. |
| ● | Our business depends, in part, on the sufficiency and effectiveness of our marketing and trade promotion programs. |
| ● | We depend on our key personnel, and our business and growth prospects may be severely disrupted if we lose their services. |
iii
| ● | If we are unable to maintain or increase prices, we may fail to generate a positive margin. |
| ● | If our products are alleged to cause injury or illness or fail to comply with PRC or other applicable governmental regulations, we may need to recall our products and may experience product liability claims. |
| ● | We rely upon a limited number of contract manufacturers to provide a significant portion of our supply of products. |
| ● | We operate in a highly competitive industry and may lose market share or experience margin erosion if we are unable to compete effectively. |
| ● | Relocating some of our production facilities may adversely affect our results of operations. |
| ● | Our online activities are dependent on our ability to access the Internet and operate online in a fast, secure and reliable manner. |
| ● | We may be subject to intellectual property infringement claims or other allegations, which could result in substantial damages and diversion of management’s efforts and attention. |
| ● | Our success depends on our ability to attract and retain key employees and the succession of senior management. |
Risks related to our restaurant segment business. See “Risk Factors – Risks Related to the Restaurant Segment”
Risk and uncertainties related to our restaurant segment business include, but are not limited to, the following:
| ● | Social distancing measures and changes in consumer behavior as a result of COVID-19 have affected and may materially and adversely affect us. |
| ● | Our restaurant base is geographically concentrated in Kansas, and we could be negatively affected by conditions specific to these states. |
| ● | Failure to preserve the value and relevance of our brand could have an adverse impact on our financial results. |
| ● | If we do not anticipate and address evolving consumer preferences and effectively execute our pricing, promotional and marketing plans, our business could suffer. |
| ● | We face intense competition in our markets, which could hurt our business. |
Risks related to our the Covid-19 pandemic. See “Risk Factors – Risks Related to the Current Pandemic”
Risk and uncertainties related to the current pandemic business include, but are not limited to, the following:
| ● | The continued uncertainties associated with the global spread of the COVID-19 (coronavirus) may further adversely impact the Company’s business operations. |
Risks related to Doing Business in China. See “Risk Factors – Risks Related to Doing Business in China”
Risk and uncertainties related to doing business in China include, but are not limited to, the following:
| ● | Because of our corporate structure, we as well as the investors are subject to unique risks due to uncertainty of the interpretation and the application of the PRC laws and regulations. |
| ● | Uncertainties with respect to the PRC legal system could have a material adverse effect on us. |
| ● | The Chinese government exerts substantial influence over the manner in which we must conduct our business activities and may intervene or influence our operations at any time, which could result in a material change in our operations and the value of our Common Shares. |
| ● | Draft rules for China-based companies seeking for securities offerings in foreign stock markets was released by the CSRC for public consultation. While such rules have not yet come into effect, the Chinese government may exert more oversight and control over overseas public offerings conducted by China-based issuers, which could significantly limit or completely hinder our ability to offer or continue to offer our Common Shares to investors and could cause the value of our Common Shares to significantly decline or become worthless. |
iv
| ● | CSRC and other Chinese government agencies may exert more oversight and control over offerings that are conducted overseas and foreign investment in China-based issuers. Additional compliance procedures may be required in connection offerings, and, if required, we cannot predict whether we will be able to obtain such approval. As a result, we face uncertainty about future actions by the PRC government that could significantly affect our ability to offer or continue to offer securities to investors and cause the value of our securities to significantly decline or be worthless. |
| ● | We may be liable for improper use or appropriation of personal information provided by our customers. |
| ● | We are dependent on the state of the PRC’s economy and a general economic downturn, a recession or a sudden disruption in business conditions in the PRC would have a material adverse effect on our business, financial condition and results of operations. |
| ● | Since our operations and assets are located in the PRC, shareholders may find it difficult to enforce a U.S. judgment against the assets of our company, our directors and executive officers. |
| ● | We hold certain of our cash balances in RMB in uninsured bank accounts in China. |
| ● | We may be subject to PRC regulatory limitations on merger and acquisition (M&A) activities. |
| ● | Fluctuation of the Renminbi may indirectly affect our financial condition by affecting the volume of cross-border money flow. |
| ● | We may become a passive foreign investment company, which could result in adverse U.S. tax consequences to U.S. investors. |
| ● | Introduction of new laws or changes to existing laws by the PRC government may adversely affect our business. |
| ● | Governmental control of currency conversion may affect the value of your investment. |
| ● | PRC’s labor law restricts our ability to reduce our workforce in the PRC in the event of an economic downturn and may increase our production costs. |
| ● | Changes in PRC’s political and economic policies could harm our business. |
| ● | If relations between the United States and China worsen, our share price may decrease and we may have difficulty accessing U.S. capital markets. |
| ● | Because our operations are located in the PRC, information about our operations is not readily available from independent third-party sources. |
Risks related to Doing Business in China. See “Risk Factors – Risks Related to the Ownership of our Common Shares”
Risk and uncertainties related to ownership of our Commons Shares include, but are not limited to, the following:
| ● | We are a holding company incorporated in the British Virgin Islands. As a holding company with no material operations of our own, we conduct a substantial majority of our operations through our subsidiaries established in the PRC. |
| ● | Recent joint statement by the SEC and PCAOB, proposed rule changes submitted by Nasdaq, and an act passed by the U.S. Senate all call for additional and more stringent criteria to be applied to emerging market companies upon assessing the qualification of their auditors, especially the non-U.S. auditors who are not inspected by the PCAOB. These developments could add uncertainties to our listing. |
| ● | The Holding Foreign Companies Accountable Act all call for additional and more stringent criteria to be applied to emerging market companies upon assessing the qualification of their auditors, especially the non-U.S. auditors who are not inspected by the PCAOB. These developments could add uncertainties to our continued listing. |
| ● | We are an “emerging growth company” and we cannot be certain if the reduced disclosure requirements applicable to “emerging growth companies” will make our shares less attractive to investors. |
| ● | If our financial condition deteriorates as a NASDAQ listed company, we may not meet continued listing standards on the NASDAQ Capital Market. |
| ● | We are a “foreign private issuer,” and our disclosure obligations differ from those of U.S. domestic reporting companies. As a result, we may not provide you the same information as U.S. domestic reporting companies or we may provide information at different times, which may make it more difficult for you to evaluate our performance and prospects. |
| ● | The market price of shares may be volatile, which could cause the value of your investment to decline. |
| ● | As the rights of shareholders under British Virgin Islands law differ from those under U.S. law, you may have fewer protections as a shareholder. |
v
PART I
| ITEM 1. | IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS |
Not required.
| ITEM 2. | OFFER STATISTICS AND EXPECTED TIMETABLE |
Not required.
| ITEM 3. | KEY INFORMATION |
| A. | [Reserved] |
| B. | Capitalization and Indebtedness |
Not required.
| C. | Reasons for the Offer and Use of Proceeds |
Not required.
| D. | Risk factors |
You should carefully consider the following risk factors, together with all of the other information included in this Annual Report.
Risks Related to Our Business
Legal claims by vendors could impair our ability to continue as a going concern.
Since November 2019, the Company has been a subject of 57 lawsuits by its raw material supplies, printing and packaging supplies, transportation companies and other vendors. The claims raised in these lawsuits pertain to the Company’s non-payment of various invoices for supplier and vendor services rendered, with related interest and costs. As of the date of this report, in 44 cases, the creditors have reached civil conciliation letters with our company, and in 9 cases, the court has issued civil judgments. With respect to the remaining 4 cases, the plaintiffs withdrew the lawsuit because of lack of evidence. The mediation and judgment involved total claims of RMB13.86 million (USD$2.12 million). Such liabilities have been accrued and reflected in the consolidated financial statements for the year ended December 31, 2020. On March 13, 2021, a land use right and a factory building on the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were auctioned by the court for $5,098,461 (RMB33.14 million). On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
1
Various pending lawsuits, legal claims, proceedings and arbitrations could impair our ability to continue as a going concern.
As of December 31, 2021, we had the following pending lawsuits, legal claims, proceedings and arbitrations:
| ● | On December 2, 2019, Qingdao Lingang Real Estate Co., Ltd. (“QLRE”), filed a civil lawsuit against Qingdao Tiandihui Foodstuffs Co., Ltd., Rongfeng Cui, and Yanjuan Wang. The Company entered into a loan agreement with QLRE in 2018 and borrowed RMB20 million (USD3.18 million) from QLRE in connection with purchase of a factory. The loan was guaranteed by Rongfeng Cui and his wife, Yanjuan Wang. The Company failed to make repayment to QLRE. On March 4, 2020, the Court ordered that: (i) the Company repay QLRE the principal amount of RMB20 million plus interest of RMB 550,000 accrued as of October 31, 2019. The court ordered that the payment be made within 10 business days after the effective date of the court ruling, and also ordered that the Company pay interest at the rate of 2% per month for the period from the date of November 1, 2019 to the date of full discharge of the debt, as well as the litigation fee of RMB77,000 (USD$11,933). If the debt is not repaid within the required timeframe, interest shall be doubled from the effective date of court order until the date of full discharge of the debt. As of December 31, 2021, we have not made the loan repayment to QLRE. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings. |
| ● | On January 15, 2020, China Construction Bank (“CCB”), initiated a civil claim against Qingdao Tiandihui Foodstuffs Co., Ltd., Rongfeng Cui, and Yanjuan Wang. The plaintiff alleged that it executed a loan agreement with the Company in the amount of RMB19.93 million (USD3.08 million) for the purchase of manufacturing facility and the associated land use right located at Lingang Economic Development Zone, Huangdao District, Qingdao, Shandong Province, People’s Republic of China. Rongfeng Cui and his wife, Yanjuan Wang, co-signed for this loan as personal guarantors subject to joint and several liability in connection with the loan. The loan with CCB was guaranteed by Rongfeng Cui and Yanjuan Wang, and secured by a pledge by the aforementioned manufacturing facilities and associated land use right. On April 14, 2020, the Court has ordered among other things that the Company repay RMB19.93 million (USD3.25 million) of principal and accrued interest to CCB, and to sell the mortgaged property. On March 13, 2021, the land and factory buildings on the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were auctioned by the court for $5,098,461 (RMB33.14 million), of which, $3,192,827 (RMB21.14 million) has been used to repay loan principal and accrued interest to CCB. The repayment was completed by April 2021. |
| ● | On November 11, 2019, Shanghai Pudong Development Bank Qingdao Branch(“SPDB”), filed a civil lawsuit against Qingdao Tiandihui Foodstuffs Co., Ltd., Qingdao Saike Environmental Technology Co., Ltd. (“Saike”), Qingdao Gaochuang Technology Finance Guarantee Co., Ltd. (“Gaochuang”), Rongfeng Cui, and Yanjuan Wang. In 2018, the Company entered into agreements with SPDB to borrow an aggregate of RMB4.85 million (USD0.75 million) from SPDB for working capital purpose. The Company failed to repay the debt upon maturity. The borrowing from SPDB was guaranteed by Rongfeng Cui and Yanjuan Wang, and secure by a pledge of land use right and real property of Saike and certaim real property owned by Rongfeng Cui and Yanjuan Wang. The Company failed to make repayment to SPDB on the maturity date. On October 24, 2020, the court has ordered the Company to repay SPDB the principal owed plus interest at the annual interest rate of 18.25%. The payment was required to be made within 10 business days after the effective date of the order. If the debt is not paid within the required timeframe, interest shall be doubled from the effective date of the court order until the date of full discharge of the debt. The Company is also required to pay litigation fees in the amount of RMB156,880 (USD 24,312). As of December 31, 2021, we have not made the repayment to SPDB. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings. |
2
| ● | On December 10, 2019, Qingdao Gaochuang Technology Finance Guarantee Co., Ltd. (“Gaochuang”), initiated a civil claim against Qingdao Tiandihui Foodstuffs Co., Ltd., Qingdao Saike Environmental Technology Co., Ltd. (“Saike”), Rongfeng Cui, and Yanjuan Wang. In 2018, the Company entered into agreements with SPDB for bank acceptance draft and Gaochuang executed the guarantee of SPDB bank acceptance deposit on behalf of the Company in the amount of RMB1.2 million (USD0.19 million). The Company failed to repay the RMB 1.2 million ($0.19 million) deposit to Gaochuang upon the bank acceptance draft maturity date. The deposit made by Gaochuang was guaranteed by certain of the Company’s fixed assets and patents. On December 29, 2020, the court ordered the Company to repay the RMB 1.2 million ($0.19 million) deposit to Gaochuang and the interest at the annual interest rate of 4.15%. The payment was required to be made within 10 business days after the effective date of the court order. The court order also provides that if the debt is not paid within the required timeframe, interest shall be doubled from the effective date of court order until the date of full discharge of the debt. The court order also obligate the Company to bear litigation fees of RMB83,127(USD 12,882). As of December 31, 2021, we had not made the repayment to Gaochuang. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings. |
| ● | On May 6, 2020, the Postal Savings Bank of China Limited Weihai Road Sub-branch of Qingdao North District (hereinafter referred to as Postal Savings) filed a civil lawsuit against Qingdao Tiandihui Foodstuffs Co., Ltd., Rongfeng Cui and Yanjuan Wang. The Company entered into two loan agreements with Postal Savings in 2018 and 2019, respectively, and borrowed RMB9.9 million ($1.53 million) in aggregate. The loans were guaranteed by Rongfeng Cui and Yanjuan Wang, and were secured by a pledge of real property owned by the Company and real property owned by Rongfeng Cui. The Company failed to pay its debt to Postal Savings when it was due. In June 2020, the court ordered the Company to repay to Postal Savings the principal and interest under the loan, and to reimburse Postal Savings for the litigation fees incurred by Postal Savings. If the court decide to auction the pledged real properties, Postal Savings shall have the priority right of the repayment from the auction proceeds. As of December 31, 2021, we had not made the repayment to Postal Savings. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings. |
Labor arbitration claims by former employees could impair our ability to continue as a going concern.
The Company dismissed certain employees in 2019 and 2020 and only maintained 42 full-time employees during fiscal year 2021 and as of December 31, 2021. As a result of the employee layoffs, certain of the Company’s former employees commenced arbitration proceedings against the Company under applicable labor rules and standards, claiming, among others, lost wages, severance payments and/or social security obligations totaling RMB3.68 million (USD0.56 million). There were 98 labor arbitrations, of which 6 cases has been settled and the trial court has issued decisions on the remaining 92 cases. The Company accrued approximately $0.4 million contingent liabilities in other current liabilities on the consolidated balance sheet as of December 31, 2019 and recognized contingent losses of approximately $0.4 million for the year ended December 31, 2019. Upon the issuance of rulings in these cases, the Company further accrued approximately $0.1 million wage and/or severance payables in other current liabilities on the consolidated balance sheet as of December 31, 2020 and recognized losses of approximately $0.1 million for the year ended December 31, 2020. On March 13, 2021, the land and factory buildings above the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were actioned by the court for $5,098,461 (RMB 33.14 million). In 2021, we have paid RMB3.73 million to substantially settle the labor arbitration cases with our former employees. We only had RMB 0.5 million ($0.08 million) remaining severance payables to them as of December 31, 2021, which we anticipate to fully settle by the end of 2022. Failure to successfully settle the claims could impair our ability to continue as a going concern. it entered into bankruptcy proceedings.
3
The report of our independent registered public accounting firm on our financial statements includes an explanatory paragraph that expresses substantial doubt about our ability to continue as a going concern, and if our business is unable to continue it is likely investors will lose all of their investment.
As discussed in Note 2 to the consolidated financial statements to this Annual Report, the Company has suffered significant losses from operations and had negative cash flows from operating activities for the year ended December 31, 2021. The Company’s revenues generated are not currently sufficient and its business operations may be further affected by the ongoing COVID-19 pandemic. There can be no assurances that future revenue or capital infusion will be sufficient to enable the Company to develop its business to a level where it will be profitable or to generate positive cash flows. Our auditor, YCM CPA INC, has indicated in their report on the Company’s financial statements for the fiscal year ended December 31, 2021 that there is “substantial doubt about our ability to continue as a going concern”. A “going concern” opinion could impair our ability to finance our operations through the sale of equity, incurring debt, or other financing alternatives.
We anticipate incurring additional operating losses and may not be able to regain profitability in the foreseeable near future. Management’s plan to alleviate the substantial doubt about our ability to continue as a going concern include working to improve the Company’s liquidity and capital sources mainly through cash flow from its operations, renewal of bank borrowings and raise sufficient capital through equity or debt financing, strategic alliances or otherwise. If we are unable to achieve these goals, our business will be jeopardized and we may not be able to continue. If we ceased operations, it is likely that all of our investors will lose their investment.
In the absence of an infusion of substantial additional capital, our ability to continue to operate will be impaired, and we may not be able to continue as a going concern. Additionally, even if we raise sufficient capital through equity or debt financing, strategic alliances or otherwise, there can be no assurances that future revenue or capital infusion will be sufficient to enable us to develop our business to a level where it will be profitable or to generate positive cash flows.
We have incurred recurring losses and anticipate continuing to incur losses in the future.
Due to the sharp rise in market price of raw materials, the lack of operational efficiency of our production facilities and our inability to make bank loan repayment to financial institutions upon maturity, we temporarily suspended our production and normal business operations and we were involved in certain legal proceedings beginning in November 2019. The COVID-19 outbreak and spread further disrupted our business activities during the period from the beginning of 2020 up to May 2020 when we resumed our business operations. On October 31, 2021, we acquired 51% equity interests of Far Ling’s Inc. and 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. This resulted in an increase of $0.6 million in food service revenue. However, our revenues generated are not currently sufficient and our business operations may be further affected by the ongoing COVID-19 pandemic. Our net losses were $874,668 in 2020 and $6,715,958 in 2021. Although we resumed our business operations in May 2020 and we are currently trying to implement our business strategies in order to manage the future growth of our business, we cannot assure our current efforts may achieve the anticipated results and we may continue to incur operating losses in the near term. We cannot guarantee that going forward we will operate profitably. In order to achieve profitability, among other factors, management must successfully execute our growth and operations in the markets on which we are focused. If we are unable to successfully take necessary steps, we may be unable to sustain or increase our profitability in the future.
4
The report of our independent registered public accounting firm expresses substantial doubt about the Company’s ability to continue as a going concern.
Our consolidated financial statements have been prepared assuming we will continue as a going concern, which contemplates the realization of assets and liquidation of liabilities in the normal course of business. However, for the year ended December 31, 2021, we have incurred a net loss of approximately $6.72 million and cash used in operating activities amounted to approximately $3.45 million. As of December 31, 2021, our losses are significant and our revenues are insufficient, and while we have raised some capital through equity financing, there can be no assurances that future revenue or capital infusion will be sufficient to enable us to develop our business to a level where it will be profitable or to generate positive cash flows.
Management’s plan to alleviate the substantial doubt about the Company’s ability to continue as a going concern include attempting to improve its business profitability, its ability to generate sufficient cash flow from its operations to meet its operating needs on a timely basis, obtain additional working capital funds through debt and equity financings to eliminate inefficiencies in order to meet its anticipated cash requirements. However, there can be no assurance that these plans and arrangements will be sufficient to fund the Company’s ongoing capital expenditures, working capital, and other requirements. If we are unable to achieve these goals, our business would be jeopardized and the Company may not be able to continue. If we ceased operations, it is likely that all of our investors would lose their investment.
The Company is party to various legal proceedings by its vendors and lenders, which proceedings distract our management, are expensive to conduct and could result in significant damage award against the Company.
During the period from November 2019 to 2020, the Company has been named as a defendant in 57 lawsuits by its raw material supplies, printing and packaging supplies, transportation companies and other vendors. The claims raised in these lawsuits pertain to the Company’s non-payment of various invoices for supplier and vendor services rendered, with interest and costs. As of the date of this Annual Report, the creditors of 44 cases have reached civil conciliation letters with the Company, and the court has issued civil judgments in 9 cases, another 4 claimants withdrew their cases for various reasons including lack of evidence. The mediation and judgment costs are estimated approximately RMB13.86 million (USD$2.12 million). In addition, several lending institutions have instituted legal proceedings to recover loans made to the Company. Finally, there are several labor arbitration claims against the Company brought by its former employees following the layoffs, claiming, among others, lost wages, severance payments and/or social security obligations totaling RMB3.68 million (USD$0.56 million). On March 13, 2021, the land and factory buildings above the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were auctioned by the court for $5,098,461 (RMB 33.14 million), among which, approximately $3.2 million has been used to repay the defaulted loan to China Construction Bank. In 2021, we have paid RMB3.73 million to substantially settle the labor arbitration cases with our former employees and we only have RMB 0.5 million ($0.08 million) remaining in severance payables to them as of December 31, 2021, which we anticipate to fully settle by the end of 2022. Failure to successfully settle the claims could impair our ability to continue as a going concern.
The turnaround of our business depends on our ability to accurately predict consumer trends and demand and successfully introduce new products and product line extensions and improve existing products.
Due to the sharp rise in market price of raw materials, the lack of operational efficiency of our production facilities and our inability to make bank loan repayment upon maturity, we have suspended our production and normal business operations and we were involved in certain legal proceedings since November 2019. The COVID-19 outbreak and spread further disrupted our business activities from the beginning of 2020 up to May 2020 when we resumed our business operations. These factors led to significant decrease in our pet foods revenue by 40.46% or $0.33 million in 2021 as compared to 2020. On October 31, 2021, we acquired 51% equity interests of Far Ling’s Inc and 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. This resulted in an increase of $0.6 million in food service revenue. However, our revenues generated are not currently sufficient and our business operations may be further affected by the ongoing COVID-19 pandemic. We suffered recurring net loss of approximately $6.72 million in 2021. We are currently facing the challenges to recover our production and normal business operations.
5
Our turnaround depends, in part, on our ability to successfully introduce new products and product line extensions and improve and reposition our existing products to meet the requirements of pet owners and the dietary needs of their pets. This, in turn, depends on our ability to predict and respond to evolving consumer trends, demands and preferences. The development and introduction of innovative new products and product line extensions involve considerable costs. In addition, it may be difficult to establish new supplier relationships and determine appropriate product selection when developing a new product or product line extension. Any new product or product line extension may not generate sufficient customer interest and sales to become a profitable product or to cover the costs of its development and promotion and may reduce our operating income. In addition, any such unsuccessful effort may adversely affect our brand. If we are not able to anticipate, identify or develop and market products that respond to changes in requirements and preferences of pet parents and their pets or if our new product introductions or repositioned products fail to gain consumer acceptance, we may not grow our business as anticipated, our sales may decline and our business, financial condition and results of operations may be materially adversely affected.
We may not be able to successfully implement our turning loss into profits strategy on a timely basis or at all.
Our future success depends, in large part, on our ability to implement our turning loss into profits strategy, including expanding distribution and improving placement of our products in the stores of our retail partners, attracting new consumers to our brands, introducing new products and product line extensions and expanding into new markets. Our ability to implement this strategy depends, among other things, on our ability to:
| ● | accurately anticipate customer needs, and innovate and develop new products or product enhancements that meet customer needs; |
| ● | price our products competitively and differentiate our product offerings from those of our competitors; |
| ● | enter into distribution and other strategic arrangements with retailers and other potential distributors of our products; |
| ● | continue to effectively compete in our distribution channels; |
| ● | increase our brand recognition by effectively implementing our marketing strategy and advertising initiatives; |
| ● | expand and maintain brand loyalty; |
| ● | maintain and, to the extent necessary, improve our high standards for product quality, safety and integrity; |
| ● | maintain sources for the required supply of quality raw ingredients to meet our growing demand; and |
| ● | identify and successfully enter and market our products in new geographic markets and market segments. |
These initiatives require significant capital expenditures and investment of valuable management and financial resources. There are no guarantees that we will be able to effectively manage any future growth in an efficient, cost-effective and timely manner, or at all. We may not be able to successfully implement our turning loss into profits strategy and may need to change our strategy. If we fail to implement our turning loss into profits strategy or if we invest resources in a turning loss into profits strategy that ultimately proves unsuccessful, our business, financial condition and results of operations may be materially adversely affected.
6
Any damage to our reputation or our brand may materially adversely affect our business, financial condition and results of operations.
Maintaining our strong reputation with consumers, our retail partners and our suppliers is critical to our success. Our brands may suffer if our marketing plans or product initiatives are not successful. The importance of our brands may increase if competitors offer more products with formulations similar to ours. Further, our brands may be negatively impacted due to real or perceived quality issues or if consumers perceive us as being untruthful in our marketing and advertising, even if such perceptions are not accurate. Product contamination, the failure to maintain high standards for product quality, safety and integrity, including raw materials and ingredients obtained from suppliers, or allegations of product quality issues, mislabeling or contamination, even if untrue or caused by our third-party contract manufacturers or raw material suppliers, may reduce demand for our products or cause production and delivery disruptions. We maintain guidelines and procedures to ensure the quality, safety and integrity of our products. However, we may be unable to detect or prevent product and/or ingredient quality issues, mislabeling or contamination, particularly in instances of fraud or attempts to cover up or obscure deviations from our guidelines and procedures. If any of our products become unfit for consumption, cause injury or are mislabeled, we may have to engage in a product recall and/or be subject to liability. Damage to our reputation or our brands or loss of consumer confidence in our products for any of these or other reasons could result in decreased demand for our products and our business, financial condition and results of operations may be materially adversely affected.
Our business is dependent on trends that may change or not continue, and our historical growth may not be indicative of our future results.
The growth of the global pet food industry and the market in China, in particular, depends primarily on the continuance of current trends in humanization of pets and premiumization of pet foods as well as on general economic conditions, the size of the pet population and average dog size. These trends may not continue or may change. In the event of a decline in the overall number or average size of pets, a change in the humanization, premiumization or health and wellness trends or during challenging economic times, we may be unable to persuade our customers and consumers to purchase our branded products instead of lower-priced products, and our business, financial condition and results of operations may be materially adversely affected.
There may be decreased spending on pets globally in a challenging economic climate.
Our business, financial condition and results of operations may be materially adversely affected by a challenging economic climate, including adverse changes in interest rates, volatile commodity markets and inflation, contraction in the availability of credit in the market and reductions in consumer spending. In addition, a slow-down in the general economy and/or PRC economy or a shift in consumer preferences for economic reasons or otherwise to less expensive products may result in reduced demand for our products which may affect our profitability. The keeping of pets and the purchase of pet-related products may constitute discretionary spending for some of our consumers and any material decline in the amount of consumer discretionary spending may reduce overall levels of pet ownership or spending on pets. As a result, a challenging economic climate may cause a decline in demand for our products which could be disproportionate as compared to competing pet food brands since our products command a price premium. In addition, we cannot predict how current or worsening economic conditions in the PRC and globally will affect our partners, suppliers and distributors. If economic conditions result in decreased spending on pets and have a negative impact on our retail partners, suppliers or distributors, our business, financial condition and results of operations may be materially adversely affected.
Our business depends, in part, on the sufficiency and effectiveness of our marketing and trade promotion programs.
Due to the competitive nature of our industry, we must effectively and efficiently promote and market our products through advertisements as well as trade promotions and incentives to sustain our competitive position in our market. Marketing investments may be costly. In addition, we may, from time to time, change our marketing strategies and spending, including the timing or nature of our trade promotions and incentives. We may also change our marketing strategies and spending in response to actions by our competitors and other pet food companies. The sufficiency and effectiveness of our marketing and trade promotions and incentives are important to our ability to retain and/or improve our market share and margins. If our marketing and trade promotions and incentives are not successful or if we fail to implement sufficient and effective marketing and trade promotions and incentives or adequately respond to changes in our competitors’ marketing strategies, our business, financial condition and results of operations may be adversely affected.
7
We depend on our key personnel, and our business and growth prospects may be severely disrupted if we lose their services.
Our future success depends heavily upon the continued service of our key executives. We rely on their business, industry, financial and capital markets knowledge and experience. If our CEO or CFO became unable or unwilling to continue in their present positions, we may not be able to replace them easily, our business may be significantly disrupted and our financial condition and results of operations may be materially adversely affected.
We do not maintain key man life insurance on any of our senior management or key personnel.
The loss of any one of them would have a material adverse effect on our business and operations. Competition for senior management and our other key personnel is intense and the pool of suitable candidates is limited. We may be unable to locate a suitable replacement for any senior management or key personnel that we lose. In addition, if any member of our senior management or key personnel joins a competitor or forms a competing company, they may compete with us for customers, business partners and other key professionals and staff members of our Company. In addition, we compete for qualified personnel with other companies, and we face competition in attracting skilled personnel and retaining the members of our senior management team. These personnel possess technical and business capabilities which are difficult to replace. There is intense competition for experienced senior management with technical and industry expertise in our industry, and we may not be able to retain our key personnel. Intense competition for these personnel could cause our compensation costs to increase, which could have a material adverse effect on our results of operations. Our future success and ability to grow our business will depend in part on the continued service of these individuals and our ability to identify, hire and retain additional qualified personnel. If we are unable to attract and retain qualified employees, we may be unable to meet our business and financial goals.
If we are unable to maintain or increase prices, we may fail to generate a positive margin.
We rely in part on price increases to offset cost increases and improve the profitability of our business. Our ability to maintain prices or effectively implement price increases may be affected by a number of factors, including raw material market price fluctuation, competition, effectiveness of our marketing programs, the continuing strength of our brands, market demand and general economic conditions, including inflationary pressures. In particular, in response to increased promotional activity by other pet food companies, we may have to increase our promotional spending, which may resulted in a lower average price per pound for our products and adversely impacted our gross margins. During challenging economic times, consumers may be less willing or able to pay a price premium for our branded products and may shift purchases to lower-priced or other value offerings, making it more difficult for us to maintain prices and/or effectively implement price increases. In addition, our retail partners and distributors may pressure us to rescind price increases that we have announced or already implemented, whether through a change in list price or increased promotional activity. If we are unable to maintain or increase prices for our products or must increase promotional activity, our margins may be adversely affected. Furthermore, price increases generally result in volume losses, as consumers purchase fewer units. If such losses are greater than expected or if we lose distribution due to a price increase, our business, financial condition and results of operations may be materially adversely affected.
If our products are alleged to cause injury or illness or fail to comply with PRC or other applicable governmental regulations, we may need to recall our products and may experience product liability claims.
Our products may be exposed to product recalls, including voluntary recalls or withdrawals, if they are alleged to pose a risk of injury or illness, or if they are alleged to have been mislabeled, misbranded or adulterated or to otherwise be in violation of governmental regulations. We may also voluntarily recall or withdraw products in order to protect our brand or reputation if we determine that they do not meet our standards, whether for palatability, appearance or otherwise. If there is any future product recall or withdrawal, it could result in substantial and unexpected expenditures, destruction of product inventory, damage to our reputation and lost sales due to the unavailability of the product for a period of time, and our business, financial condition and results of operations may be materially adversely affected. We also may be subject to claims if the consumption or use of our products is alleged to cause injury or illness. If there is a judgment against us or a settlement agreement related to a claim, our business, financial condition and results of operations may be materially adversely affected.
8
We are dependent on a limited number of retailer customers for a significant portion of our sales.
We sell our products to retail partners and distributors in specialty channels. Our ten largest retail partners, accounted for 54% of our net sales for the year ended December 31, 2018, 44% in 2019, 40% in 2020 and 38% in 2021. When we suspended of our production in November 2019 to deal with various vendor claims, legal proceedings and labor arbitrations as discussed above, and with additional challenges brought in by the global spread of COVID-19, our customer base has been reduced since 2020. If we were to continue to lose any of our key customers, if any of our retail partners continue to reduce the amount of their orders or if any of our key customers consolidate, reduce their store footprint and/or gain greater market power, or if we fail to attract a sufficient number of customers in a cost-effective manner, our business, financial condition and results of operations may be materially adversely affected. In addition, we may be similarly adversely impacted if any of our key customers experience any operational difficulties or generate less traffic.
We rely upon a limited number of contract manufacturers to provide a significant portion of our supply of products.
There is limited available manufacturing capacity that meets our quality standards. We have agreements with a network of contract manufacturers that require them to provide us with specific finished products. In 2021, our business operations were largely disrupted by the COVID-19 outbreak and spread as well pending claims, lawsuits, legal proceedings and labor arbitrations, which led to our reduced business activities and limited fulfillment of customer orders. As a result of significant decrease in our revenue, 4% of our cost of sales was derived from products purchased from contract manufacturers in 2021. The manufacture of our products may not be easily transferable to other sites in the event that any of our contract manufacturers experience breakdown, failure or substandard performance of equipment, disruption of supply or shortages of raw materials and other supplies, labor problems, power outages, adverse weather conditions and natural disasters or the need to comply with environmental and other directives of governmental agencies. From time to time, a contract manufacturer may experience financial difficulties or other business disruptions, which could disrupt our supply of finished goods or require that we incur additional expense by providing financial accommodations to the contract manufacturer or taking other steps to seek to minimize or avoid supply disruption, such as establishing a new contract manufacturing arrangement with another provider. The loss of any of these contract manufacturers or the failure for any reason of any of these contract manufacturers to fulfill their obligations under their agreements with us, including a failure to meet our quality controls and standards, may result in disruptions to our supply of finished goods. We may be unable to locate an additional or alternate contract manufacturing arrangement that meets our quality controls and standards in a timely manner or on commercially reasonable terms, if at all.
To the extent our retailer customers purchase products in excess of consumer consumption in any period, our sales in a subsequent period may be adversely affected as our customers seek to reduce their inventory levels.
From time to time, our retailer customers may purchase more product than they expect to sell to consumers during a particular time period. Our retailer customers may grow their inventory in anticipation of, or during, our promotional events, which typically provide for reduced prices during a specified time or other customer or consumer incentives. Our retailer customers may also grow inventory in anticipation of a price increase for our products, or otherwise over-order our products as a result of overestimating demand for our products. If a retailer customer increases its inventory during a particular reporting period as a result of a promotional event, anticipated price increase or otherwise, then sales during the subsequent reporting period may be adversely impacted as our customers seek to reduce their inventory to customary levels. This effect may be particularly pronounced when the promotional event, price increase or other event occurs near the end or beginning of a reporting period or when there are changes in the timing of a promotional event, price increase or similar event, as compared to the prior year. To the extent our retailer customers seek to reduce their usual or customary inventory levels or change their practices regarding purchases in excess of consumer consumption, our net sales and results of operations may be materially adversely affected in that period.
9
We operate in a highly competitive industry and may lose market share or experience margin erosion if we are unable to compete effectively.
We compete on the basis of product quality and palatability, brand awareness and loyalty, product variety and ingredients, interesting product names, product packaging and package design, reputation, price and promotional efforts. We compete with a significant number of companies of varying sizes, including divisions or subsidiaries of larger companies who may have greater financial resources and larger customer bases than we have. As a result, these competitors may be able to identify and adapt to changes in consumer preferences more quickly than us due to their resources and scale. They may also be more successful in marketing and selling their products, better able to increase prices to reflect cost pressures and better able to increase their promotional activity, which may impact us and the entire pet food industry. If these competitive pressures cause our products to lose market share or experience margin erosion, our business, financial conditions and results of operations may be materially adversely affected.
We may face issues with respect to raw materials and other supplies, including increased costs, disruptions of supply, shortages, contaminations, adulterations or mislabeling.
The Company’s key raw material ingredients include meat and fish. We and our contract manufacturers use various raw materials and other supplies in our business, including ingredients, packaging materials and fuel. The prices of our raw materials and other supplies are subject to fluctuations attributable to, among other things, changes in supply and demand of crops or other commodities, weather conditions, agricultural uncertainty or governmental incentives and controls. We generally do not have long-term supply contracts with our ingredient suppliers. The length of the contracts is fixed for a period of time, typically up to a year or for a season and/or a crop year. In addition, some of our raw materials are sourced from a limited number of suppliers. We may not be able to renew or enter into new contracts with our existing suppliers following the expiration of such contracts on commercially reasonable terms, or at all. If commodity prices increase, we may not be able to increase our prices to offset these increased costs. Moreover, our competitors may be better able than we are to implement productivity initiatives or effect price increases or to otherwise pass along cost increases to their customers. Some of the raw materials we use are vulnerable to adverse weather conditions and natural disasters, such as floods, droughts, frosts, earthquakes and pestilences and may be impacted by climate change and other factors. Adverse weather conditions and natural disasters can reduce crop size and crop quality, which in turn could reduce supplies of raw materials, increase the prices of raw materials, increase costs of storing raw materials and interrupt or delay our production schedules if harvests are delayed. Our competitors may not be impacted by such weather conditions and natural disasters depending on the location of their suppliers and operations. If any of our raw materials or supplies are alleged or proven to include contaminants affecting the safety or quality of our products, we may need to find alternate materials or supplies, delay production of our products, discard or otherwise dispose of our products, or engage in a product recall, all of which may have a materially adverse effect on our business, financial condition and results of operations. We may be unable to detect or prevent the use of ingredients which do not meet our quality standards if our ingredient suppliers engage in fraud or attempt to cover up or obscure deviations from our guidelines and procedures. Any such conduct by any of our suppliers may result in a loss of consumer confidence in our brand and products and a reduction in our sales if consumers perceive us as being untruthful in our marketing and advertising and may materially adversely affect our brand, reputation, business, financial condition and results of operations. If our sources of raw materials and supplies are terminated or affected by adverse prices, weather conditions or quality concerns, we may not be able to identify alternate sources of raw materials or other supplies that meet our quality controls and standards to sustain our sales volumes or on commercially reasonable terms, or at all.
We may not be able to manage our manufacturing and supply chain effectively which may adversely affect our results of operations.
We must accurately forecast demand for our products in order to ensure we have adequate available manufacturing capacity. Our forecasts are based on multiple assumptions which may cause our estimates to be inaccurate and affect our ability to obtain adequate manufacturing capacity (whether our own manufacturing capacity or contract manufacturing capacity) in order to meet the demand for our products, which could prevent us from meeting increased customer or consumer demand and harm our brand and our business. However, if we overestimate our demand and overbuild our capacity, we may have significantly underutilized assets and may experience reduced margins. If we do not accurately align our manufacturing capabilities with demand, our business, financial condition and results of operations may be materially adversely affected. In addition, we must continuously monitor our inventory and product mix against forecasted demand. If we underestimate demand, we risk having inadequate supplies. We also face the risk of having too much inventory on hand that may reach its expiration date and become unsaleable, and we may be forced to rely on markdowns or promotional sales to dispose of excess or slow-moving inventory. If we are unable to manage our supply chain effectively, our operating costs could increase and our profit margins could decrease.
10
Our market size estimate may prove to be inaccurate.
Data for the PRC and global pet food retail sales is collected for most, but not all channels, and as a result, it is difficult to estimate the size of the market and predict the rate at which the market for our products will grow, if at all. While our market size estimate was made in good faith and is based on assumptions and estimates we believe to be reasonable, this estimate may not be accurate.
Relocating some of our production facilities may adversely affect our results of operations.
The Company’s Canning Facility and Pude Facility are located in the old city of Huangdao District, Qingdao. The Company has learned that the local governmental authorities proposed plans to redevelop certain portions of the old city to allow for more residential dwellings in the area. In March 2018, we terminated the lease of the Canning facility in light of the implementation of this plan. The relocation of Canning facility had adverse material effect on the Company’s operations by, among other things, causing a decrease in our production capacity from 18 tons per day to 4.6 tons per day since March 2018. If and to the extent we may be required to relocate the Pude Facility in the future, our results of operations may also be adversely affected.
We may face difficulties as we expand into countries in which we have no prior operating experience.
We intend to continue to expand our domestic and global footprint by entering into new markets. As we expand our business in China and into new countries we may encounter foreign economic, political, regulatory, personnel, technological, language barriers and other risks that increase our expenses or delay our ability to become profitable in such countries. These risks include:
| ● | fluctuations in currency exchange rates; |
| ● | the difficulty of enforcing agreements and collecting receivables through some foreign legal systems; |
| ● | customers in some foreign countries potentially having longer payment cycles; |
| ● | changes in local tax laws, tax rates in some countries that may exceed those of the United States or Canada and lower earnings due to withholding requirements or the imposition of tariffs, exchange controls or other restrictions; |
| ● | seasonal reductions in business activity; |
| ● | the credit risk of local customers and distributors; |
| ● | general economic and political conditions; |
| ● | unexpected changes in legal, regulatory or tax requirements; |
| ● | differences in language, culture and trends in foreign countries with respect to pets and pet care; |
11
| ● | the risk that certain governments may adopt regulations or take other actions that would have a direct or indirect adverse impact on our business and market opportunities, including nationalization of private enterprise; and |
| ● | non-compliance with applicable currency exchange control regulations, transfer pricing regulations or other similar regulations. |
In addition, our expansion into new countries may require significant resources and the efforts and attention of our management and other personnel, which will divert resources from our existing business operations. We may seek to grow our business through acquisitions of or investments in new or complementary businesses, facilities, technologies or products, or through strategic alliances, and the failure to manage acquisitions, investments or strategic alliances, or the failure to integrate them with our existing business, could have a material adverse effect on us. From time to time we may consider opportunities to acquire or make investments in new or complementary businesses, facilities, technologies or products, or enter into strategic alliances, that may enhance our capabilities, expand our manufacturing network, complement our current products or expand the breadth of our markets.
Potential and completed acquisitions and investments and other strategic alliances involve numerous risks, including:
| ● | problems assimilating the purchased business, facilities, technologies or products; |
| ● | issues maintaining uniform standards, procedures, controls and policies; |
| ● | unanticipated costs associated with acquisitions, investments or strategic alliances; |
| ● | diversion of management’s attention from our existing business; |
| ● | adverse effects on existing business relationships with suppliers, contract manufacturers, retail partners and distribution customers; |
| ● | risks associated with entering new markets in which we have limited or no experience; |
| ● | potential loss of key employees of acquired businesses; and |
| ● | increased legal and accounting compliance costs. |
We do not know if we will be able to identify acquisitions or strategic relationships we deem suitable, whether we will be able to successfully complete any such transactions on favorable terms or at all or whether we will be able to successfully integrate any acquired business, facilities, technologies or products into our business or retain any key personnel, suppliers or customers. Our ability to successfully grow through strategic transactions depends upon our ability to identify, negotiate, complete and integrate suitable target businesses, facilities, technologies and products and to obtain any necessary financing. These efforts could be expensive and time-consuming and may disrupt our ongoing business and prevent management from focusing on our operations. If we are unable to integrate any acquired businesses, facilities, technologies and products effectively, our business, results of operations and financial condition could be materially adversely affected.
Our online activities are dependent on our ability to access the Internet and operate online in a fast, secure and reliable manner.
We utilize online sale and multi-brand, multi-store brand sale strategies which use Tmall.com, JD.com and 1688 as our marketing platforms. Although we suspended our overseas e-commerce business since 2019, we are still preparing to expand our domestic e-commerce business in the near future. Our PRC marketing group has established a comprehensive network of various brand shops. Our online activities are dependent on our ability to operate online in a fast, secure and reliable manner which may be adversely affected as a result of PRC governmental regulations of e-commerce and other services, electronic devices, and competition and restrictive governmental actions. In addition, we may face risks relating to the governmental laws and regulations regarding consumer and data protection, privacy, network security, payments, and restrictions on pricing or discounts, as well as lower levels of consumer access, use of and spending on the Internet. Occurrence of any of the foregoing events (or a combination thereof) could have a material adverse effect on our ability to conduct online business, our financial condition and results of operations.
12
Failure to protect our intellectual property could harm our competitive position or require us to incur significant expenses to enforce our rights.
Our trademarks are valuable assets that support our brand and consumers’ perception of our products. We rely on trademark, copyright, trade secret, patent and other intellectual property laws, as well as nondisclosure and confidentiality agreements and other methods, to protect our trademarks, trade names, proprietary information, technologies and processes. Our non-disclosure agreements and confidentiality agreements may not effectively prevent disclosure of our proprietary information, technologies and processes and may not provide an adequate remedy in the event of unauthorized disclosure of such information, which could harm our competitive position. In addition, effective patent, copyright, trademark and trade secret protection may be unavailable or limited for some of our trademarks and patents in some foreign countries. We may need to engage in litigation or similar activities to enforce our intellectual property rights, to protect our trade secrets or to determine the validity and scope of proprietary rights of others. Any such litigation could require us to expend significant resources and divert the efforts and attention of our management and other personnel from our business operations. If we fail to protect our intellectual property, our business, financial condition and results of operations may be materially adversely affected.
We may be subject to intellectual property infringement claims or other allegations, which could result in substantial damages and diversion of management’s efforts and attention.
While we believe that our products do not infringe in any material respect upon proprietary rights of other parties and/or that meritorious defenses would exist with respect to any assertions to the contrary, we may from time to time be found to infringe on the proprietary rights of others. If patents later issue on these applications, we may be found liable for subsequent infringement. Any claims that our products or processes infringe these rights, regardless of their merit or resolution, could be costly and may divert the efforts and attention of our management and technical personnel. We may not prevail in such proceedings given the complex technical issues and inherent uncertainties in intellectual property litigation. If such proceedings result in an adverse outcome, we could, among other things, be required to:
| ● | pay substantial damages; |
| ● | cease the manufacture, use or sale of the infringing products; |
| ● | discontinue the use of the infringing processes; |
| ● | expend significant resources to develop non-infringing processes; and |
| ● | enter into licensing arrangements from the third party claiming infringement, which may not be available on commercially reasonable terms, or may not be available at all. |
If any of the foregoing occurs, our ability to compete could be affected or our business, financial condition and results of operations may be materially adversely affected.
13
Our success depends on our ability to attract and retain key employees and the succession of senior management.
Due to decreased business scale since late 2019 which was further affected by COVID-19, the Company dismissed certain employee and currently only maintains 42 full-time employees as of the date of this filing. However, in order to recover our business operations and achieve our turnaround goal, we may need effectively recruit, train and motivate a large number of new employees. Our continued growth and success require us to hire, retain and develop our leadership bench. If we are unable to attract and retain talented, highly qualified senior management and other key executives, as well as provide for the succession of senior management, our growth and results of operations may be adversely impacted.
Risks Related to the Restaurant Segment
The ongoing COVID-19 pandemic may continue to adversely affect, our operations, financial condition, liquidity and financial results.
In response to the Covid-19 outbreak, many state and local authorities had mandated the temporary closure of non-essential businesses and dine-in restaurant activity or limited indoor dining capacities. COVID-19 and the government measures taken to control it have caused a significant disruption to our business of Bo Lings. As of the filing date of this Annual Report on Form 20-F, we had Bo Lings operating at 100% indoor dining capacity. However, there can be no assurance that developments with respect to the COVD-19 pandemic and government measures taken to control it will not adversely affect our operations and financial results.
Our Bo Lings restaurant is located in Kansas. As a result of our concentration in this market, we may be disproportionately affected by any increased severity of the pandemic and heightened regulatory measures in Kansas compared to other chain restaurants with a broader national footprint.
A prolonged occurrence of COVID-19 may result in restaurant re-closures, prohibition on indoor dining, and further restrictions, including possible travel restrictions and additional restrictions on the restaurant industry. Our efforts to mitigate the effect of COVID-19 on our business or the economic downturn may be unsuccessful, and we may not be able to commence operations in a timeframe that is sufficient or otherwise take actions in response to developments with regard to the pandemic. The future sales levels of Bo Lings and our ability to implement our growth strategy remain highly uncertain, as the full impact and duration of the COVID-19 pandemic continues to evolve.
Social distancing measures and changes in consumer behavior as a result of COVID-19 have affected and may materially and adversely affect Bo Lings.
Social distancing measures due to the COVID-19 pandemic has impacted our operation of Bo Lings, as customers choose to avoid public gathering places, which actions could result in a loss of sales and profit. Additionally, consumer behavior has changed and may fundamentally change as a result of COVID-19 in both the near and long term and such change may pose significant challenges to our operation of Bo Lings. Traffic in restaurants, including Bo Lings, has been affected and may be materially and adversely affected with more consumers relying on off-premises orders. Consumer spending has also been and may continue to be negatively impacted by general macroeconomic conditions and consumer confidence, including the impacts of economic downturns, resulting from the COVID-19 pandemic. All of this could materially and adversely impact sales at Bo Lings and our growth prospects. We have made adjustments to our operation of Bo Lings due to the COVID-19 pandemic and may have to re-design our service and business models to accommodate consumers’ changed behavior patterns. Any such attempted effort could result in capital expenditures, business disruption and lower margin sales, and may not be successful in growing our profitability.
Our restaurant base is geographically concentrated in Kansas, and we could be negatively affected by conditions specific to these states.
Bo Lings is located in Kansas. Adverse changes in demographic, unemployment, economic, regulatory or weather conditions in Kansas have had, and may continue to have, material adverse effects on our business, financial condition or results of operations. As a result of our concentration in this market, we have been, and in the future may be, disproportionately affected by adverse conditions in this market compared to other chain restaurants with a broader national footprint.
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Failure to preserve the value and relevance of our brand could have an adverse impact on our financial results.
To be successful in the future, we believe we must preserve, enhance and leverage the value of our brand, including corporate purpose, mission and values. Brand value is based in part on consumer perceptions, which are affected by a variety of factors, including the nutritional content and preparation of our food, the ingredients we use, the manner in which we source commodities and our general business practices, including the people practices at Bo Lings. Consumer acceptance of our offerings is subject to change for a variety of reasons, and some changes can occur rapidly. For example, nutritional, health, environmental and other scientific studies and conclusions, which constantly evolve and may have contradictory implications, drive popular opinion, litigation and regulation (including initiatives intended to drive consumer behavior) in ways that affect the “informal eating out” (“IEO”) segment or perceptions of our brand, generally or relative to available alternatives. Our business could also be impacted by business incidents or practices, whether actual or perceived, particularly if they receive considerable publicity or result in litigation, as well as by our position or perceived lack of position on environmental, social responsibility, public policy, geopolitical and similar matters. Consumer perceptions may also be affected by adverse commentary from third parties, including through social media or conventional media outlets, regarding the IEO segment or our brand, culture, operations, suppliers or franchisees. If we are unsuccessful in addressing adverse commentary or perceptions, whether or not accurate, our brand and financial results may suffer.
If we do not anticipate and address evolving consumer preferences and effectively execute our pricing, promotional and marketing plans, our business could suffer.
Our continued success depends on our ability to build upon our historic strengths and competitive advantages. In order to do so, we need to anticipate and respond effectively to continuously shifting consumer demographics and trends in food sourcing, food preparation, food offerings, and consumer behavior and preferences, including with respect to environmental and social responsibility matters, in the IEO segment. If we are not able to predict, or quickly and effectively respond to, these changes, or if our competitors predict or respond more effectively, our financial results could be adversely impacted.
Our ability to build upon our strengths and advantages also depends on the impact of our pricing, promotional and marketing plans, and the ability to adjust these plans to respond quickly and effectively to evolving customer behavior and preferences, as well as shifting economic and competitive conditions. Existing or future pricing strategies and marketing plans, as well as the value proposition they represent, are expected to continue to be important components of our business strategy. However, they may not be successful, or may not be as successful as the efforts of our competitors, which could negatively impact sales, guest counts and market share.
We face intense competition in our markets, which could hurt our business.
We compete primarily in the IEO segment, which is highly competitive. We also face sustained, intense competition from traditional, fast casual and other competitors, which may include many non-traditional market participants such as convenience stores, grocery stores, coffee shops and online retailers. We expect our environment to continue to be highly competitive, and our results in any particular reporting period may be impacted by a contracting IEO segment or by new or continuing actions, product offerings or consolidation of our competitors and third-party partners, which may have a short- or long-term impact on our results.
We compete on the basis of product choice, quality, affordability, service and location. In particular, we believe our ability to compete successfully in the current market environment depends on our ability to improve existing products, successfully develop and introduce new products, price our products appropriately, deliver a relevant customer experience, manage the complexity of our restaurant operations, manage our investments in technology and modernization, and respond effectively to our competitors’ actions or offerings or to unforeseen disruptive actions. There can be no assurance these strategies will be effective, and some strategies may be effective at improving some metrics while adversely affecting other metrics, which could have the overall effect of harming our business.
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Risk Related to the Current Pandemic
The continued uncertainties associated with the global spread of the COVID-19 (coronavirus) may further adversely impact the Company’s business operations.
In December 2019, a novel strain of coronavirus was reported in Wuhan, China. On March 11, 2020, the World Health Organization categorized it as a pandemic. In response to the COVID-19 outbreak, governments around the global have implemented measures such as lockdowns, travel restrictions, and closures of businesses and schools. As a result of the COVID-19 outbreak, we have experienced suspension of operations, interruption of supply chain and decline in sales orders by our customers. Our businesses, results of operations, financial position and cash flows were adversely affected in fiscal year 2021, including but not limited to material negative impact to our total revenues, slower collection of account receivables and significant disruptions of our supply chains. The continued uncertainties associated with COVID-19 may cause the revenue and cash flows to underperform in the next 12 months. The extent of the future impact of COVID-19 is still highly uncertain and cannot be predicted as of the financial statement reporting date.
Today, while our offices and manufacturing facilities remain open and business activities have fully resumed, we are closely monitoring all developments and are following the guidelines issued by local and national health authorities. We strive to accommodate and support our employees, while also maintaining our commitments to our customers. The extent of any future impact of the COVID-19 pandemic on our business is still highly uncertain and cannot be predicted as of the date of this report. Any potential impact to our operating results will depend, to a large extent, on future developments and new information that may emerge regarding the duration and severity of the COVID-19 pandemic and the actions taken by government authorities to contain the spread of the COVID-19 pandemic, almost all of which are beyond our control.
Risks Related to Doing Business in China
Because of our corporate structure, we as well as the investors are subject to unique risks due to uncertainty of the interpretation and the application of the PRC laws and regulations, including but not limited to limitation regulatory review of overseas listing of PRC companies through a special purpose vehicle. We are also subject to the risks of uncertainty about any future actions of the PRC government in this regard. We may also be subject to sanctions imposed by PRC regulatory agencies including Chinese Securities Regulatory Commission (“CSRC”) if we fail to comply with their rules and regulations. Adverse changes in political, economic and other policies of the Chinese government could have a material adverse effect on the overall economic growth of China, which could materially and adversely affect the growth of our business and our competitive position.
The majority of our business operations are conducted in China. Accordingly, our business, financial condition, results of operations and prospects are affected significantly by economic, political and legal developments in China. China’s economy differs from the economies of most developed countries in many respects, including with respect to the amount of government involvement, level of development, growth rate, control of foreign exchange, and allocation of resources. The PRC government exercises significant control over China’s economic growth through strategical allocation of resources, controlling the payment of foreign currency-denominated obligations, setting monetary policy, and providing preferential treatment to particular industries or companies. While the Chinese economy has experienced significant growth in the past decades, growth has been uneven, both geographically and among various sectors of the economy. The growth of the Chinese economy may not continue at a rate experienced in the past, and the impact of COVID-19 on the Chinese economy may continue. Any prolonged slowdown in the Chinese economy may reduce the demand for our services and materially and adversely affect our business and results of operations. Furthermore, any adverse change in the economic conditions in China, in policies of the PRC government or in laws and regulations in China could have a material adverse effect on the overall economic growth of China and market demand for our products and services. Such developments could adversely affect our businesses, lead to reduction in demand for our products and services and adversely affect our competitive position.
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Uncertainties with respect to the PRC legal system could have a material adverse effect on us.
The PRC legal system is based on written statutes. Prior court decisions may be cited for reference but have limited precedential value. We conduct our business primarily through our PRC Subsidiaries, and therefore these subsidiaries are generally subject to laws and regulations applicable to foreign investment in China. However, since these laws and regulations are relatively new and the PRC legal system continues to rapidly evolve, the interpretations of many laws, regulations and rules are not always uniform and enforcement of these laws, regulations and rules involves uncertainties, which may limit legal protections available to us. Recently, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council jointly issued the “Opinions on Severely Cracking Down on Illegal Securities Activities According to Law,” or the Opinions, which was made available to the public on July 6, 2021. The Opinions emphasized the need to strengthen the administration over illegal securities activities, and the need to strengthen the supervision over overseas listings by Chinese companies. Effective measures, such as promoting the construction of relevant regulatory systems will be taken to deal with the risks and incidents of China-concept overseas listed companies, and cybersecurity and data privacy protection requirements, etc. The Opinions and any related implementing rules to be enacted may subject us to compliance requirement in the future. In addition, some regulatory requirements issued by certain PRC government authorities may not be consistently applied by other government authorities (including local government authorities), thus making strict compliance with all regulatory requirements impractical, or in some circumstances impossible. For example, we may have to resort to administrative and court proceedings to enforce the legal protection that we enjoy either by law or contract. However, since PRC administrative and court authorities have discretion in interpreting and implementing statutory and contractual terms, it may be more difficult to predict the outcome of administrative and court proceedings and the level of legal protection we enjoy than in more developed legal systems. These uncertainties may impede our ability to enforce the contracts we have entered into with our business partners, customers and suppliers. In addition, such uncertainties, including any inability to enforce our contracts, together with any development or interpretation of PRC law that is adverse to us, could materially and adversely affect our business and operations. Furthermore, intellectual property rights and confidentiality protections in China may not be as effective as in the United States or other more developed countries. We cannot predict the effect of future developments in the PRC legal system, including the promulgation of new laws, changes to existing laws or the interpretation or enforcement thereof, or the preemption of local regulations by national laws. These uncertainties could limit the legal protections available to us and other foreign investors, including you. In addition, any litigation in China may be protracted and result in substantial costs and diversion of our resources and management attention.
The Chinese government exerts substantial influence over the manner in which we must conduct our business activities and may intervene or influence our operations at any time, which could result in a material change in our operations and the value of our Common Shares.
The Chinese government has exercised and continues to exercise substantial control over virtually every sector of the Chinese economy through regulation and state ownership. Our ability to operate in China may be harmed by changes in its laws and regulations, including those relating to securities regulation, data protection, cybersecurity and mergers and acquisitions and other matters. The central or local governments of these jurisdictions may impose new, stricter regulations or interpretations of existing regulations that would require additional expenditures and efforts on our part to ensure our compliance with such regulations or interpretations.
Government actions in the future could significantly affect economic conditions in China or particular regions thereof and could require us to materially change our operating activities or divest ourselves of any interests we hold in Chinese assets. Our business may be subject to various government and regulatory interference in the provinces in which we operate. We may incur increased costs necessary to comply with existing and newly adopted laws and regulations or penalties for any failure to comply. Our operations could be adversely affected, directly or indirectly, by existing or future laws and regulations relating to our business or industry.
Given recent statements by the Chinese government indicating an intent to exert more oversight and control over offerings that are conducted overseas and/or foreign investment in China-based issuers, any such action could significantly limit or completely hinder our ability to offer or continue to offer securities to investors and cause the value of such securities to significantly decline or become worthless.
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Recently, the General Office of the Central Committee of the Communist Party of China and the General Office of the State Council jointly issued the Opinions on Severely Cracking Down on Illegal Securities Activities According to Law, or the Opinions, which was made available to the public on July 6, 2021. The Opinions emphasized the need to strengthen the administration over illegal securities activities, and the need to strengthen the supervision over overseas listings by Chinese companies. Effective measures, such as promoting the construction of relevant regulatory systems, will be taken to deal with the risks and incidents of China-concept overseas listed companies. As of the date of this annual report, we have not received any inquiry, notice, warning, or sanctions from PRC government authorities in connection with the Opinions.
On June 10, 2021, the Standing Committee of the National People’s Congress of China, or the SCNPC, promulgated the PRC Data Security Law, which took effect in September 2021. The PRC Data Security Law imposes data security and privacy obligations on entities and individuals carrying out data activities, and introduces a data classification and hierarchical protection system based on the importance of data in economic and social development, and the degree of harm it will cause to national security, public interests, or legitimate rights and interests of individuals or organizations when such data is tampered with, destroyed, leaked, illegally acquired or used. The PRC Data Security Law also provides for a national security review procedure for data activities that may affect national security and imposes export restrictions on certain data an information.
In early July 2021, regulatory authorities in China launched cybersecurity investigations with regard to several China-based companies that are listed in the United States. The Chinese cybersecurity regulator announced on July 2 that it had begun an investigation of Didi Global Inc. (NYSE: DIDI) and two days later ordered that the company’s app be removed from smartphone app stores. On July 5, 2021, the Chinese cybersecurity regulator launched the same investigation on two other Internet platforms, China’s Full Truck Alliance of Full Truck Alliance Co. Ltd. (NYSE: YMM) and Boss of KANZHUN LIMITED (Nasdaq: BZ). On July 24, 2021, the General Office of the Communist Party of China Central Committee and the General Office of the State Council jointly released the Guidelines for Further Easing the Burden of Excessive Homework and Off-campus Tutoring for Students at the Stage of Compulsory Education, pursuant to which foreign investment in such firms via mergers and acquisitions, franchise development, and variable interest entities are banned from this sector.
On November 14, 2021, the Cyberspace Administration of China (“CAC”) released the Regulations on the Network Data Security Management (Draft for Comments), or the Data Security Management Regulations Draft, to solicit public opinion and comments. Pursuant to the Data Security Management Regulations Draft, data processor holding more than one million users/users’ individual information shall be subject to cybersecurity review before listing abroad. Data processing activities refers to activities such as the collection, retention, use, processing, transmission, provision, disclosure, or deletion of data. According to the latest amended Cybersecurity Review Measures, which was promulgated on December 28, 2021, and became effective on February 15, 2022 and replace the Cybersecurity Review Measures promulgated on April 13, 2020, an online platform operator holding more than one million users/users’ individual information shall be subject to cybersecurity review before listing abroad. Since the Cybersecurity Review Measures is new, the implementation and interpretation thereof is not yet clear. As of the date of this annual report, we have not been informed by any PRC governmental authority of any requirement that we file for approval.
On August 17, 2021, the State Council promulgated the Regulations on the Protection of the Security of Critical Information Infrastructure, or the Regulations, which took effect on September 1, 2021. The Regulations supplement and specify the provisions on the security of critical information infrastructure as stated in the Cybersecurity Review Measures. The Regulations provide, among others, that protection department of certain industry or sector shall notify the operator of the critical information infrastructure in time after the identification of certain critical information infrastructure.
On August 20, 2021, the SCNPC promulgated the Personal Information Protection Law of the PRC, or the Personal Information Protection Law, which took effect in November 2021. As the first systematic and comprehensive law specifically for the protection of personal information in the PRC, the Personal Information Protection Law provides, among others, that (i) an individual’s consent shall be obtained to use sensitive personal information, such as biometric characteristics and individual location tracking, (ii) personal information operators using sensitive personal information shall notify individuals of the necessity of such use and impact on the individual’s rights, and (iii) where personal information operators reject an individual’s request to exercise his or her rights, the individual may file a lawsuit with a People’s Court. Given that the above mentioned newly promulgated laws, regulations and policies were recently promulgated or issued, and have not yet taken effect (as applicable), their interpretation, application and enforcement are subject to substantial uncertainties.
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Draft rules for China-based companies seeking for securities offerings in foreign stock markets was released by the CSRC for public consultation. While such rules have not yet come into effect, the Chinese government may exert more oversight and control over overseas public offerings conducted by China-based issuers, which could significantly limit or completely hinder our ability to offer or continue to offer our Common Shares to investors and could cause the value of our Common Shares to significantly decline or become worthless.
On December 24, 2021, the CSRC and relevant departments of the State Council published the Draft Rules Regarding Overseas Listings, which aim to regulate overseas securities offerings and listings by China-based companies, are available for public consultation. The Draft Rules Regarding Overseas Listing aim to lay out the filing regulation arrangement for both direct and indirect overseas listing and clarify the determination criteria for indirect overseas listing in overseas markers.
The Draft Rules Regarding Overseas Listing, among other things, stipulate that, after making initial applications with overseas stock markets for initial public offerings or listings, all China-based companies shall file with the CSRC within three working days. The required filing materials with the CSRC include (without limitation): (i) record-filing reports and related undertakings, (ii) compliance certificates, filing or approval documents from the primary regulator of the applicants’ businesses (if applicable), (iii) security assessment opinions issued by related departments (if applicable), (iv) PRC legal opinions, and (v) prospectus. In addition, overseas offerings and listings may be prohibited for such China-based companies when any of the following applies: (1) if the intended securities offerings and listings are specifically prohibited by the laws, regulations or provision of the PRC; (2) if the intended securities offerings and listings may constitute a threat to, or endanger national security as reviewed and determined by competent authorities under the State Council in accordance with laws; (3) if there are material ownership disputes over applicants’ equity interests, major assets, core technologies, etc.; (4) if, in the past three years, applicants’ domestic enterprises, controlling shareholders or de facto controllers have committed corruption, bribery, embezzlement, misappropriation of property, or other criminal offenses disruptive to the order of the socialist market economy, or are currently under judicial investigation for suspicion of criminal offenses, or are under investigation for suspicion of major violations; (5) if, in the past three years, any directors, supervisors, or senior executives of applicants have been subject to administrative punishments for severe violations, or are currently under judicial investigation for suspicion of criminal offenses, or are under investigation for suspicion of major violations; (6) other circumstances as prescribed by the State Council. The Draft Administrative Provisions further stipulate that a fine between RMB 1 million and RMB 10 million may be imposed if an applicant fails to fulfill the filing requirements with the CSRC or conducts an overseas offering or listing in violation of the Draft Rules Regarding Overseas Listings, and in cases of severe violations, a parallel order to suspend relevant businesses or halt operations for rectification may be issued, and relevant business permits or operational license revoked.
The Draft Rules Regarding Overseas Listings, if enacted, may subject us to additional compliance requirements in the future, and though we believe that none of the situations that would clearly prohibit overseas listing and offering applies to us, we cannot assure you that we will be able to receive clearance of such filing requirements in a timely manner, or at all. There is also the possibility that we may not be able to obtain or maintain such approval or that we inadvertently concluded that such approval was not required. If prior CSRC approval was required while we inadvertently concluded that such approval was not required or if applicable laws and regulations or the interpretation of such were modified to require us to obtain the CSRC approval in the future, we may face regulatory actions or other sanctions from the CSRC or other Chinese regulatory authorities. These authorities may impose fines and penalties upon our operations in China, limit our operating privileges in China, delay or restrict the repatriation of the proceeds from offerings into China, or take other actions that could have a material adverse effect upon our business, financial condition, results of operations, reputation and prospects, as well as the trading price of our Common Shares. Any failure of us to fully comply with new regulatory requirements may significantly limit or completely hinder our ability to offer or continue to offer the Common Shares, cause significant disruption to our business operations, severely damage our reputation, materially and adversely affect our financial condition and results of operations, and cause the Common Shares to significantly decline in value or become worthless.
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CSRC and other Chinese government agencies may exert more oversight and control over offerings that are conducted overseas and foreign investment in China-based issuers, especially those in the technology field. Additional compliance procedures may be required in connection offerings, and, if required, we cannot predict whether we will be able to obtain such approval. If we are required to obtain PRC governmental permissions to commence the sale of securities, we will not commence offerings until we obtain such permissions. As a result, we face uncertainty about future actions by the PRC government that could significantly affect our ability to offer or continue to offer securities to investors and cause the value of our securities to significantly decline or be worthless.
On July 6, 2021, the General Office of the Communist Party of China Central Committee and the General Office of the State Council jointly issued a document to crack down on illegal activities in the securities market and promote the high-quality development of the capital market, which, among other things, requires the relevant governmental authorities to strengthen cross-border oversight of law-enforcement and judicial cooperation, to enhance supervision over China-based companies listed overseas, and to establish and improve the system of extraterritorial application of the PRC securities laws. Since this document is relatively new, uncertainties still exist in relation to how soon legislative or administrative regulation making bodies will respond and what existing or new laws or regulations or detailed implementations and interpretations will be modified or promulgated, if any, and the potential impact such modified or new laws and regulations will have on our future business, results of operations, and the value of our securities.
Further, Chinese government continues to exert more oversight and control over Chinese technology firms. On July 2, 2021, Chinese cybersecurity regulator announced, that it had begun an investigation of Didi Global Inc. (NYSE: DIDI) and two days later ordered that the company’s application be removed from smartphone application stores. On July 5, 2021, the Chinese cybersecurity regulator launched the same investigation on two other Internet platforms, China’s Full Truck Alliance of Full Truck Alliance Co. Ltd. (NYSE: YMM) and Boss of KANZHUN LIMITED (Nasdaq: BZ).
Therefore, CSRC and other Chinese government agencies may exert more oversight and control over offerings that are conducted overseas and foreign investment in China-based issuers, especially those in the technology field. As of the date of this annual report, we have not received any requirement to obtain approval of CSRC to list on U.S. exchanges. Further, however, given the current regulatory environment in the PRC, we and our PRC subsidiaries are still subject to the uncertainty of interpretation and enforcement of the rules and regulations in the PRC, which can change quickly with little advance notice, and any future actions of the PRC authorities, additional compliance procedures may be required in connection with this offering and our business operations. As a result, we face uncertainty about future actions by the PRC government that could significantly affect our ability to offer or continue to offer securities to investors and cause the value of our Common Shares to significantly decline or be worthless.
We or our PRC subsidiaries may be subject to PRC laws relating to the use, sharing, retention, security and transfer of confidential and private information, such as personal information and other data. These laws continue to develop, and the PRC government may adopt other rules and restrictions in the future. Non-compliance could result in penalties or other significant legal liabilities.
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The Cybersecurity Law, which was adopted by the National People’s Congress on November 7, 2016 and came into force on June 1, 2017, and the Cybersecurity Review Measures, or the “Review Measures,” which were promulgated on April 13, 2020, amended on December 28, 2021 and became effective on February 15, 2022, provide that personal information and important data collected and generated by a critical information infrastructure operator in the course of its operations in China must be stored in China, and if a critical information infrastructure operator purchases internet products and services that affect or may affect national security, it should be subject to cybersecurity review by the CAC. In addition, a cybersecurity review is required where critical information infrastructure operators, or the “CIIOs,” purchase network-related products and services, which products and services affect or may affect national security. Due to the lack of further interpretations, the exact scope of what constitute a “CIIO” remains unclear. Further, the PRC government authorities may have wide discretion in the interpretation and enforcement of these laws. In addition, Review Measures stipulates that an online platform operator holding more than one million users/users’ individual information shall be subject to cybersecurity review before listing abroad. Cybersecurity Review Measures does not provide a definition of “online platform operator”, therefore, we cannot assure you that we will not be deemed as an “online platform operator”. As of the date of this annual report, we or our PRC subsidiaries have not received any notice from any authorities identifying us as a CIIO or requiring us to undertake a cybersecurity review by the CAC. Further, as of the date of this annual report, we or our PRC subsidiaries have not been subject to any penalties, fines, suspensions, investigations from any competent authorities for violation of the regulations or policies that have been issued by the CAC. On June 10, 2021, the Standing Committee of the National People’s Congress promulgated the Data Security Law which took effect on September 1, 2021. The Data Security Law requires that data shall not be collected by theft or other illegal means, and it also provides that a data classification and hierarchical protection system shall be established. The data classification and hierarchical protection system protects data according to its importance in economic and social development, and the damages it may cause to national security, public interests, or the legitimate rights and interests of individuals and organizations if the data is falsified, damaged, disclosed, illegally obtained or illegally used, which protection system is expected to be built by the state for data security in the near future. On November 14, 2021, CAC published the Regulations on the Network Data Security Management (Draft for Comments), or the Data Security Management Regulations Draft to solicit public opinion and comments. Under the Data Security Management Regulations Draft, which provides that an overseas initial public offering to be conducted by a data processor processing the personal information of more than one million individuals shall apply for a cybersecurity review. Data processor means an individual or organization that independently makes decisions on the purpose and manner of processing in data processing activities, and data processing activities refers to activities such as the collection, retention, use, processing, transmission, provision, disclosure, or deletion of data. We may be deemed as a data processor under the Data Security Management Regulations Draft. However, the Data Security Management Regulations Draft has not been formally adopted. It is uncertain when the final regulation will be issued and take effect, how it will be enacted, interpreted or implemented, and whether it will affect us. There remains uncertainty as to how the Review Measures and the Data Security Management Regulations Draft will be interpreted or implemented and whether the PRC regulatory agencies, including the CAC, may adopt new laws, regulations, rules, or detailed implementation and interpretation related to the Review Measures and the Data Security Regulations Draft. If any such new laws, regulations, rules, or implementation and interpretation come into effect, we and our PRC subsidiaries expect to take all reasonable measures and actions to comply. We cannot assure you that PRC regulatory agencies, including the CAC, would take the same view as we do, and there is no assurance that we and our PRC subsidiaries can fully or timely comply with such laws should they be deemed applicable to our operations. Any cybersecurity review could also result in negative publicity with respect to our company and diversion of our managerial and financial resources. There is no certainty as to how such review or prescribed actions would impact our operations and we cannot guarantee that any clearance can be obtained or any actions that may be required for our continued listing on the Nasdaq capital market and the offering as well can be taken in a timely manner, or at all.
In addition, according to the Personal Information Protection Law, where the purpose of the activity is to provide a product or service to that natural person located within China, such activity shall comply with the Personal Information Protection Law. Further, the Data Security Law provides that where any data handling activity carried out outside of the territory of China harms the national security, public interests, or the legitimate rights and interests of citizens or organizations of China, legal liability shall be investigated in accordance with such law. However, the Personal Information Protection Law and the Data Security Law are relatively new, there remains uncertainty as to how the laws will be interpreted or implemented and whether the PRC regulatory agencies, including the CAC, may adopt new laws, regulations, rules, or detailed implementation and interpretation related to the two laws.
The regulatory requirements with respect to cybersecurity and data privacy are constantly evolving and can be subject to varying interpretations, and significant changes, resulting in uncertainties about the scope of our responsibilities in that regard. Failure to comply with the cybersecurity and data privacy requirements in a timely manner, or at all, may subject us to government enforcement actions and investigations, fines, penalties, suspension, or disruption of our PRC subsidiaries’ operations, among other things.
We may be liable for improper use or appropriation of personal information provided by our customers.
Our business can potentially involve collecting and retaining certain internal and customer data. We also maintain information about various aspects of our operations as well as regarding our employees. The integrity and protection of our customer, employee and company data is critical to our business. Our customers and employees expect that we will adequately protect their personal information. We are required by applicable laws to keep strictly confidential the personal information that we collect, and to take adequate security measures to safeguard such information.
The PRC Criminal Law, as amended by its Amendment 7 (effective on February 28, 2009) and Amendment 9 (effective on November 1, 2015), prohibits institutions, companies, and their employees from selling or otherwise illegally disclosing a citizen’s personal information obtained in performing duties or providing services or obtaining such information through theft or other illegal ways. On November 7, 2016, the SCNPC issued the Cyber Security Law of the PRC, or Cyber Security Law, which became effective on June 1, 2017. Pursuant to the Cyber Security Law, network operators must not, without users’ consent, collect their personal information, and may only collect users’ personal information necessary to provide their services. Providers are also obliged to provide security maintenance for their products and services and shall comply with provisions regarding the protection of personal information as stipulated under the relevant laws and regulations.
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The Civil Code of the PRC (issued by the PRC National People’s Congress on May 28, 2020 and effective from January 1, 2021) provides legal basis for privacy and personal information infringement claims under the Chinese civil laws. PRC regulators, including the CAC, the Ministry of Industry and Information Technology, or MIIT, and the Ministry of Public Security, have been increasingly focused on regulation in data security and data protection.
The PRC regulatory requirements regarding cybersecurity are evolving. For instance, various regulatory bodies in China, including the CAC, the Ministry of Public Security and the State Administration for Market Regulation, or the SAMR (formerly known as State Administration for Industry and Commerce, or the SAIC), have enforced data privacy and protection laws and regulations with varying and evolving standards and interpretations. In April 2020, the Chinese government promulgated Cybersecurity Review Measures, which came into effect on June 1, 2020, was amended on December 28, 2021, and became effective on February 15, 2022. According to the Cybersecurity Review Measures, (i) operators of critical information infrastructure must pass a cybersecurity review when purchasing network products and services which do or may affect national security; (ii) online platform operators who are engaged in data processing are also subject to the regulatory scope; (iii) the CSRC is included as one of the regulatory authorities for purposes of jointly establishing the state cybersecurity review working mechanism; (iv) online platform operators holding more than one million users/users’ individual information and seeking a listing outside China shall file for cybersecurity review; and (v) the risks of core data, material data or large amounts of personal information being stolen, leaked, destroyed, damaged, illegally used or illegally transmitted to overseas parties and the risks of critical information infrastructure, core data, material data or large amounts of personal information being influenced, controlled or used maliciously shall be collectively taken into consideration during the cybersecurity review process.
Certain internet platforms in China have been reportedly subject to heightened regulatory scrutiny in relation to cybersecurity matters. As of the date of this prospectus supplement, we and our PRC subsidiaries have not been informed by any PRC governmental authority of any requirement that we file for a cybersecurity review. However, if any of us is deemed to be a critical information infrastructure operator or a company that is engaged in data processing and holds personal information of more than one million users, we could be subject to PRC cybersecurity review.
As of the date hereof, we are of the view that we and our PRC subsidiaries are in compliance with the applicable PRC laws and regulations governing the data privacy and personal information in all material respects, including the data privacy and personal information requirements of the CAC, and we and our PRC subsidiaries have not received any complaints from any third party, or been investigated or punished by any PRC competent authority in relation to data privacy and personal information protection. However, as there remains significant uncertainty in the interpretation and enforcement of relevant PRC cybersecurity laws and regulations, we or our PRC subsidiaries could be subject to cybersecurity review, and if so, we may not be able to pass such review. In addition, we or our PRC subsidiaries could become subject to enhanced cybersecurity review or investigations launched by PRC regulators in the future. Any failure or delay in the completion of the cybersecurity review procedures or any other non-compliance with the related laws and regulations may result in fines or other penalties, including suspension of business, website closure, removal of our app from the relevant app stores, and revocation of prerequisite licenses, as well as reputational damage or legal proceedings or actions against us, which may have material adverse effect on our business, financial condition or results of operations.
On June 10, 2021, the SCNPC promulgated the PRC Data Security Law, which took effect in September 2021. The PRC Data Security Law imposes data security and privacy obligations on entities and individuals carrying out data activities, and introduces a data classification and hierarchical protection system based on the importance of data in economic and social development, and the degree of harm it will cause to national security, public interests, or legitimate rights and interests of individuals or organizations when such data is tampered with, destroyed, leaked, illegally acquired or used. The PRC Data Security Law also provides for a national security review procedure for data activities that may affect national security and imposes export restrictions on certain data an information.
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As uncertainties remain regarding the interpretation and implementation of these laws and regulations, we cannot assure you that we and our PRC subsidiaries will comply with such regulations in all respects and we or our PRC subsidiaries may be ordered to rectify or terminate any actions that are deemed illegal by regulatory authorities. We or our PRC subsidiaries may also become subject to fines and/or other sanctions which may have material adverse effect on our business, operations and financial condition.
While we and our PRC subsidiaries take various measures to comply with all applicable data privacy and protection laws and regulations, the current security measures and those of our third-party service providers may not always be adequate for the protection of our customer, employee or company data. We or our PRC subsidiaries may be a target for computer hackers, foreign governments or cyber terrorists in the future.
Unauthorized access to our proprietary internal and customer data may be obtained through break-ins, sabotage, breach of our secure network by an unauthorized party, computer viruses, computer denial-of-service attacks, employee theft or misuse, breach of the security of the networks of our third-party service providers, or other misconduct. Because the techniques used by computer programmers who may attempt to penetrate and sabotage our proprietary internal and customer data change frequently and may not be recognized until launched against a target, we may be unable to anticipate these techniques.
Unauthorized access to our proprietary internal and customer data may also be obtained through inadequate use of security controls. Any of such incidents may harm our reputation and adversely affect our business and results of operations. In addition, we may be subject to negative publicity about our security and privacy policies, systems, or measurements. Any failure to prevent or mitigate security breaches, cyber-attacks or other unauthorized access to our systems or disclosure of our customers’ data, including their personal information, could result in loss or misuse of such data, interruptions to our service system, diminished customer experience, loss of customer confidence and trust, impairment of our technology infrastructure, and harm our reputation and business, resulting in significant legal and financial exposure and potential lawsuits.
We are dependent on the state of the PRC’s economy and a general economic downturn, a recession or a sudden disruption in business conditions in the PRC would have a material adverse effect on our business, financial condition and results of operations.
Significant slowdowns in the PRC economy may cause our customers to reduce expenditures on our products. This may in turn lead to a decline in the demand for the services we provide. Any such decline would have a material adverse effect on our business, financial condition and results of operations. Consumer spending is generally affected by a number of factors, including general economic conditions, the level of unemployment, inflation, interest rates, energy costs, gasoline prices and consumer confidence generally, all of which are beyond our control. Consumer purchases of discretionary items tend to decline during recessionary periods, when disposable income is lower, and may impact sales of our services. In addition, sudden disruption in business conditions as a result of a terrorist attack, retaliation and the threat of further attacks or retaliation, war, adverse weather conditions and climate changes or other natural disasters, pandemic situations or large scale power outages can have a short or, sometimes, long-term impact on consumer spending. A downturn in the economy in the PRC, including any recession or a sudden disruption of business conditions in the PRC, could adversely affect our business, financial condition or results of operation.
Since our operations and assets are located in the PRC, shareholders may find it difficult to enforce a U.S. judgment against the assets of our company, our directors and executive officers.
Our operations and assets are located in the PRC. In addition, most of our executive officers and directors are non-residents of the U.S., and substantially all the assets of such persons are located outside the U.S. As a result, it could be difficult for investors to effect service of process in the U.S., or to enforce a judgment obtained in the U.S. against us or any of these persons.
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We may be subject to PRC regulatory limitations on merger and acquisition (M&A) activities.
Foreign enterprises that engage in M&A activities inside and outside China are subject to different regulatory limitations under Chinese laws and regulations. The key regulations governing such activities within PRC are Wholly Foreign-Owned Enterprise Law, the Interim Provisions on the Domestic Investment of Foreign-Funded Enterprise, the Catalogue for the Guidance of Foreign Investment Industries (amended in 2017) and other relevant Chinese laws and regulations. Under these laws and regulations, conducting M&A in China requires that Qingdao Tiandihui Foodstuffs Co., Ltd. and Qingdao Tiandihui Pet Foodstuffs Co., Ltd are wholly foreign-owned enterprises “WFOE” be profitable, and a timely application with and approval by of local regulatory agencies of any proposed M&A transaction. The M&A activities outside the PRC are governed by several rules and regulations, including PRC Administrative Measures on Offshore Investment, the Regulation on Foreign Exchange Administration of the PRC, the Notice of the State Administration of Foreign Exchange on Issuing the Provisions on the Foreign Exchange Administration of the Overseas Direct Investment of Domestic Institutions, the Circular on Relevant Issues Concerning Foreign Exchange Control on Domestic Resident’s Financing and Round-trip Investment Through Offshore Special Purpose Vehicles. Under these laws and regulations, our WFOE must get approval from the PRC Ministry of Commerce or its branch offices for any proposed offshore M&A transaction, and complete its foreign exchange registration. We cannot offer any assurance that in the event we seek such approvals or registrations we will be able to secure them in a timely fashion or will be able to receive them at all; negative feedback from the regulatory agencies or our failure to register such proposed transactions may have material adverse impact on our business expansion and could materially affect our business operation and finance condition. In addition, since approval and/or registration procedures required time to complete, these processes may cause additional delays to our onshore or offshore M&A projects, which, in turn, may have adverse impact on our business and operations.
Fluctuation of the Renminbi may indirectly affect our financial condition by affecting the volume of cross-border money flow.
The value of the RMB fluctuates and is subject to changes in the PRC’s political and economic conditions. We do not currently engage in hedging activities to protect against foreign currency risks. Even if we choose to engage in such hedging activities, we may not be able to do so effectively. Future movements in the exchange rate of the RMB could adversely affect our financial condition as we may suffer financial losses when transferring money raised outside of China into the country or paying vendors for services performed outside of China. The value of the Renminbi against the U.S. dollar and other currencies may fluctuate and is affected by, among other things, changes in political and economic conditions. On July 21, 2005, the PRC government changed its decade-old policy of pegging the value of the Renminbi to the U.S. dollar. Under the new policy, the Renminbi is permitted to fluctuate within a narrow and managed band against a basket of certain foreign currencies. This change in policy has resulted in an appreciation of the Renminbi against the U.S. dollar. While the international reaction to the Renminbi revaluation has generally been positive, there remains international pressure on the PRC government to adopt an even more flexible currency policy, which could result in a further and more rapid appreciation of the Renminbi against the U.S. dollar. Any material revaluation of Renminbi may materially and adversely affect our cash flows, revenues, earnings and financial position, and the value of, and any dividends payable on, our common shares in U.S. dollars. For example, an appreciation of Renminbi against the U.S. dollar would make any new Renminbi denominated investments or expenditures more costly to us, to the extent that we need to convert U.S. dollars into Renminbi for such purposes.
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If any dividend is declared in the future and paid in a foreign currency, you may be taxed on a larger amount in U.S. dollars than the U.S. dollar amount that you will actually ultimately receive.
If you are a United States holder, you will be taxed on the U.S. dollar value of your dividends, if any, at the time you receive them, even if you actually receive a smaller amount of U.S. dollars when the payment is in fact converted into U.S. dollars. Specifically, if a dividend is declared and paid in a foreign currency, the amount of the dividend distribution that you must include in your income as a U.S. holder will be the U.S. dollar value of the payments made in the foreign currency, determined at the spot rate of the foreign currency to the U.S. dollar on the date the dividend distribution is includible in your income, regardless of whether the payment is in fact converted into U.S. dollars. Thus, if the value of the foreign currency decreases before you actually convert the currency into U.S. dollars, you will be taxed on a larger amount in U.S. dollars than the U.S. dollar amount that you will actually ultimately receive.
We may become a passive foreign investment company, which could result in adverse U.S. tax consequences to U.S. investors.
Based on the nature of our business activities, we may be classified as a passive foreign investment company (“PFIC”), by the U.S. Internal Revenue Service (“IRS”), for U.S. federal income tax purposes. Such characterization could result in adverse U.S. tax consequences to you if you are a U.S. investor. For example, if we are a PFIC, a U.S. investor will become subject to burdensome reporting requirements. The determination of whether or not we are a PFIC is made on an annual basis and will depend on the composition of our income and assets from time to time. Specifically, we will be classified as a PFIC for U.S. tax purposes if either:
| ● | 75% or more of our gross income in a taxable year is passive income; or |
| ● | the average percentage of our assets by value in a taxable year that produce or are held for the production of passive income (which includes cash) is at least 50%. |
The calculation of the value of our assets is based, in part, on the then market value of our common shares, which is subject to change. We cannot assure that we will not be a PFIC for any taxable year.
Introduction of new laws or changes to existing laws by the PRC government may adversely affect our business.
The PRC legal system is a codified legal system made up of written laws, regulations, circulars, administrative directives and internal guidelines. Unlike common law jurisdictions such as the U.S., decided cases (which may be taken as reference) do not form part of the legal structure of the PRC and thus have no binding effect. Furthermore, in line with its transformation from a centrally planned economy to a more market-oriented economy, the PRC government is still in the process of developing a comprehensive set of laws and regulations. As the legal system in the PRC is still evolving, laws and regulations or their interpretation may be subject to further changes. Such uncertainty and prospective changes to the PRC legal system could adversely affect our results of operations and financial condition.
Governmental control of currency conversion may affect the value of your investment.
The PRC government imposes controls on the convertibility of the Renminbi into foreign currencies and, in certain cases, the remittance of currency out of the PRC, which may take as long as six months in the ordinary course. We receive the majority of our revenues in Renminbi. Under our current corporate structure, our income is derived from payments from WFOE. The October 8, 2016 Provisional Measures for Filling Administration of Establishment and Changes of Foreign-Investment Enterprise (the “Establishment and Changes Provision”) promulgated by the PRC Ministry of Commerce and was amended on July 30, 2017, regulates the recordation procedures with respect to the establishment and changes of a foreign-invested enterprise which do not fall within the scope of special administration measures for foreign investment admission as stipulated by the state; for those entities that do fall within the regulatory reach of special administration measures must go through approval procedures according to relevant laws and regulations governing foreign investment. We do not believe that such measures will have any impact on our income derived from payment from our WFOE because:
| ● | As a pet food producer and seller, we do not fall within the scope of special access administrative measures for foreign investment admission as stipulated by the state, and therefore are not required to go through approval procedures. |
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| ● | The Establishment and Changes Provision regulates the recordation procedures relating to the establishment and changes of a foreign-invested enterprise, which including but not limited to: (i) the changes of company name, registered address, duration of operation, business scope, registered capital, total investment, shareholders, merger, division and termination of the enterprise; and (ii) the corporate name change, domicile or place of incorporation, subscribed capital, investment period. Based on the foregoing and our current corporate structure, our income is derived from payment from our WFOE, but the Establishment and Changes Provisions do not regulate our origin of income or dividend policy, and therefore will not have any impact on our dividend distribution. |
Shortages in the availability of foreign currency may restrict the ability of WFOE to remit sufficient foreign currency to pay dividends or other payments to us, or otherwise satisfy their foreign currency denominated obligations. Under existing PRC foreign exchange regulations, payments of current account items, including profit distributions, interest payments and expenditures from trade-related transactions, can be made in foreign currencies without prior approval from the PRC SAFE by complying with certain procedural requirements. However, approval from appropriate PRC government authorities is required where Renminbi is to be converted into foreign currency and remitted out of China to pay capital expenses such as the repayment of bank loans denominated in foreign currencies. The PRC government may also at its discretion restrict access in the future to foreign currencies for current account transactions. If the foreign exchange control system prevents us from obtaining sufficient foreign currency to satisfy our currency demands, we may not be able to pay dividends in foreign currencies to our shareholders.
PRC’s labor law restricts our ability to reduce our workforce in the PRC in the event of an economic downturn and may increase our production costs.
In June 2007, the National People’s Congress of the PRC enacted new labor law legislation called the Labor Contract Law, which became effective on January 1, 2008 and was amended on December 28, 2012, to clarify certain details in connection with the implementation of the Labor Contract Law, the PRC State Council promulgated the Implementing Rules for the Labor Contract Law on September 18, 2008, which came into effect immediately (collectively as “new laws”). The legislation formalized workers’ rights concerning overtime hours, pensions, layoffs, employment contracts and the role of trade unions. Considered one of the strictest labor laws in the world, among other things, these new laws provide for specific standards and procedures for the termination of an employment contract and places the burden of proof on the employer. In addition, the new laws require the payment of a statutory severance pay upon the termination of an employment contract in most cases, including the case of the expiration of a fixed-term employment contract. Further, the new laws require an employer to conclude an “employment contract without a fixed-term” with any employee who either has worked for the same employer for 10 consecutive years or more or has had two consecutive fixed-term contracts with the same employer. An “employment contract without a fixed term” can no longer be terminated on the ground of the expiration of the contract, although it can still be terminated pursuant to the standards and procedures set forth under the new laws. Because of the lack of precedent for the enforcement of such a law, the standards and procedures set forth under the new laws in relation to the termination of an employment contract have raised concerns among foreign investment enterprises in the PRC that such an “employment contract without a fixed term” might in fact become a “lifetime, permanent employment contract.” Finally, under the new laws, downsizing of either more than 20 people or more than 10% of the workforce may occur only under specified circumstances, such as a restructuring undertaken pursuant to the PRC’s Enterprise Bankruptcy Law, or where a company suffers serious difficulties in production and/or business operations, or where there has been a material change in the objective economic circumstances relied upon by the parties at the time of the conclusion of the employment contract, thereby making the performance of such employment contract not possible. To date, there has been very little guidance or precedent as to how such specified circumstances for downsizing will be interpreted and enforced by the relevant PRC authorities. All of our employees working for us exclusively within the PRC are covered by the new laws and thus, our ability to adjust the size of our operations when necessary in periods of recession or less severe economic downturns may be curtailed. Accordingly, if we face future periods of decline in business activity generally or adverse economic periods specific to our business, these new laws can be expected to exacerbate the adverse effect of the economic environment on our results of operations and financial condition.
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Changes in PRC’s political and economic policies could harm our business.
Our results of operations, financial condition and prospects are subject to economic, political and legal developments in the PRC. China’s economy differs from the economies of most developed countries in many respects, including with respect to the amount of government involvement, level of development, growth rate, and control of foreign exchange and allocation of resources. The PRC economy has historically been a planned economy subject to governmental plans and quotas and has, in certain aspects, been transitioning to a more market-oriented economy. Although we believe that the economic reform and the macroeconomic measures adopted by the PRC government have had a positive effect on the economic development of PRC, we cannot predict the future direction of these economic reforms or the effects these measures may have on our business, financial position or results of operations. In addition, the PRC economy differs from the economies of most countries belonging to the Organization for Economic Cooperation and Development (“OECD”). These differences include, without limitation:
| ● | economic structure; |
| ● | level of government involvement in the economy; |
| ● | level of development; |
| ● | level of capital reinvestment; |
| ● | control of foreign exchange; |
| ● | methods of allocating resources; and |
| ● | balance of payments position. |
As a result of these differences, our business may not develop in the same way or at the same rate as might be expected if the PRC economy were similar to those of the OECD member countries. Since 1979, the Chinese government has promulgated many new laws and regulations covering general economic matters. Despite these efforts to develop a legal system, the PRC’s system of laws is not yet complete. Even where adequate law exists in the PRC, enforcement of existing laws or contracts based on existing law may be uncertain or sporadic, and it may be difficult to obtain swift and equitable enforcement or to obtain enforcement of a judgment by a court of another jurisdiction. The relative inexperience of the PRC’s judiciary, in many cases, creates additional uncertainty as to the outcome of any lawsuit. In addition, interpretation of statutes and regulations may be subject to government policies reflecting domestic political changes. Our activities in the PRC will also be subject to administration review and approval by various national and local agencies of the PRC’s government. Because of the changes occurring in the PRC’s legal and regulatory structure, we may not be able to secure the requisite governmental approval for our activities. Although we have obtained all required governmental approvals to operate our business as currently conducted, to the extent we are unable to obtain or maintain required governmental approvals, the PRC government may, in its sole discretion, prohibit us from conducting our business.
If relations between the United States and China worsen, our share price may decrease and we may have difficulty accessing U.S. capital markets.
At various times during recent years, the United States and China have had disagreements over political and economic issues. Controversies may arise in the future between these two countries. Any political or trade controversy between the United States and China could adversely affect the market price of our common shares and our ability to access U.S. capital markets.
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The Chinese government could change its policies toward private enterprise or even nationalize or expropriate private enterprises, which could result in the total loss of our investment in that country.
Our business is subject to political and economic uncertainties and may be adversely affected by political, economic and social developments in the PRC. Over the past several years, the PRC government has pursued economic reform policies including the encouragement of private economic activity and greater economic decentralization. The PRC government may not continue to pursue these policies or may alter them to our detriment from time to time with little, if any, prior notice. Changes in policies, laws and regulations or in their interpretation or the imposition of confiscatory taxation, restrictions on currency conversion, restrictions or prohibitions on dividend payments to shareholders, devaluations of currency or the nationalization or other expropriation of private enterprises could have a material adverse effect on our business. Nationalization or expropriation could even result in the total loss of our investment in the PRC and in the total loss of any investment in us.
Because our operations are located in the PRC, information about our operations is not readily available from independent third-party sources.
Our shareholders may have greater difficulty in obtaining information about them on a timely basis than would shareholders of a U.S.-based company. Their operations will continue to be conducted in the PRC and shareholders may have difficulty in obtaining information about them from sources other than the companies themselves. Information available from newspapers, trade journals, or local, regional or national regulatory agencies such as issuance of construction permits and contract awards for development projects will not be readily available to shareholders and, where available, will likely be available only in Chinese. Shareholders will be dependent upon management for reports of their progress, development, activities and expenditure of proceeds.
Risks Related to the Ownership of Our Common Shares
We are a holding company incorporated in the British Virgin Islands. As a holding company with no material operations of our own, we conduct a substantial majority of our operations through our subsidiaries established in the PRC.
Investors in our common shares should be aware that they may never directly hold equity interests in our subsidiaries, but rather purchasing equity solely in TDH Holdings, Inc. our British Virgin Islands holding company, which does not directly own substantially all of our business in China and conducted by our PRC subsidiaries. Our Common shares are shares in TDH Holdings, Inc., a BVI holding company instead of shares of our subsidiaries in China. This structure is subject to certain legal and operational risks associated with our subsidiaries’ operations in China, including changes in the legal, political and economic policies of the Chinese government, the relations between China and the United States, Chinese or United States regulations, all of which may materially and adversely affect our business, financial condition and results of operations and/or the value of our Common Shares or could significantly decline or become worthless.
Recent joint statement by the SEC and PCAOB, proposed rule changes submitted by Nasdaq, and an act passed by the U.S. Senate all call for additional and more stringent criteria to be applied to emerging market companies upon assessing the qualification of their auditors, especially the non-U.S. auditors who are not inspected by the PCAOB. These developments could add uncertainties to our listing.
In May 2013, the PCAOB announced that it had entered into a Memorandum of Understanding on Enforcement Cooperation with the CSRC, and the PRC Ministry of Finance, which establishes a cooperative framework between the parties for the production and exchange of audit documents relevant to investigations undertaken by the PCAOB, the CSRC or the PRC Ministry of Finance in the United States and the PRC, respectively. The PCAOB continues to be in discussions with the CSRC, and the PRC Ministry of Finance to permit joint inspections in the PRC of audit firms that are registered with PCAOB and audit Chinese companies that trade on U.S. exchanges.
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On December 7, 2018, the SEC and the PCAOB issued a joint statement highlighting continued challenges faced by the U.S. regulators in their oversight of financial statement audits of U.S.-listed companies with significant operations in China. The joint statement reflects a heightened interest in an issue that has vexed U.S. regulators in recent years.
On April 21, 2020, SEC Chairman Jay Clayton and PCAOB Chairman William D. Duhnke III, along with other senior SEC staff, released a joint statement highlighting the risks associated with investing in companies based in or have substantial operations in emerging markets including China. The joint statement emphasized the risks associated with lack of access for the PCAOB to inspect auditors and audit work papers in China and higher risks of fraud in emerging markets.
On June 4, 2020, the U.S. President issued a memorandum ordering the President’s Working Group on Financial Markets, or the PWG, to submit a report to the President within 60 days of the memorandum that includes recommendations for actions that can be taken by the executive branch and by the SEC or PCAOB on Chinese companies listed on U.S. stock exchanges and their audit firms, in an effort to protect investors in the U.S.
On August 6, 2020, the PWG released a report recommending that the SEC take steps to implement the five recommendations outlined in the report. In particular, to address companies from jurisdictions that do not provide the PCAOB with sufficient access to fulfill its statutory mandate, or NCJs, the PWG recommends enhanced listing standards on U.S. stock exchanges. This would require, as a condition to initial and continued exchange listing, PCAOB access to work papers of the principal audit firm for the audit of the listed company. Companies unable to satisfy this standard as a result of governmental restrictions on access to audit work papers and practices in NCJs may satisfy this standard by providing a co-audit from an audit firm with comparable resources and experience where the PCAOB determines it has sufficient access to audit work papers and practices to conduct an appropriate inspection of the co-audit firm. There is currently no legal process under which such a co-audit may be performed in China. The report permits the new listing standards to provide for a transition period until January 1, 2022 for listed companies, but would apply immediately to new listings once the necessary rulemakings and/or standard-setting are effective. The measures in the PWG Report are presumably subject to the standard SEC rulemaking process before becoming effective. On August 10, 2020, the SEC announced that SEC Chairman had directed the SEC staff to prepare proposals in response to the PWG Report, and that the SEC was soliciting public comments and information with respect to these proposals.
On March 24, 2021, the SEC announced that it had adopted interim final amendments to implement congressionally mandated submission and disclosure requirements of the Act. The interim final amendments will apply to registrants that the SEC identifies as having filed an annual report on Forms 10-K, 20-F, 40-F or N-CSR with an audit report issued by a registered public accounting firm that is located in a foreign jurisdiction and that the PCAOB has determined it is unable to inspect or investigate completely because of a position taken by an authority in that jurisdiction. The SEC will implement a process for identifying such a registrant and any such identified registrant will be required to submit documentation to the SEC establishing that it is not owned or controlled by a governmental entity in that foreign jurisdiction, and will also require disclosure in the registrant’s annual report regarding the audit arrangements of, and governmental influence on, such a registrant.
Furthermore, the Holding Foreign Companies Accountable Act (“HFCA Act”), which requires that the PCAOB be permitted to inspect the issuer’s public accounting firm within three years, may result in the delisting of our Company in the future if the PCAOB is unable to inspect our accounting firm at such future time.
In addition, on June 22, 2021, the U.S. Senate passed the Accelerating Holding Foreign Companies Accountable Act (“AHFCAA”), which, if signed into law, would amend the HFCA Act and require the SEC to prohibit an issuer’s securities from trading on any U.S. stock exchanges if its auditor is not subject to PCAOB inspections for two consecutive years instead of three consecutive years.
On November 5, 2021, the SEC approved the PCAOB’s Rule 6100, Board Determinations Under the Holding Foreign Companies Accountable Act. Rule 6100 provides a framework for the PCAOB to use when determining, as contemplated under the HFCA Act, whether it is unable to inspect or investigate completely registered public accounting firms located in a foreign jurisdiction because of a position taken by one or more authorities in that jurisdiction. On December 16, 2021, the PCAOB issued a Determination Report which found that the PCAOB is unable to inspect or investigate completely registered public accounting firms headquartered in: (1) mainland China, and (2) Hong Kong. The lack of access to the PCAOB inspection in China prevents the PCAOB from fully evaluating audits and quality control procedures of the auditors based in China. As a result, the investors may be deprived of the benefits of such PCAOB inspections. The inability of the PCAOB to conduct inspections of auditors in China makes it more difficult to evaluate the effectiveness of these accounting firms’ audit procedures or quality control procedures as compared to auditors outside of China that are subject to the PCAOB inspections, which could cause existing and potential investors in our stock to lose confidence in our audit procedures and reported financial information and the quality of our financial statements. Our auditor is headquartered in California and is not subject to this determination announced by the PCAOB.
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Our auditor, the independent registered public accounting firm that issues the audit report for the year ended December 31, 2021 included elsewhere in this annual report, as an auditor of companies that are traded publicly in the United States and a firm registered with the PCAOB, is subject to laws in the United States pursuant to which the PCAOB conducts regular inspections to assess its compliance with the applicable professional standards. Our auditor is headquartered in Irvine, California and has not been inspected by the PCAOB, but according to our auditor, it will be inspected by the PCAOB on a regular basis. In the event that, in the future, either there is any regulatory change or step taken by PRC regulators that does not permit YCM CPA Inc. to provide audit documentations located in China or Hong Kong to the PCAOB for inspection or investigation, or the PCAOB expands the scope of the determinations so that our PRC operating entities will be subject to the HFCA Act, as the same may be amended, you may be deprived of the benefits of such inspection which could result in limitation or restriction to our access to the U.S. capital markets and trading of our securities, including “over-the-counter” trading, may be prohibited, under the HFCA Act. The recent developments would add uncertainties to our listing and we cannot assure you whether Nasdaq Capital Market or regulatory authorities would apply additional and more stringent criteria to us after considering the effectiveness of our auditor’s audit procedures and quality control procedures, adequacy of personnel and training, or sufficiency of resources, geographic reach, or experience as it relates to our audit.
The Holding Foreign Companies Accountable Act all call for additional and more stringent criteria to be applied to emerging market companies upon assessing the qualification of their auditors, especially the non-U.S. auditors who are not inspected by the PCAOB. These developments could add uncertainties to our continued listing.
On May 20, 2020, the U.S. Senate passed the HFCA Act requiring a foreign company to certify it is not owned or controlled by a foreign government if the PCAOB is unable to audit specified reports because the company uses a foreign auditor not subject to PCAOB inspection. If the PCAOB is unable to inspect the company’s auditors for three consecutive years, the issuer’s securities are prohibited to trade on a national exchange. On December 2, 2020, the U.S. House of Representatives approved the HFCA Act. On December 18, 2020, the HFCA Act was signed into law. On March 24, 2021, the SEC adopted interim final rules relating to the implementation of certain disclosure and documentation requirements of the HFCA Act. A company will be required to comply with these rules if the SEC identifies it as having a “non-inspection” year under a process to be subsequently established by the SEC. The SEC is assessing how to implement other requirements of the HFCA Act, including the listing and trading prohibition requirements described above. Furthermore, on June 22, 2021, the U.S. Senate passed the AHFCAA, which, if signed into law, would amend the HFCA Act and require the SEC to prohibit an issuer’s securities from trading on any U.S. stock exchanges if its auditor is not subject to PCAOB inspections for two consecutive years instead of three consecutive years. On September 22, 2021, the PCAOB adopted a final rule implementing the HFCAA, which provides a framework for the PCAOB to use when determining, as contemplated under the HFCA Act, whether the PCAOB is unable to inspect or investigate completely registered public accounting firms located in a foreign jurisdiction because of a position taken by one or more authorities in that jurisdiction. Furthermore, on June 22, 2021, the U.S. Senate passed the AHFCAA, which, if signed into law, would amend the HFCA Act and require the SEC to prohibit an issuer’s securities from trading on any U.S. stock exchanges if its auditor is not subject to PCAOB inspections for two consecutive years instead of three consecutive years. On December 16, 2021, the PCAOB issued a Determination Report which found that the PCAOB is unable to inspect or investigate completely registered public accounting firms headquartered in: (1) mainland China and (2) Hong Kong. Our auditor is headquartered in California and is not subject to this determination announced by the PCAOB.
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Our auditor, the independent registered public accounting firm that issues the audit report for the year ended December 31, 2021 included elsewhere in this annual report, as an auditor of companies that are traded publicly in the United States and a firm registered with the PCAOB, is subject to laws in the United States pursuant to which the PCAOB conducts regular inspections to assess its compliance with the applicable professional standards. Our auditor is headquartered in California and has not been inspected by the PCAOB, but according to our auditor, it will be inspected by the PCAOB on a regular basis.
The recent developments would add uncertainties to our listing and we cannot assure you whether the Nasdaq Capital Market or regulatory authorities would apply additional and more stringent criteria to us after considering the effectiveness of our auditor’s audit procedures and quality control procedures, adequacy of personnel and training, or sufficiency of resources, geographic reach, or experience as it relates to our audit. Furthermore, the HFCA Act, which requires that the PCAOB be permitted to inspect the issuer’s public accounting firm within three years, may result in the delisting of our Company in the future if the PCAOB is unable to inspect our accounting firm at such future time.
Our management team has limited experience in managing a U.S. public company and complying with laws applicable to such company, the failure of which may adversely affect our business, financial conditions and results of operations.
Our current management team has limited experience in managing a U.S. publicly traded company, interacting with public company investors and complying with the increasingly complex laws pertaining to U.S. public companies. Prior to the completion of our initial public offering, we mainly operated our businesses as a private company in the PRC. As a result of our IPO, our company became subject to significant regulatory oversight and reporting obligations under the federal securities laws and the scrutiny of securities analysts and investors, and our management currently has no experience in complying with such laws, regulations and obligations. Our management team may not successfully or efficiently manage our transition to becoming a U.S. public company. These new obligations and constituents will require significant attention from our senior management and could divert their attention away from the day-to-day management of our business, which could adversely affect our business, financial conditions and results of operations.
We are an “emerging growth company” and we cannot be certain if the reduced disclosure requirements applicable to “emerging growth companies” will make our shares less attractive to investors.
We are an “emerging growth company,” as defined in the JOBS Act, and we may take advantage of certain exemptions and relief from various reporting requirements that are applicable to other public companies that are not “emerging growth companies.” In particular, while we are an “emerging growth company” (1) we will not be required to comply with the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act, (2) we will be exempt from any rules that may be adopted by the PCAOB requiring mandatory audit firm rotations or a supplement to the auditor’s report on financial statements, (3) we will be subject to reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements and (4) we will not be required to hold nonbinding advisory votes on executive compensation or stockholder approval of any golden parachute payments not previously approved. We currently intend to take advantage of the reduced disclosure requirements regarding executive compensation. If we remain an “emerging growth company” after fiscal 2017, we may take advantage of other exemptions, including the exemptions from the advisory vote requirements and executive compensation disclosures under the Dodd-Frank Wall Street Reform and Customer Protection Act, or the Dodd-Frank Act, and the exemption from the provisions of Section 404(b) of the Sarbanes-Oxley Act. 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 for complying with new or revised accounting standards, meaning that the company can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have irrevocably elected not to avail ourselves of this exemption from new or revised accounting standards and, therefore, will be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies. We may remain an “emerging growth company” until the fiscal year-end following the fifth anniversary of the completion of our initial public offering, though we may cease to be an “emerging growth company” earlier under certain circumstances, including (1) if we become a large accelerated filer, (2) if our gross revenue exceeds $1.07 billion in any fiscal year or (3) if we issue more than $1.0 billion in non-convertible notes in any three year period. The exact implications of the JOBS Act are still subject to interpretations and guidance by the SEC and other regulatory agencies, and we cannot assure you that we will be able to take advantage of all of the benefits of the JOBS Act. In addition, investors may find our shares less attractive if we rely on the exemptions and relief granted by the JOBS Act. If some investors find our shares less attractive as a result, there may be a less active trading market for our shares and our stock price may decline and/or become more volatile.
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If our financial condition deteriorates as a NASDAQ listed company, we may not meet continued listing standards on the NASDAQ Capital Market.
On October 29, 2019, the Company received Nasdaq confirmation of the Company’s regaining technical compliance with the minimum stockholders’ equity rule and with other applicable requirements as set forth in the Panel’s decision following an oral hearing in August 2019. In connection with this confirmation, the Nasdaq Panel imposes a Panel Monitor under Listing Rule 5815(d)(4)(A) until October 30, 2020 for the purposes of monitoring the Company’s continued compliance with the stockholders’ equity requirement. The decision provided that if and to the extent the Company’s stockholders’ equity fell below $2.5 million and the Company did not qualify for listing under an alternative to the stockholders’ equity rule, the Panel (or a newly convened Panel if the initial Panel is unavailable) would promptly conduct a hearing with respect to this deficiency, and the Company’s securities could be delisted from Nasdaq. During the monitoring period, the Company was obligated to notify the Panel, in writing, in the event its stockholders’ equity fell below $2.5 million for any reason, or if the Company otherwise fell out of compliance with any other applicable listing requirement. In the event that the Company failed to comply with any other requirement for continued listing during the monitoring period, the Company would have been provided written notice of the deficiency and an opportunity to present a definitive plan to regain compliance to the Panel. The Panel would thereafter render a determination with respect to the Company’s continued listing on Nasdaq. On November 12, 2020, the Company, was informed that, following a 12-month compliance monitoring period under a Panel Monitor pursuant to a Compliance with Monitor letter dated October 29, 2019, the Company was currently in compliance with applicable Nasdaq Listing Rules, and the Panel has determined to continue the listing of the Company’s securities on The Nasdaq Stock Market. On February 23, 2022, the Company received a notification letter from Nasdaq Listing Qualifications advising the Company that based upon the closing bid price for the Company’s common shares for the past 30 consecutive business days, the Company no longer met the minimum $1.00 per share Nasdaq continued listing requirement set forth in Nasdaq Listing Rule 5550(a)(2). The notification also stated that the Company would be provided 180 calendar days, or until August 22, 2022, to regain compliance with the foregoing listing requirement. To do so, the bid price of the Company’s common stock must close at or above $1.00 per share for a minimum of 10 consecutive business days prior to that date.
If the Company does not regain compliance by the compliance deadline, the Company may be eligible for additional time to regain compliance. To qualify, the Company will be required to meet the continued listing requirement for market value of publicly held shares and all other initial listing standards for The Nasdaq Capital Market, with the exception of the bid price requirement, and will need to provide written notice of its intention to cure the deficiency during the second compliance period, by effecting a reverse stock split, if necessary. If the Company meets these requirements, the Nasdaq staff will inform the Company that it has been granted an additional 180 calendar days. However, if it appears to the Nasdaq staff that the Company will not be able to cure the deficiency, or if the Company is otherwise not eligible, the staff will provide notice that its securities will be subject to delisting. There is no assurance that the Company will remain in compliance with the continued listing criteria. If it fails to remain in compliance its securities could be delisted. If the Company is delisted from Nasdaq, its common shares may be traded over-the-counter on the OTC Bulletin Board or in the “pink sheets” if one or more market makers seeks and obtains approval by the Financial Industry Regulatory Authority to continue quoting in the Company’s common shares.
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However, if our shares are listed on the NASDAQ Capital Market but are delisted from the NASDAQ Capital Market at some later date, our shareholders could find it difficult to sell our shares. In addition, if our common shares are delisted from the NASDAQ Capital Market at some later date, we may apply to have our common shares quoted on the Bulletin Board or in the “pink sheets” maintained by the National Quotation Bureau, Inc. The Bulletin Board and the “pink sheets” are generally considered to be less efficient markets than the NASDAQ Capital Market. In addition, if our common shares are not so listed or are delisted at some later date, our common shares may be subject to the “penny stock” regulations. These rules impose additional sales practice requirements on broker-dealers that sell low-priced securities to persons other than established customers and institutional accredited investors and require the delivery of a disclosure schedule explaining the nature and risks of the penny stock market. As a result, the ability or willingness of broker-dealers to sell or make a market in our common shares might decline. If our common shares are delisted from the NASDAQ Capital Market at some later date or become subject to the penny stock regulations, it is likely that the price of our shares would decline and that our shareholders would find it difficult to sell their shares.
We are a “foreign private issuer,” and our disclosure obligations differ from those of U.S. domestic reporting companies. As a result, we may not provide you the same information as U.S. domestic reporting companies or we may provide information at different times, which may make it more difficult for you to evaluate our performance and prospects.
We are a foreign private issuer and, as a result, we are not subject to the same requirements as U.S. domestic issuers. Under the Exchange Act, we will be subject to reporting obligations that, to some extent, are more lenient and less frequent than those of U.S. domestic reporting companies. For example, we will not be required to issue quarterly reports or proxy statements. We will not be required to disclose detailed individual executive compensation information. Furthermore, our directors and executive officers will not be required to report equity holdings under Section 16 of the Exchange Act and will not be subject to the insider short-swing profit disclosure and recovery regime. As a foreign private issuer, we will also be exempt from the requirements of Regulation FD (Fair Disclosure) which, generally, are meant to ensure that select groups of investors are not privy to specific information about an issuer before other investors. However, we will still be subject to the anti-fraud and anti-manipulation rules of the SEC, such as Rule 10b-5 under the Exchange Act. Since many of the disclosure obligations imposed on us as a foreign private issuer differ from those imposed on U.S. domestic reporting companies, you should not expect to receive the same information about us and at the same time as the information provided by U.S. domestic reporting companies.
As a relatively new public company, we incur increased costs and are subject to additional regulations and requirements, and our management is required to devote substantial time to new compliance matters, which could lower our profits or make it more difficult to run our business.
As a relatively new public company, we incur significant legal, accounting and other expenses that we have not incurred as a private company, including costs associated with public company reporting requirements and costs of recruiting and retaining non-executive directors. We also have incurred and will incur costs associated with the Sarbanes-Oxley Act and related rules implemented by the Securities and Exchange Commission, or the SEC, and NASDAQ. The expenses incurred by public companies generally for reporting and corporate governance purposes have been increasing. We expect these rules and regulations to increase our legal and financial compliance costs and to make some activities more time-consuming and costlier, although we are currently unable to estimate these costs with any degree of certainty. Our management will need to devote a substantial amount of time to ensure that we comply with all of these requirements. These laws and regulations also could make it more difficult or costly for us to obtain certain types of insurance, including director and officer liability insurance, and we may be forced to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. These laws and regulations could also make it more difficult for us to attract and retain qualified persons to serve on our Board of Directors, our board committees or as our executive officers. Furthermore, if we are unable to satisfy our obligations as a public company, we could be subject to delisting of our common shares, fines, sanctions and other regulatory action and potentially civil litigation.
The market price of shares may be volatile, which could cause the value of your investment to decline.
Worldwide market volatility, as well as general economic, market or political conditions, could reduce the market price of shares of our stock in spite of our operating performance. In addition, our results of operations could be below the expectations of public market analysts and investors due to a number of potential factors, including variations in our quarterly results of operations, additions or departures of key management personnel, failure to meet analysts’ earnings estimates, publication of research reports about our industry, litigation and government investigations, changes or proposed changes in laws or regulations or differing interpretations or enforcement thereof affecting our business, adverse market reaction to any indebtedness we may incur or securities we may issue in the future, changes in market valuations of similar companies or speculation in the press or investment community, announcements by our competitors of significant contracts, acquisitions, dispositions, strategic partnerships, joint ventures or capital commitments, adverse publicity about our industry in or individual scandals, and in response the market price of our common shares could decrease significantly. In the past few years, stock markets have experienced extreme price and volume fluctuations. In the past, following periods of volatility in the overall market and the market price of a company’s securities, securities class action litigation has often been instituted against these companies. This litigation, if instituted against us, could result in substantial costs and a diversion of our management’s attention and resources, or at all.
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As the rights of shareholders under British Virgin Islands law differ from those under U.S. law, you may have fewer protections as a shareholder.
Our corporate affairs will be governed by our memorandum and articles of association, the BVI Business Companies Act, 2004 (as amended), referred to below as the “BVI Act”, and the common law of the British Virgin Islands. The rights of shareholders to take legal action against our directors, actions by minority shareholders and the fiduciary responsibilities of our directors under British Virgin Islands law are governed by the BVI Act and the common law of the British Virgin Islands. The common law of the British Virgin Islands is derived in part from comparatively limited judicial precedent in the British Virgin Islands as well as from the common law of England and the wider Commonwealth, which has persuasive, but not binding, authority on a court in the British Virgin Islands. The rights of our shareholders and the fiduciary responsibilities of our directors under British Virgin Islands law are largely codified in the BVI Act, but are potentially not as clearly established as they would be under statutes or judicial precedents in some jurisdictions in the United States. In particular, the British Virgin Islands has a less developed body of securities laws as compared to the United States, and some states (such as Delaware) have more fully developed and judicially interpreted bodies of corporate law. As a result of all of the above, holders of our shares may have more difficulty in protecting their interests through actions against our management, directors or major shareholders than they would as shareholders of a U.S. company.
British Virgin Islands companies may not be able to initiate shareholder derivative actions, thereby depriving shareholders of the ability to protect their interests.
Shareholders of British Virgin Islands companies may not have standing to initiate a shareholder derivative action in a federal court of the United States Shareholders of a British Virgin Islands company could, however, bring a derivative action in the British Virgin Islands courts, and there is a clear statutory right to commence such derivative claims under Section 184C of the BVI Act. The circumstances in which any such action may be brought, and the procedures and defenses that may be available in respect to any such action, may result in the rights of shareholders of a British Virgin Islands company being more limited than those of shareholders of a company organized in the United States. Accordingly, shareholders may have fewer alternatives available to them if they believe that corporate wrongdoing has occurred. The British Virgin Islands courts are also unlikely to recognize or enforce against us judgments of courts in the United States based on certain liability provisions of U.S. securities law; and to impose liabilities against us, in original actions brought in the British Virgin Islands, based on certain liability provisions of U.S. securities laws that are penal in nature. There is no statutory recognition in the British Virgin Islands of judgments obtained in the United States, although the courts of the British Virgin Islands will generally recognize and enforce the non-penal judgment of a foreign court of competent jurisdiction without retrial on the merits. This means that even if shareholders were to sue us successfully, they may not be able to recover anything to make up for the losses suffered.
The laws of the British Virgin Islands may provide less protection for minority shareholders than those under U.S. law, so minority shareholders may have less recourse than they would under U.S. law if the shareholders are dissatisfied with the conduct of our affairs.
Under the laws of the British Virgin Islands, the rights of minority shareholders are protected by provisions of the BVI Act dealing with shareholder remedies and other remedies available under common law (in tort or contractual remedies). The principal protection under statutory law is that shareholders may bring an action to enforce the constitutional documents of the company (i.e. the memorandum and articles of association) as shareholders are entitled to have the affairs of the company conducted in accordance with the BVI Act and the memorandum and articles of association of the company. A shareholder may also bring an action under statute if he feels that the affairs of the company have been or will be carried out in a manner that is unfairly prejudicial or discriminating or oppressive to him. The BVI Act also provides for certain other protections for minority shareholders, including in respect of investigation of the company and inspection of the company books and records. There are also common law rights for the protection of shareholders that may be invoked, largely dependent on English common law, since the common law of the British Virgin Islands for business companies is limited.
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We may not be able to pay any dividends on our shares in the future due to British Virgin Islands law.
Under British Virgin Islands law, we may only pay dividends to our shareholders if the value of our assets exceeds our liabilities and we are able to pay our debts as they become due. We cannot give any assurance that we will declare dividends of any amounts, at any rate or at all in the future. Future dividends, if any, will be at the discretion of our board of directors, and will depend upon our results of operations, cash flows, financial condition, payment to us of cash dividends by our subsidiaries, capital needs, future prospects and other factors that our directors may deem appropriate.
ITEM 4. INFORMATION ON THE COMPANY
| A. | History and Development of the Company |
We started our company in 2002 in Qingdao, Shandong Province, PRC. Our growth has been driven by two key factors: (i) a significant increase in the number of pet owners and in the size of the pet food market in China which translated into expansion opportunities for us, and (ii) a fundamental change in Chinese society towards pets, pet ownership and care, such that the trends of pet humanization and consumer concerns for pet health and wellness have created a dynamically growing industry for pet food and products. We price our products to be accessible to the average consumer, providing us with broad demographic appeal and allowing us to penetrate multiple market segments. Founded on these building blocks, as well as on our in-depth research and development, production, and sales capabilities, we strived to be one of the leading producers of pet food in the PRC and beyond.
Overseas sales refer to overseas wholesale sales. Our overseas sales of pet food have decreased from approximately $0.2 million to 0.13 million, or by approximately 40%, from the year ended December 31, 2020 to 2021. The decrease of revenue in 2021 was mainly due to: (1) Due to the continuous development of the COVID-19, we had to close our factory again and stop production for a period of time, which caused the delay of orders. Therefore, some customers canceled their orders to the company, and the company’s sales revenue decreased greatly; (2) The purchasing cost of raw materials required for production has risen to a certain extent; (3) stop taking unprofitable orders. As a result, our pet food sales volume significantly decreased in 2021 as compared to 2020.
Domestic sales refer to domestic wholesale sales. Our domestic sales of pet food have decreased from approximately $0.6 million to 0.32 million, or by approximately 45%, from the year ended December 31, 2020 to 2021. The decrease of revenue in 2021 was mainly due to: (1) Due to the continuous development of the COVID-19, we had to close our factory again and stop production for a period of time, which caused the delay of. Therefore, some customers canceled their orders to the company, and the company’s sales revenue decreased greatly; (2) The purchasing cost of raw materials required for production has risen to a certain extent; (3) stop taking unprofitable orders. As a result, our pet food sales volume significantly decreased in 2021 as compared to 2020.
E-commerce sales, which refer to domestic electronic commerce sales, increased from $0.02 to $0.03 million from December 31, 2020 to 2021, or by approximately 107%. The reason for the increase is that we increased the promotion of our products.
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Although raw material costs of pet food increased significantly in 2021 and the industry became more competitive, the PRC pet food consumption continues to grow. Although we suffered a decrease in our pet food revenue by 40.5% or $0.33 million in 2021 as compared to 2020, and had a recurring net loss of approximately $6.72 million in 2021, in order to overcome current challenges to recover our production and normal business activities in 2022 and beyond, our business strategy is to place a significant strain on our sales and marketing capacities, administrative and operating infrastructure, manufacturing facilities and other resources. To effectively manage additional challenges brought in by the global spread of COVID-19 and maintain our growth, we also plan to evaluate and identify suitable strategic or acquisition opportunities, complete such transactions on commercially favorable terms, or successfully integrate business operations, infrastructure and management philosophies of acquired businesses and companies.
Based on current plan, if the above mentioned initiatives can be achieved, We still see significant opportunities for our future growth:
| ● | Strength and variety of our brands – we currently offer more than 200 products, including dry meat treats, pet biscuits, canned food and other products (including non-food items like dog leashes, pet toys, etc.) under multiple brands and we have successfully sold our products to consumers in the PRC, Asia and Europe over the past years and we believe our brand awareness and connection with our existing customers may help us to bring our revenue back to track in the near future if we can continue to develop new products to appeal to customers and effectively market our products to them. |
| ● | Product research & development – we believe our products are differentiated from those of our competitors in the PRC markets due to our in-depth research and development effort, our proprietary recipes, cooking and packing techniques developed over the last decade. Currently, we have been granted 20 invention and utility model patents, and have applied for 4 more patents. Although we did not have research and development spending in 2020 and 2021, looking forward, in order to diversify our product offering to meet customer demands in the future, we may incur additional R&D expenses in the coming years to maintain our competitive advantage. |
| ● | Sales and marketing distribution – we utilize domestic and overseas multi-platform sales approach to connect our production output to customers in the PRC, Asia, Europe and North America. Although we reduced sale and marketing activities in 2021 and 2020 due to our suspension of our production and operations to deal with the pending claims, lawsuits and labor arbitrations, and due to adverse COVID-19 impact up to May 2021, in order to overcome these challenges and recoer our business operations going forward, in addition to the traditional sales approach, we plan to seek opportunities to re-utilize cross-border e-commerce platforms that contribute to the future expansion of our business. |
| ● | Experienced and committed management team – our workforce is highly skilled in animal nutrition, sales and marketing. |
Our product line in excess of 200 products, including dry meat treats, pet biscuits, canned food and other products (including non-food items, e.g., dog leashes, etc.) under multiple brands in various geographical markets. Our products are available in multiple forms, including slice and serve rolls, strips, tubs, etc.
Currently, we offer 4 product lines:
| ● | Pet chews represent approximately 10.3% of our production and include various bones, rawhide and similar products, |
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| ● | Dried pet snacks represent approximately 66% of our production and include various fillets, strips and jerkies (chicken, duck, pork, lamb, etc.), |
| ● | Wet canned pet foods represent approximately 22.4% of our production and include various fillets, strips and jerkies (chicken, duck, pork, lamb, etc.), |
| ● | Dental health snacks foods account for approximately 1.3% of our production. |
These food products vary from those consisting of a single protein ingredient (e.g., duck jerky) to those consisting of a combination of protein and other ingredients (e.g., twisted cod and chicken sandwich roll that includes chicken, cod and Vitamin E). Our proprietary recipes include fresh meat (beef, chicken, fish, duck and lamb) and varying combinations of vitamin-rich vegetables and anti-oxidant rich fruits. We believe our products appeal to diverse consumer needs and resonate across a broad cross-section of pet owner demographics.
We manufacture these products at our Pude facility with 4 production lines: dried meat, chews, wet canned, and dentifrice products.
In addition, historically, we strategically partnered with a select group of contract manufacturers to supplement and enhance our production capabilities, and we plan to continue to forge partnership with selected contract manufacturers going forward. Currently, we have outsourcing agreements with multiple pet food manufacturers for the duration of up to 3 years, to secure additional production capabilities to address peak or high demand for our products. Under the terms of these agreements, our suppliers must meet all of our manufacturing requirements, including, among others, those relating to quality control, staffing, training and equipment. All manufacturing under these agreements is made in accordance with our demands, timing and specifications. These facilities are, at all times, staffed and supervised by our personnel.
As of December 31, 2021 and as of the date of this filing, we have employed 42 full-time employees at our facilities. Our daily production capacity for all of our production facilities is approximately 5.4 tons. The following is a summary description of our production facilities (not including any of the outsourcing facilities used to support our production needs):
| ● | The Pude facility maintains a production area of 30,565 sq. feet with a 20-year export processing history. We maintain ISO9001, hazard analysis critical Control Points (HACCP), British Retail Consortium (BRC) and International Characteristic Standards (IFS) certification, as well as EU and Japanese registered facilities. The daily production capacity for this facility is approximately 4.6 tons. |
| ● | The Jiaozhou facility has production area of 30,062 square feet. Our daily production capacity at this facility is approximately 0.8 ton. |
Our sales and marketing team consists of 2 integral groups – an original design manufacturer (ODM) domestic (PRC) marketing group, and an ODM overseas marketing group. We operate a B2F (business-2-factory) business model which is focused on the needs of the business market. Our model relies on our R&D strength to devise product lines to cater to this market, providing our customers with personalized and customized products. Our marketing team works in tandem with our brand promotion team which focuses on brand promotion. As a part of our ODM production process, we continuously accumulate a large amount of market information about our customers, in the PRC and abroad, which assists us in making appropriate selection of products. We utilize online sale and multi-brand, multi-store brand sale strategies. Using Tmall.com, JD.com and 1688 as our marketing platforms, our PRC marketing group has established a comprehensive network of various brand shops.
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The following chart reflects our organizational structure as of the filling date:
On August 9, 2016, Qingdao Kangkang Development Co., Ltd. (“Kangkang Development”) was incorporated in Qingdao City, Shandong Province, PRC. Kangkang Development did not have active business operations since its incorporation, and has been deregistered and dissolved in 2019.
On November 14, 2017, a 55% owned subsidiary of the Company, Yichong (Qingdao) Technology Co., Ltd. (“Yichong”) was incorporated in Qingdao City, PRC. Yichong had no active business operations since its incorporation. In September 2019, the Company transferred all its ownership interests in Yichong to a third party. As a result, Yichong was deconsolidated from the Company since September 2019 and not included in our consolidated financial statements for the year ended December 31, 2020 and 2021.
On November 29, 2017, a 55% owned subsidiary of the Company, Qingdao Lingchong Information Technology Co., Ltd. (“Lingchong”) was incorporated in Qingdao City, PRC. Lingchong had no active business operations since its incorporation. In July 2019, the Company transferred all its ownership interests in Lingchong to a third party. As a result, Lingchong was deconsolidated from the Company since July 2019 and not included in our consolidated financial statements for the year ended December 31, 2020 and 2021.
On January 3, 2018, a 100% owned subsidiary, Qingdao Lile Pet Foodstuffs Co., Ltd. (“Lile”) was incorporated in Qingdao City, Shandong province, PRC. Lile had no active business operations since its incorporation, and it has been deregistered and dissolved since 2019 and not included in our consolidated financial statements for the year ended December 31, 2020 and 2021.
On September 20, 2018, the Board has approved acquisitions by the Company of TDH Group BVBA, a company established under the laws of Belgium and TDH JAPAN, a company established under the laws of Japan. In connection with the foregoing transactions the Company executed Share Sale and Purchase Agreements (together, the “Agreements”) pursuant to which the Company agreed to pay approximately USD$ 936,782 and USD $156,130 (RMB 6 million and RMB 1 million), respectively, to acquire all of outstanding securities of TDH Group BVBA and TDH JAPAN, respectively, from the sole shareholder of each entity, Rongfeng Cui, the Company’s former CEO. The purchase consideration under the Agreements was paid by issuance of 936,782 and 156,130 restricted common shares of the Company, respectively. Rongfeng Cui incorporated TDH Group BVBA in 2012 and TDH JAPAN in 2017 to develop and maintain all the clients in Europe and Japan, and to distribute and expand product sales in European and Japanese markets. Effective August 2, 2019, Rongfeng Cui ceased to be Company’s CEO and Dandan Liu was appointed as the CEO in his stead. TDH Japan has been deregistered and dissolved in February 2021. As of the date of this filing, TDH Group BVBA is currently under bankruptcy proceeding.
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On January 22, 2020, Qingdao Tiandihui Pet Foodstuffs Co., Ltd. (“Tiandihui Pet Foodstuffs”) was incorporated in Qingdao City, PRC.
On January 21, 2020, Qingdao Tiandihui Foodstuffs Sales Co., Ltd. (“Tiandihui Foodstuffs Sales”) was incorporated in Qingdao City, PRC. Tiandihui Foodstuffs Sales is a wholly owned subsidiary of Tiandihui Pet Foodstuffs.
On February 27, 2020, TDH Foods Limited was incorporated in Hong Kong, with the purpose of being a holding company for equity interests in Tiandihui Pet Foodstuffs. TDH Foods Limited does conduct any operations or own any material assets or liabilities.
On August 24, 2020, TDH Holdings, Inc. acquired 100% equity interests of TDH Foods Limited.
In December 2020, TDH Holdings Inc. acquired remaining 1% equity interest of TDH Petfood LLC. As a result, TDH Petfood LLC became a wholly-owned subsidiary of TDH Holdings, Inc.
TDH Petfood LLC had no active business operations since its incorporation, and it has been deregistered and dissolved in 2021.
On June 4, 2021, TDH Income Corporation (“TDH Income”) was incorporated in Nevada. TDH Holdings, Inc. owns a 99.99% interest in TDH Income, and in December 2021, TDH Holdings, Inc. acquired the remaining 0.01% interest in TDH Income. As a result, TDH Income became a wholly-owned subsidiary of TDH Holdings, Inc.
On June 9, 2021, Ruby21Noland LLC (“Ruby21Noland”) was incorporated in Missouri. Ruby21Noland is a wholly owned subsidiary of TDH Income.
On October 31, 2021, TDH Income Corporation acquired 51% equity interests of Far Ling’s Inc.
On October 31, 2021, TDH Income Corporation acquired 100% equity interests of Bo Ling’s Chinese Restaurant, Inc.
Recent Developments
Nasdaq Compliance Matters
On February 23, 2022, the Company received a notification letter from Nasdaq Listing Qualifications advising the Company that based upon the closing bid price for the Company’s common shares for the past 30 consecutive business days, the Company no longer met the minimum $1.00 per share Nasdaq continued listing requirement set forth in Nasdaq Listing Rule 5550(a)(2). The notification also stated that the Company would be provided 180 calendar days, or until August 22, 2022, to regain compliance with the foregoing listing requirement. To do so, the bid price of the Company’s common stock must close at or above $1.00 per share for a minimum of 10 consecutive business days prior to that date.
If the Company does not regain compliance by the compliance deadline, the Company may be eligible for additional time to regain compliance. To qualify, the Company will be required to meet the continued listing requirement for market value of publicly held shares and all other initial listing standards for The Nasdaq Capital Market, with the exception of the bid price requirement, and will need to provide written notice of its intention to cure the deficiency during the second compliance period, by effecting a reverse stock split, if necessary. If the Company meets these requirements, the Nasdaq staff will inform the Company that it has been granted an additional 180 calendar days. However, if it appears to the Nasdaq staff that the Company will not be able to cure the deficiency, or if the Company is otherwise not eligible, the staff will provide notice that its securities will be subject to delisting.
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COVID-19 Impact on the Company’s Operations
In December 2019, a novel strain of coronavirus was reported in Wuhan, China. On March 11, 2020, the World Health Organization categorized it as a pandemic. In response to the COVID-19 outbreak, governments around the global have implemented measures such as lockdowns, travel restrictions, and closures of businesses and schools. As a result of the COVID-19 outbreak, we have experienced suspension of operations, interruption of supply chain and decline in sales orders by our customers. Our businesses, results of operations, financial position and cash flows were adversely affected in fiscal year 2020 and 2021, including but not limited to material negative impact to our total revenues, slower collection of account receivables and significant disruptions of our supply chains. Although we resumed our operations in May 2020 and the COVID-19 outbreak in China appears to have slowed down and most provinces and cities have resumed some business activities under the guidance and support of the government, a resurgence could negatively affect the execution of customer contracts, the collection of customer payments, or disruption of the Company’s supply chain. The continued uncertainties associated with COVID 19 may cause the revenue and cash flows to underperform in the next 12 months. The extent of the future impact of COVID-19 is still highly uncertain and cannot be predicted as of the financial statement reporting date.
Today, while our offices and manufacturing facilities remain open and business activities have fully resumed, we are closely monitoring all developments and are following the guidelines issued by local and national health authorities. We strive to accommodate and support our employees, while also maintaining our commitments to our customers.
The extent of any future impact of the COVID-19 pandemic on our business is still highly uncertain and cannot be predicted as of the date of this prospectus. Any potential impact to our operating results will depend, to a large extent, on future developments and new information that may emerge regarding the duration and severity of the COVID-19 pandemic and the actions taken by government authorities to contain the spread of the COVID-19 pandemic, almost all of which are beyond our control.
Recent Private Placement
On December 2, 2020, the Company entered into subscription agreements with four accredited investors for the sale of 9,100,000 of the Company’s common shares at the price $0.30 per share for the gross proceeds of approximately $2.73 million. In April 2021, a total of 9,100,000 shares were issued to four investors with cash proceeds of $2,730,000. The shares were sold without registration under the Securities Act of 1933 in reliance on the exemptions provided by Section 4(a)(2) of the Securities Act as transactions not involving a public offering and rules promulgated under the Securities Act as sales to accredited investors. The Company’s intention was to use the proceeds of this offering for working capital and general working purposes. There were no discounts or brokerage fees associated with this offering.
Registered Direct Offerings
On September 30, 2021, the Company and certain investors entered into a securities purchase agreement in connection with a registered direct offering, pursuant to which the Company agreed to sell to the investors an aggregate of 10,000,000 of its common shares and warrants exercisable for an aggregate of 20,000,000 of its common shares. The common share purchase price is $0.89 per share and warrant purchase price is $0.01 per warrant. The warrants are exercisable immediately as of the date of issuance at an exercise price of $2.06 per share and expire twenty-four (24) months from the date of issuance. The warrants may also be exercised on a cashless basis. The Company may compel the exercise of the warrants if the closing price of the Company’s common shares exceeds $6.00 for ten (10) consecutive trading days commencing six (6) months after issuance. The exercisability of the warrants may be limited if, upon exercise, the holder or any of its affiliates would beneficially own more than 9.99% of the Company’s common shares. The registered direct Offering was closed on September 30, 2021 and the Company received approximately $8.2 million net proceeds from the issuance of 10,000,000 common shares to investors, after deducting placement agent fees and estimated offering expenses.
On November 3, 2021, the Company and certain investors entered into a securities purchase agreement in connection with a registered direct offering, pursuant to which the Company agreed to sell to the investors an aggregate of 15,000,000 of its common shares and warrants exercisable for an aggregate of 30,000,000 of its common shares. The common share purchase price is $0.64 per share and arrant purchase price is $0.01 per warrant. The warrants are exercisable immediately as of the date of issuance at an exercise price of $1.47 per share and expire twenty-four (24) months from the date of issuance. The warrants may also be exercised on a cashless basis. The Company may compel the exercise of the warrants if the closing price of the Company’s common shares exceeds $6.00 for ten (10) consecutive trading days commencing six (6) months after issuance. The exercisability of the warrants may be limited if, upon exercise, the holder or any of its affiliates would beneficially own more than 9.99% of the Company’s common shares. The registered direct offering was closed on November 3, 2021 and the Company received approximately $8.9 million net proceeds from the issuance of 15,000,000 common shares to investors, after deducting placement agent fees and estimated offering expenses.
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| B. | Business Overview |
Special Considerations
We are not a Chinese operating company but a British Virgin Islands holding company with operations conducted by our subsidiaries established in Kansas, Missouri, Nevada, PRC, Belgium, and Hong Kong.
PRC laws and regulations governing business operations are sometimes vague and uncertain, and therefore, these risks may result in a material change in the operations of our PRC subsidiaries and Hong Kong subsidiaries, significant depreciation of the value of our Common Shares, or a complete hindrance of our ability to offer or continue to offer our securities to investors and cause the value of such securities to significantly decline or be worthless. The Chinese government may intervene or influence the operations of our PRC operating entities at any time and may exert more control over offerings conducted overseas and/or foreign investment in China-based issuers, which could result in a material change in the operations of our PRC operating entities and/or the value of our Common Shares. Further, any actions by the Chinese government to exert more oversight and control over offerings that are conducted overseas and/or foreign investment in China-based issuers could significantly limit or completely hinder our ability to offer or continue to offer securities to investors and cause the value of such securities to significantly decline or be worthless. Recently, the PRC government initiated a series of regulatory actions and statements to regulate business operations in China with little advance notice, including cracking down on illegal activities in the securities market, adopting new measures to extend the scope of cybersecurity reviews, and expanding the efforts in anti-monopoly enforcement.
Trading in our Common Shares may be prohibited on national exchanges or “over-the-counter” markets under the HFCA Act if the PCAOB is unable to inspect our auditors for three consecutive years beginning in 2021, and as a result, an exchange may determine to delist our securities. Furthermore, on June 22, 2021, the U.S. Senate passed the AHFCAA, which, if signed into law, would amend the HFCA Act and require the SEC to prohibit an issuer’s securities from trading on any U.S. stock exchanges if its auditor is not subject to PCAOB inspections for two consecutive years instead of three consecutive years. Pursuant to the HFCA Act, the PCAOB issued a Determination Report on December 16, 2021 which found that the PCAOB is unable to inspect or investigate completely registered public accounting firms headquartered in: (1) mainland China of the PRC, and (2) Hong Kong. In addition, the PCAOB’s report identified the specific registered public accounting firms which are subject to these determinations.
Our auditor is currently subject to PCAOB inspections and the PCAOB is thus able to inspect our auditor. Our auditor is headquartered in Irvine, California and has not been inspected by the PCAOB, but according to our auditor, it will be inspected by the PCAOB on a regular basis. Our auditor is not headquartered in mainland China or Hong Kong and was not identified in this report as a firm subject to the PCAOB’s determination. Notwithstanding the foregoing, in the future, if there is any regulatory change or step taken by PRC regulators that does not permit YCM CPA Inc., to provide audit documentations located in China or Hong Kong to the PCAOB for inspection or investigation, or the PACOB expands the scope of the Determination so that we are subject to the HFCA Act, as the same may be amended, you may be deprived of the benefits of such inspection which could result in limitation or restriction to our access to the U.S. capital markets and trading of our securities, including trading on the national exchange and trading on “over-the-counter” markets, may be prohibited under the HFCA Act.
Overview
We started our company in 2002 in Qingdao, Shandong Province, PRC with a single mission of becoming a premier producer of high-quality pet food for pet owners in China and worldwide. Historically, our growth has been driven by two key factors: a significant increase in the number of pet owners and in the size of the pet food market in China which translated into expansion opportunities for us, and a fundamental change in Chinese society towards pets, pet ownership and care, such that the trends of pet humanization and consumer concerns for pet health and wellness have created a dynamically growing industry for pet food and products. We price our products to be accessible to the average consumer, providing us with broad demographic appeal and allowing us to penetrate multiple market segments.
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Due to the sharp rise in market price of raw materials, the lack of operational efficiency of our production facilities and our inability to make bank loan repayment upon maturity, we have suspended our production and normal business operations and we were involved in certain legal proceedings since November 2019. Although we resumed our operations in May 2020 and the COVID-19 outbreak in China appears to have slowed down and most provinces and cities have resumed some business activities under the guidance and support of the government, a resurgence could negatively affect the execution of customer contracts, the collection of customer payments, or disruption of the Company’s supply chain. These factors led to a decrease in our pet food revenue by 40.5% or $0.33 million in 2021 as compared to 2020. On October 31, 2021, we acquired 51% equity interests of Far Ling’s Inc and 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. This resulted in an increase of $0.6 million in food service revenue. We suffered recurring net loss of approximately $6.72 million in 2021.
We are now facing challenges to recover our production and normal business activities. Our future growth may place a significant strain on our sales and marketing capacities, administrative and operating infrastructure, manufacturing facilities and other resources. To effectively manage additional challenges brought in by the global spread of COVID-19 and maintain our growth, we also need to evaluate and identify suitable strategic or acquisition opportunities, complete such transactions on commercially favorable terms, or successfully integrate business operations, infrastructure and management philosophies of acquired businesses and companies. If we are unable to effectively address these challenges, our ability to execute acquisitions as a component of our long-term strategy will be impaired, which could have an adverse effect on our growth. We also need to expand our customer base, refine our operational, financial and management controls and reporting systems and procedures. If we fail to efficiently manage this expansion of our business, our costs and expenses may increase more than anticipated and we may not successfully attract a sufficient number of customers in a cost-effective manner, respond to competitive challenges, or otherwise execute our business plans. In addition, we may, as part of carrying out our growth strategies, adopt new initiatives to implement new pricing models and strategies. We cannot assure you that these initiatives may achieve the anticipated results.
As a result of our suspension of our production in November 2019 which was further negatively impacted by the COVID-19 outbreak and spread in 2020 and 2021, we have reduced our number of employees in response to current challenges. As of the date of this filing, we employ around 42 full-time employees at our facilities. With the exception of our subsidiary’s offices located in Beijing, all of our production, executive, sales/marketing and customer service facilities covering the PRC and overseas markets are located in Shandong Province, PRC.
Our Industry and Market
China Pet Food Industry
While the global pet food market is well-established worldwide, in China it is a relatively new industry. China’s economy has shown steady growth over the last decade, from a GDP per capita of $1,509 in 2004 to $10,500 in 2020. By 2023, China’s pet industry is estimated to reach RMB 472.3 billion in combined annual revenue. This would represent an 800 percent increase compared to 2013. As of 2020, close to 63 million people in China were taking care of over 100 million pets, supporting a $32 billion service industry for just cats and dogs. And of that $32 billion, around $17.8 billion was spent on pet food alone.
The growth in this industry is largely a function of consumer education and increased awareness of pet food products, product ingredients, quality, brand awareness and loyalty. We consider pet humanization to be another driving factor behind the growth trend, i.e., where pet owners view their pets as members of the family. As pets are increasingly viewed as companions, friends, and family members, pet owners spare no expense for their pets, driving premiumization across pet categories. Research shows an increasing percentage of Chinese pet owners (57.1%) are coming to see pets as their “children”. And, as it goes with children, pet “parents” are ready to lavish their love by investing more on making their pets happier.
While the multinational brands still dominate the Chinese pet food market, the market growth is being driven by local brands, especially in pet shops, with 29% growth for domestic cat food brands overall and 10% in pet shops (though cat food represents just 35% of the market). With dog food, sales increase for domestic brands are more modest—about 9% overall and nearly 10% in pet shops—but the average price per kilogram of domestic dog foods brands is growing much closer to that of multinational brands.
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In 2020, around 57 percent of China’s pet food was sold via e-commerce platforms, an increase from about 50.5 percent in the previous year.
Our Competitive Strengths
Although we suffered significant decrease in revenue and had a recurring loss in 2021, given our current recovery plan, we believe the following strengths can still differentiate us from our competitors in our market in China:
| ● | Strength and variety of our brands – we offer in excess of 200 products, including dry meat treats, pet biscuits, canned food and other non-food products (e.g. dog leashes, pet toys etc.) under multiple brands that are well-established and recognizable by consumers in the PRC, Asia and Europe. |
| ● | Product research & development – we believe that our products are differentiated from those of our competitors in the PRC markets due to our in-depth research and development effort and our proprietary recipes and cooking techniques developed over the last decade. Although we did not incur any R&D expenses in 2021, partly due to our temporary suspension of our manufacturing activities in 2019, looking forward, in order to diversify our product offering to meet customer demands in the future, we may incur additional R&D expenses in the coming years to maintain our competitive advantage. |
| ● | Sales and marketing distribution – our multi-platform sales approach connects our production output to customers in the PRC, Asia, Europe and North America. |
| ● | Experienced and committed management team - Tiandihui’s workforce is a highly skilled with specialized training designed to address complex customer care engagements; our entrepreneurial management team includes employees who have significant experience in animal nutrition, sales and marketing, among others. Our management team is comprised of an experienced group of executives, many of whom have many years of operating experience. |
We intend to continue capitalizing on our strengths in order to achieve a business turnaround for sales growth and profitability in the near future.
Our History and Corporate Structure
We are a holding company incorporated in the British Virgin Islands (incorporated on September 30, 2015) that owns all of the outstanding capital stock of TDH HK Limited, our wholly-owned Hong Kong subsidiary (TDH HK). We also own all of the outstanding capital stock of TDH Foods Limited, another wholly-owned Hong Kong subsidiary, and holds a 100% interest in TDH Income Corporation, a Nevada limited liability company. TDH HK, in turn, owns all of the outstanding capital stock of Qingdao Tiandihui Foodstuffs Co., Ltd., our operating subsidiary based in Qingdao City, Shandong Province, China, incorporated in April 2002 as a PRC limited liability company (Tiandihui). TDH Foods Limited owns 100% of the outstanding capital stock of Qingdao Tiandihui Pet Foodstuffs Co., Ltd, with its wholly-owned subsidiary of Qingdao Tiandihui Foodstuffs Sales Co., Ltd. TDH HK Limited owns 100% of the outstanding capital stock of Qingdao Tiandihui Foodstuffs Co., Ltd., with its wholly-owned subsidiary of Beijing Chongai Jiujiu Cultural Communication Co., Ltd. TDH Income Corporation owns 100% of the outstanding capital stock of Ruby21Noland LLC. Ruby21Noland LLC was incorporated in the State of Missouri on June 9, 2021. On October 31, 2021, TDH Income Corporation acquired 51% equity interests of Far Ling’s Inc. On October 31, 2021, TDH Income Corporation acquired 100% equity interests of Bo Ling’s Chinese Restaurant, Inc.
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On September 20, 2018, the Board approved acquisitions by the Company of TDH Group BVBA, a company established under the laws of Belgium and TDH JAPAN, a company established under the laws of Japan. In connection with the foregoing transactions the Company executed Share Sale and Purchase Agreements (together, the “Agreements”) pursuant to which the Company agreed to pay approximately USD$ 936,782 and USD $156,130 (RMB 6 million and RMB 1 million), respectively, to acquire all of outstanding securities of TDH Group BVBA and TDH JAPAN, respectively, from the sole shareholder of each entity, Rongfeng Cui, the Company’s former CEO. The purchase consideration under the Agreements was paid by issuance of 936,782 and 156,130 restricted common shares of the Company, respectively. Rongfeng Cui incorporated TDH Group BVBA in 2012 and TDH JAPAN in 2017 to develop and maintain all the clients in Europe and Japan, and to distribute and expand product sales in European and Japanese markets. TDH Japan has been deregistered and dissolved in February 2021. As of the date of this filing, TDH Group BVBA is currently under bankruptcy proceeding.
Our Products
The pet food market consists of dog food and cat food sales. Food sales are further categorized as dry food, wet food and treats:
| ● | Dry food is the primary food form for both dogs and cats, with the same formula typically purchased regularly. Veterinarians recommend dry food for healthy pets as the main meal, which is better for pets’ teeth, has better economic value and is more convenient to handle and store |
| ● | Wet food has higher penetration among cats as compared to dogs, as it helps to ensure that cats meet their required water intake. Most cat owners feed their cats a combination of dry and wet foods as main meals, while most dog owners feed their dogs wet foods as a treat or topper to provide variety |
| ● | Treats are typically impulse purchases by pet owners made alongside staple, main meal dry and wet food purchases. Many treats have dental and training benefits and also serve as nutritional supplements. Dog and cat treats have been growing rapidly over the last decade driven by the humanization trend with pet owners indulging their pets more, including by purchasing treats as gifts. |
Product research and innovation is pivotal to our growth strategy. Our experienced team of marketing and R&D professionals is in constant contact with our outside collaborators and experts. The success of our approach is evidenced by our broad product portfolio today. Although our R&D expense decreased in 2021, we strive to maintain a strong innovation pipeline that expands the breadth of our current product offerings.
We offer in excess of 200 products, including dry meat treats, pet biscuits, canned food and other products (including non-food items like dog leashes and pet toys) under multiple brands in various geographical markets. Currently, we offer 4 product lines including the following:
| ● | Pet chews represent approximately 10.3% of our production and include various bones, rawhide and similar products, |
| ● | Dried pet snacks represent approximately 66% of our production and include various fillets, strips and jerkies (chicken, duck, pork, lamb, etc.), |
| ● | Wet canned pet foods represent approximately 22.3% of our production and include various fillets, strips and jerkies (chicken, duck, pork, lamb, etc.), |
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| ● | Dental health snacks foods account for approximately 1.4% of our production. |
We manufacture these products at our Pude facility with 4 production lines: dried meat, chews, wet canned, and dentifrice products.
These food products vary from those consisting of a single protein ingredient (e.g., duck jerky) to those consisting of a combination of protein and other ingredients (e.g., twisted cod and chicken sandwich roll that includes chicken, cod and Vitamin E). Our proprietary recipes include fresh meat (beef, chicken, lamb, and fish) and varying combinations of vitamin-rich vegetables, and anti-oxidant rich fruits. We believe our products appeal to diverse consumer needs and resonate across a broad cross-section of pet owner demographics. Our products are available in multiple forms, including slice and serve rolls, strips, tubs, etc.
| ● | The Pude facility maintains a production area of 30,565 sq. feet with a 20-year export processing history. We maintain ISO9001, hazard analysis critical Control Points (HACCP), British Retail Consortium (BRC) and International Characteristic Standards (IFS) certification, as well as EU and Japanese registered facilities. The daily production capacity for this facility is approximately 4.6 tons. |
| ● | The Jiaozhou facility has production area of 30,062 square feet. Our daily production capacity at this facility is approximately 0.8 ton. We stopped leasing the plant since the beginning of 2021. |
Supply Chain
Manufacturing
All of our products are manufactured in the PRC. As of the date of this filing, we own one manufacturing facility- The Pude facility in the Shandong province for a total production area of approximately 30,565 square feet built to high quality food production standards.we also leased the Jiaozhou facility with production area of 30,062 square feet and daily production capacity at this facility is approximately 0.8 ton. In 2021, 2020 and 2019, 98%, 97% and 40% respectively, of our product volume was manufactured by us. We also strategically partner with a select group of contract manufacturers that manufacturing facilities to supplement our production needs.
Ingredients and Packaging
Our products are made with fresh ingredients including meat (chicken, beef, lamb, fish, etc.), vegetables, fruits, vitamins and minerals. We use quality food grade plastic packaging materials and maintain rigorous overall standards for ingredient quality and safety. In addition, we maintain one raw material procurement center which provides a single-source supply for all our manufacturing facilities to maintain quality control throughout the production facilities. Also, in order to retain operating flexibility and negotiating leverage, we do not enter into exclusivity agreements or long-term commitments with any of our suppliers. All of our suppliers are established PRC companies that have the scale to support our growth. For every ingredient, we have sources of supply that meet our quality and safety standards.
Distribution
Our facilities are located in the coastal city of Qingdao, near Qingdao International Airport and the international Qingdao harbor, which proximity ensures efficient international transportation by sea/air. Outbound transportation from our facility is primarily handled through transportation by sea, which deliver our products to our customers. As our volumes grow, we expect to be able to leverage our distribution costs.
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Quality Control
We are committed to the highest quality of products that leave our facilities. To that end, we have implemented a rigid quality control system and devote significant attention to quality control procedures at every stage of our process, including spot testing of finished products. Our entire food processing chain, from sourcing of raw materials to the finished products, is closely monitored to ensure that all pet food products meet the highest level of global hygienic and quality standards. We monitor our manufacturing process closely and conduct performance and reliability testing to ensure our products meet our end-user customer expectations. Our quality control group as of December 2021 included 2 employees that implement various management systems to improve product quality programs, most of whom are trained in quality control and nutrition. We spot test and inspect our raw materials to ensure compliance with quality standards. We also evaluate the quality and delivery performance of each supplier periodically and adjust quantity allocations accordingly. We also monitor in-process and outgoing stages of our processes.
We have established control points throughout the entire supply chain from ingredient sourcing to finished goods to ensure compliance with our quality program. We require our contract and owned manufacturing facilities to maintain the same quality standards as those at our facilities and pass our own quality system and food safety inspections. We ensure that all of our ingredients are rigorously tested prior to being approved for use in our products. Testing certifications which confirm that the ingredient meets our specifications as to quality and safety, accompany every shipment. In addition, our food safety and quality program include strict guidelines for incoming ingredients, batching, processing, packaging and finished goods. However, despite our strict quality controls, it is possible that there may be from time to time, as there has been in the past, issues or concerns with respect to our products.
Quality Certifications and Accreditations
In a continuous effort to meet various international production and quality manufacturing standards, we have a number of certifications and accreditations. We have secured these certifications and accreditations to show evidence of high-quality manufacturing standards that we apply to our production and managements processes and to access domestic and foreign markets. We believe that maintaining objectively verifiable quality standards fosters consumer confidence and loyalty and maximizes customer satisfaction and recognition.
Sales and Marketing
Our sales and marketing team consists of 2 integral groups – an original design manufacturer (ODM) domestic (PRC) marketing group, and an ODM overseas marketing group. We operate a B2F (business-2-factory) business model which is focused on the needs of the business market. Our model relies on our R&D strength to devise product lines to cater to this market, providing our customers with personalized and customized products. Our marketing team works in tandem with our brand promotion team which focuses on brand promotion. As a part of our ODM production process, we continuously accumulate a large amount of market information about our customers, in the PRC and abroad, which assists us in making appropriate selection of products. We utilize online sale and multi-brand, multi-store brand sale strategies. Using Tmall.com, JD.com and 1688 as our marketing platforms, our PRC marketing group has established a comprehensive network of various brand shops.
Competition
The market for pet food and related products in the PRC is emerging and highly competitive. In prior years, Chinese pet food manufacturers were viewed in the pet food industry as suppliers of cheaper food and snack products for pets which were almost always delivered under Western brand name products. The competitive landscape is changing now as a number of PRC-based manufacturers operate and compete domestically and worldwide alongside with other major industry players. The PRC market is characterized by price competition, product quality and the presence of a number of medium to large companies, as discussed below. Relatively high barriers of entry for new participants into this industry include relatively large initial capital outlays, uncertain regulatory environment, scarcity of suitable production, raw material supply sources, and skilled management. Thus, if we do not compete effectively, our operating results could be harmed.
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Mars Foods (China) Co. Pvt. Ltd., Royal Canin Au Yu (Shanghai) Pet Food Co Ltd. and Nestle (China) are three largest players in the PRC pet food industry. Royal Canin enjoys a widespread nationwide distribution network. In addition, the company runs an official flagship store on the largest B2C online platform in China, Tmall.com, to reach out to wider range of consumers.
We compete primarily on the basis of our product range, reputation, product quality, brand loyalty, and total value delivered. We are subject to pricing pressures and may experience a decline in average selling prices for our products. We attempt to mitigate these pricing pressures by differentiating ourselves from our competition based on the value we bring to our clients through the quality and variety of our products.
Our competitors include the following PRC-based manufacturers:
| ● | Yantai China Pet Foods Co., Ltd. - Established in 1998, Yantai China Pet Foods Co., Ltd. is one of the leading manufacturers of pet snacks in China. This company is publicly traded in Shenzhen stock exchange (002891.SZ), which offers approximately 500 products in eleven product lines with products distributed to the UK, the US, Japan, Germany, Korea, Hong Kong, Singapore, Russia, France, the Netherlands, Czech Republic, the Middle East, Australia, New Zealand, and other countries and regions. |
| ● | Wenzhou Peidi Pet Products Co., Ltd. – Founded in 2002, Wenzhou Peidi is a Shenzhen stock exchange (300673.SZ) publicly traded large-scale manufacturer of pet products and food in Zhejiang Province, China. It specializes in rawhide chews, leather collars and leashes, as well as nutritional pet food, treats, toys and gifts and markets these products on a worldwide basis. |
| ● | Guaibao Pet Food Group Co., Ltd. – Established in June 2006, it is a comprehensive enterprise integrating research and development, production and sales of pet food. Its main products are pet food for dogs and cats, dried and freeze-dried snacks, canned wet food, chewing gum, cleaning teeth and other categories of pet food. |
Seasonality
Overall pet food sales experience modest seasonality during the fourth quarter, which is when pet owners tend to spend more on pet treats as gifts, being approximately 22% higher than during summer months.
Research & Development
Although we did not have research and development spending in 2020 and 2021, looking forward, in order to diversify our product offering to meet customer demands in the future, we may incur additional R&D expenses in the coming years to maintain our competitive advantage.
Intellectual Property
The PRC has domestic laws for the protection of rights in copyrights, patents, trademarks and trade secrets. The PRC is also a signatory to all of the world’s major intellectual property conventions, including:
| ● | Convention establishing the World Intellectual Property Organization (June 3, 1980); |
| ● | Paris Convention for the Protection of Industrial Property (March 19, 1985); |
| ● | Patent Cooperation Treaty (January 1, 1994); and |
| ● | Agreement on Trade-Related Aspects of Intellectual Property Rights (November 11, 2001). |
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The PRC Trademark Law, adopted in 1982 and revised in 2013, with its implementation rules adopted in 2014, protects registered trademarks. The Trademark Office of the State Administration of Industry and Commerce of the PRC, handles trademark registrations and grants trademark registrations for a term of ten years.
Our primary trademark portfolio consists of 15 registered trademarks. Our trademarks are valuable assets that reinforce the distinctiveness of our brand and our consumers’ favorable perception of our products. The current registrations of these trademarks are effective for varying periods of time and may be renewed periodically, provided that we, as the registered owner, comply with all applicable renewal requirements including, where necessary, the continued use of the trademarks in connection with similar goods. In addition to trademark protection, we own 4 URL designations/domain names, including tdhpet.cn, tdhpet.com,, tdhpetfood.com and tiandihui.com. We also own 1 copyright, the name of which is the Mascot of Chongai Jiujiu-Huihui, and will expire on December 31, 2064.
On September 1, 2016, we entered into an exclusive 10-year trademark using agreement with TDH Group BVBA, a limited liability company organized under the laws of Belgium (TDH BVBA), under which agreement we have secured right to the exclusive usage of ” Pet Cuisine” and “Hum & Cheer” trademarks worldwide, from September 1, 2016 to August 31, 2026 in consideration for the exclusive fee of 5% of the total sales of such products which used those two trademarks, payable every six months. In November 2018, we completed acquisition of TDH BVBA.
Patents in China are principally protected under the Patent Law of China. The duration of a patent right is either 10 years (utility model or design) or 20 years (invention) from the date of application, depending on the type of patent rights.
Currently, we hold the following design patents pertaining to the pet food products:
| No. | Name of Patent | Patent Number | Types | Date of authorization | |||||||||
| 1 | A chicken cartilage composite functional dog food and preparation method | 201310653084.4 | Invention | May 20, 2015 | |||||||||
| 2 | A pet dog food and its preparation method | 201310651439.6 | Invention | August 5, 2015 | |||||||||
| 3 | A preparation method of beef flavor nutrition canned food canned food | 201310651598.6 | Invention | May 20, 2015 | |||||||||
| 4 | A full price nutritive semi wet pet dog food and preparation method | 201310654269.7 | Invention | May 20, 2015 | |||||||||
| 5 | A hermaphrodite breeding device for pet dog | 201520651073.7 | utility model | January 6, 2016 | |||||||||
| 6 | A pet dog’s molars knot bone | 201520651112.3 | utility model | March 2, 2016 | |||||||||
| 7 | A new kind of pet food | 201520651920. | X | utility model | March 2, 2016 | ||||||||
| 8 | A pet cat bone cleaning bone | 201520649912.1 | utility model | June 1, 2016 | |||||||||
Our intellectual property rights are important to our business. We rely on a combination of trade secrets, confidentiality procedures and contractual provisions to protect our intellectual property. We also rely on and protect unpatented proprietary expertise, recipes and formulations, continuing innovation and other trade secrets to develop and maintain our competitive position.
We enter into confidentiality agreements with most of our employees and consultants, and control access to and distribution of our documentation and other licensed information. Despite these precautions, it may be possible for a third party to copy or otherwise obtain and use our technology without authorization, or to develop similar technology independently. Since the Chinese legal system in general, and the intellectual property regime in particular, is relatively weak, it is often difficult to enforce intellectual property rights in China. Policing unauthorized use of our technology is difficult and the steps we take may not prevent misappropriation or infringement of our proprietary technology. In addition, litigation may be necessary in the future to enforce our intellectual property rights, to protect our trade secrets or to determine the validity and scope of the proprietary rights of others, which could result in substantial costs and diversion of our resources and could have a material adverse effect on our business, results of operations and financial condition.
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We require our employees to enter into non-disclosure agreements to limit access to and distribution of our proprietary and confidential information. These agreements generally provide that any confidential or proprietary information developed by us or on our behalf must be kept confidential. These agreements also provide that any confidential or proprietary information disclosed to third parties in the course of our business must be kept confidential by such third parties. In the event of trademark infringement, the State Administration for Industry and Commerce has the authority to fine the infringer and to confiscate or destroy the infringing products.
Properties
Under Chinese law, all of the land in China is either state-owned or collectively-owned, depending on its location and the specific laws governing such land. Collectively-owned land is owned by rural collectives and generally cannot be used for non-agricultural purposes unless approved by the Chinese government. Collectively-owned land cannot be transferred, leased or mortgaged to non-collectives without first being converted into state-owned land. Individuals and entities may acquire rights to use state-owned land, or land-use-rights, for commercial, industrial or residential purposes by means of mutual agreement, tender, auction or listing for sale from local land authorities or an existing holder of a land-use-right. Land-use-rights granted for commercial, industrial and residential purposes may be granted for a period of up to 40, 50 or 70 years, respectively. This period may be renewed at the expiration of the initial and any subsequent terms, subject to compliance with relevant laws and regulations. Land-use-rights are transferable and may be used as security for borrowings and other obligations.
Our principal executive office is located at Qingdao Tiandihui Foodstuffs Co. Ltd., 2521 Tiejueshan Road, Huangdao District, Qingdao, Shandong Province, PRC. Our telephone number is +86 532-8615-7918. Our website address is www.tiandihui.com. The information on our website is not part of this Annual Report.
In addition, the company currently has only one factory, located in the coastal city of Qingdao, near Qingdao International Airport and the international Qingdao harbor, which proximity ensures efficient international transportation by sea/air. Our facilities are used for customer service, sales and marketing, R&D and administrative functions. We believe our facilities are adequate for our current needs.
A summary description of our facilities is as follows (this list does not include any of the outsourcing facilities that we may, from time to time, use to support our production needs):
Capacity Ton per day | Location | Total area (square feet) | rent/owned | ||||||||||||||
| 1 | Pude facility | 4.6 | West point, Tiejueshan Road, Huangdao District, Qingdao City | 30,565 | owned | ||||||||||||
Our daily production capacity for all of our production facilities is approximately 4.6 tons.
We own the Pude facility which has a 20-year export processing history. We maintain ISO9001, hazard analysis critical Control Points (HACCP), British Retail Consortium (BRC) and International Characteristic Standards (IFS) certification, as well as EU and Japanese registered facilities. The daily production capacity of our factory is approximately 4.6 tons.
Government Regulation
In the U.S., the Food and Drug Administration regulates both content and labeling of all animal food, China does not have a significant body of pet food laws, rules or regulations. Various regulatory agencies (e.g., the Ministry of Agriculture, the General Administration for Quality Supervision, Inspection and Quarantine) administer a set of standards, but there appears to be no single regulatory or administrative agency that is fulfills the comprehensive regulatory function. We are also subject to PRC labor and employment laws, laws governing advertising and other laws. We monitor changes in these laws and believe that our operations are in compliance in all material aspects with all PRC rules and regulations applicable to pet food production. However, many such rules and regulations are subject to extensive interpretive power of governmental agencies and commissions, and there is substantial uncertainty regarding the future interpretation and application of these laws or regulations.
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Regulation of Foreign Currency Exchange and Dividend Distribution
Foreign Currency Exchange. The principal regulations governing foreign currency exchange in China are the Foreign Exchange Administration Regulations (1996), as amended on August 5, 2008, the Administration Rules of the Settlement, Sale and Payment of Foreign Exchange (1996) and the Interim Measures on Administration on Foreign Debts (2003). Under these regulations, Renminbi are freely convertible for current account items, including the distribution of dividends, interest payments, trade and service-related foreign exchange transactions, but not for most capital account items, such as direct investment, loans, repatriation of investment and investment in securities outside China, unless the prior approval of State Administration of Foreign Exchange (SAFE) or its local counterparts is obtained. In addition, any loans to an operating subsidiary in China that is a foreign-invested enterprise, cannot, in the aggregate, exceed the difference between its respective approved total investment amount and its respective approved registered capital amount. Furthermore, any foreign loan must be registered with SAFE or its local counterparts for the loan to be effective. Any increase in the amount of the total investment and registered capital must be approved by the PRC Ministry of Commerce or its local counterpart. We may not be able to obtain these government approvals or registrations on a timely basis, if at all, which could result in a delay in the process of making these loans. The dividends paid by the subsidiary to its shareholder are deemed shareholder income and are taxable in China. Pursuant to the Administration Rules of the Settlement, Sale and Payment of Foreign Exchange (1996), foreign-invested enterprises in China may purchase or remit foreign exchange, subject to a cap approved by SAFE, for settlement of current account transactions without the approval of SAFE. Foreign exchange transactions under the capital account are still subject to limitations and require approvals from, or registration with, SAFE and other relevant PRC governmental authorities.
Dividend Distribution. The principal regulations governing the distribution of dividends by foreign holding companies include the Company Law of the PRC (1993), as amended in 2013, the Foreign Investment Enterprise Law (1986), as amended in 2000 and 2016 respectively, and the Administrative Rules under the Foreign Investment Enterprise Law (1990), as amended in 2001 and 2014 respectively. Under these regulations, wholly foreign-owned investment enterprises in China may pay dividends only out of their retained profits, if any, determined in accordance with PRC accounting standards and regulations. In addition, wholly foreign-owned investment enterprises in China are required to allocate at least 10% of their respective retained profits each year, if any, to fund certain reserve funds unless these reserves have reached 50% of the registered capital of the enterprises. These reserves are not distributable as cash dividends, and a wholly foreign-owned enterprise is not permitted to distribute any profits until losses from prior fiscal years have been offset.
Circular 37. On July 4, 2014, SAFE issued Circular 37, which became effective as of July 4, 2014. According to Circular 37, PRC residents shall apply to SAFE and its branches for going through the procedures for foreign exchange registration of overseas investments before contributing the domestic assets or interests to a SPV. An amendment to registration or filing with the local SAFE branch by such PRC resident is also required if the registered overseas SPV’s basic information such as domestic individual resident shareholder, name, operating period, or major events such as domestic individual resident capital increase, capital reduction, share transfer or exchange, merger or division has changed. Although the change of overseas funds raised by overseas SPV, overseas investment exercised by overseas SPV and non-cross-border capital flow are not included in Circular 37, we may be required to make foreign exchange registration if required by SAFE and its branches. Moreover, Circular 37 applies retroactively. As a result, PRC residents who have contributed domestic assets or interests to a SPV, but failed to complete foreign exchange registration of overseas investments as required prior to implementation of Circular 37, are required to send a letter to SAFE and its branches for explanation. Under the relevant rules, failure to comply with the registration procedures set forth in Circular 37 may result in receiving a warning from SAFE and its branches, and may result in a fine of up to RMB 300,000 for an organization or up to RMB 50,000 for an individual. PRC residents who control our company are required to register with SAFE in connection with their investments in us. If we use our equity interest to purchase the assets or equity interest of a PRC company owned by PRC residents in the future, such PRC residents will be subject to the registration procedures described in Circular 37.
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New M&A Regulations and Overseas Listings
On August 8, 2006, six PRC regulatory agencies, including the Ministry of Commerce, the State Assets Supervision and Administration Commission, the State Administration for Taxation, the State Administration for Industry and Commerce, China Security Regulation Commission (CSRC) and SAFE, jointly issued the Regulations on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors, or the New M&A Rule, which became effective on September 8, 2006 and was amended on June 22, 2009. This New M&A Rule, among other things, includes provisions that purport to require that an offshore special purpose vehicle formed for purposes of overseas listing of equity interests in PRC companies and controlled directly or indirectly by PRC companies or individuals obtain the approval of CSRC prior to the listing and trading of such special purpose vehicle’s securities on an overseas stock exchange. On September 21, 2006, CSRC published on its official website procedures regarding its approval of overseas listings by special purpose vehicles. The CSRC approval procedures require the filing of a number of documents with the CSRC and it would take several months to complete the approval process. The application of this new PRC regulation remains unclear with no consensus currently existing among leading PRC law firms regarding the scope of the applicability of the CSRC approval requirement. Our PRC counsel has advised us that, based on their understanding of the current PRC laws and regulations:
| ● | We currently control the Operating Companies by virtue of TDH HK Holding acquiring 100% of the equity interests of Qingdao Tiandihui, which are regulated by the New M&A Rule. According to the New M&A Rule, when a domestic company or a domestic natural person, through an overseas company established or controlled by it, to acquire a domestic company’s equity interest which is related to or connected with it, approval from Ministry of Commerce is required. At the time of our equity interest acquisition, as the acquiree, Qingdao Tiandihui was not related to or connected with the foreign investor, or the acquirer, TDH HK Holding. Accordingly, we did not need the approval from Ministry of Commerce. In addition, we have received all relevant approvals and certificates required for the acquisition. |
| ● | We currently control the Operating Companies by virtue of TDH Foods Limited acquiring 100% of the equity interests of Tiandihui Pet Foodstuffs, which are regulated by the New M&A Rule. According to the New M&A Rule, when a domestic company or a domestic natural person, through an overseas company established or controlled by it, to acquire a domestic company’s equity interest which is related to or connected with it, approval from Ministry of Commerce is required. At the time of our equity interest acquisition, as the acquiree, Tiandihui Pet Foodstuffs was not related to or connected with the foreign investor, or the acquirer, TDH Foods Limited. Accordingly, we did not need the approval from Ministry of Commerce. In addition, we have received all relevant approvals and certificates required for the acquisition. |
| ● | The CSRC approval under the New M&A Rule only applies to overseas listings of SPVs that have used their existing or newly issued equity interest to acquire existing or newly issued equity interest in Chinese domestic companies, or a SPV-domestic company share swap. TDH Holdings, Inc. does not constitute a SPV that is required to obtain approval from the CSRC for overseas listing under the New M&A Rule because there has not been any SPV-domestic company share swap in our corporate history; and |
Notwithstanding the above analysis, the CSRC has not issued any definitive rule or interpretation regarding whether offerings like the one contemplated by this Annual Report are subject to the New M&A Rule.
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Regulations on Offshore Parent Holding Companies’ Direct Investment in and Loans to Their PRC Subsidiaries
An offshore company may invest equity in a PRC company, which will become the PRC subsidiary of the offshore holding company after investment. Such equity investment is subject to a series of laws and regulations generally applicable to any foreign-invested enterprise in China, which include the Wholly Foreign-owned Enterprise Law, the Sino-foreign Equity Joint Venture Enterprise Law, the Sino-foreign Contractual Joint Venture Enterprise Law, all as amended from time to time, and their respective implementing rules; the Administrative Provisions on Foreign Exchange in Domestic Direct Investment by Foreign Investors; and the Notice of the State Administration on Foreign Exchange on Further Improving and Adjusting Foreign Exchange Administration Policies for Direct Investment.
Under the aforesaid laws and regulations, the increase of the registered capital of a foreign-invested enterprise is subject to the prior approval by the original approval authority of its establishment. In addition, the increase of registered capital and total investment amount shall both be registered with SAIC, MOFCOM and SAFE. Shareholder loans made by offshore parent holding companies to their PRC subsidiaries are regarded as foreign debts in China for regulatory purpose, which is subject to a number of PRC laws and regulations, including the PRC Foreign Exchange Administration Regulations, the Interim Measures on Administration on Foreign Debts, the Tentative Provisions on the Statistics Monitoring of Foreign Debts and its implementation rules, and the Administration Rules on the Settlement, Sale and Payment of Foreign Exchange. Under these regulations, the shareholder loans made by offshore parent holding companies to their PRC subsidiaries shall be registered with SAFE. Furthermore, the total amount of foreign debts that can be borrowed by such PRC subsidiaries, including any shareholder loans, shall not exceed the difference between the total investment amount and the registered capital amount of the PRC subsidiaries, both of which are subject to the governmental approval.
Restaurant Segment
On October 31, 2021, the Company completed the acquisition of 51% equity interests of Far Ling’s Inc. and 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. The Company believes that the acquisition brings new revenue source for the Company going forward.
Bo Lings Chinese Restaurant, which was founded by Richard (Bo) and Far Ling (Ling) Ng, husband and wife, in 1981. Today there are 5 Bo Lings Chinese Restaurants in the Kansas City area, as well as a warehouse for distribution of supplies. All Bo Lings restaurants are full service that include a dining area, bar, carry out menu and offer catering services. The location we purchased is in Overland Kansas and offers a full Cantonese Dim Sum menu and space for banquets. Most of the menu items are prepared onsite in the kitchen and cooked to order. Business is managed by Richard and Far Ling with a team of employees in each restaurant, including bookkeepers, a marketing manager and a purchasing director. Over the years, we believe Bo Lings has built a reputation as one of the best Chinese restaurants in the Kansas City area. Currently, no other Chinese Restaurant has 2 or more restaurants in our area.
ITEM 4A. UNRESOLVED STAFF COMMENTS
Not applicable.
ITEM 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS
Overview
We started our company in 2002 in Qingdao, Shandong Province, PRC with a single mission of becoming a premier producer of high-quality pet food for pet owners in China and worldwide. Our growth has been driven by two key factors: a significant increase in the number of pet owners and in the size of the pet food market in China which translated into expansion opportunities for us, and a fundamental change in Chinese society towards pets, pet ownership and care, such that the trends of pet humanization and consumer concerns for pet health and wellness have created a dynamically growing industry for pet food and products. We price our products to be accessible to the average consumer, providing us with broad demographic appeal and allowing us to penetrate multiple market segments. Founded on these building blocks, as well as on our in-depth research and development, production, and sales capabilities, we believe we are well prepared to be one of the leading producers of pet food in the PRC and beyond.
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We are a holding company incorporated in the British Virgin Islands (incorporated on September 30, 2015) that owns all of the outstanding capital stock of TDH HK Limited, our wholly-owned Hong Kong subsidiary (TDH HK). We also own all of the outstanding capital stock of TDH Foods Limited, another wholly-owned Hong Kong subsidiary, and holds a 100% interest in TDH Income Corporation, a Nevada limited liability company. TDH HK, in turn, owns all of the outstanding capital stock of Qingdao Tiandihui Foodstuffs Co., Ltd., our operating subsidiary based in Qingdao City, Shandong Province, China, incorporated in April 2002 as a PRC limited liability company (Tiandihui). TDH Foods Limited owns 100% of the outstanding capital stock of Qingdao Tiandihui Pet Foodstuff Co., Ltd, with its wholly-owned subsidiary of Qingdao Tiandihui Foodstuff Sales Co., Ltd. We conduct all of our business through Tiandihui, Tiandihui Pet Foodstuff and Tiandihui Foodstuff Sales which has one wholly-owned subsidiary: Beijing Chongai Jiujiu Cultural Communication Co., Ltd. (incorporated on March 3, 2011). TDH Income Corporation owns 100% of the outstanding capital stock of Ruby21Noland LLC. Ruby21Noland LLC was incorporated in the State of Missouri on June 9, 2021. On October 31, 2021, TDH Income Corporation acquired 51% equity interests of Far Ling’s Inc. On October 31, 2021, TDH Income Corporation acquired 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. In addition, TDH Group BVBA, a Belgium company is wholly-owned by TDH Holdings, Inc.; TDH JAPAN, a Japanese company is wholly-owned by TDH Holdings, Inc. TDH Japan has been deregistered and dissolved in February 2021.
Our principal executive office is located at Qingdao Tiandihui Foodstuffs Co. Ltd., 2521 Tiejueshan Road, Huangdao District, Qingdao, Shandong Province, PRC. Our telephone number is +86 532-8615-7918. Our website address is www.tiandihui.com. The information on our website is not part of this Annual Report.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion and analysis of our financial condition and results of operations in conjunction with our audited consolidated financial statements and the related notes included elsewhere in this annual filing. This discussion contains forward-looking statements that involve risks and uncertainties. Our actual results and the timing of selected events could differ materially from those anticipated in these forward-looking statements as a result of various factors, including those set forth under “Risk Factors” and elsewhere in this annual filing.
Recent Developments
The Company’s business operations may be further negatively impacted by the COVID-19 Pandemic
Our business operations has been affected and may continue to be affected by the ongoing COVID-19 pandemic. The COVID-19 pandemic continues to have a severe and negative impact on the Chinese and the global economy. Whether this will lead to a prolonged downturn in the economy is still unknown. The global spread of the COVID-19 pandemic in major countries of the world has and may continue to result in global economic distress, and the nature of and extent to which it may affect our results of operations will depend on future developments of the COVID-19 pandemic, which are highly uncertain and difficult to predict. Although we resumed our operations since May 2020, any resurgence could negatively affect the execution of customer contracts, the collection of customer payments, and the continued uncertainties associated with the COVID 19 pandemic may cause our revenue and cash flows to underperform in the next 12 months from the date of this annual report. The extent of the future impact of the COVID-19 pandemic on our business and results of operations is still uncertain.
Today, while our offices and manufacturing facilities remain open and business activities have fully resumed, we are closely monitoring all developments and are following the guidelines issued by local and national health authorities. We strive to accommodate and support our employees, while also maintaining our commitments to our customers. We expect the aforementioned negative impact will gradually mitigate in the future as the COVID-19 outbreak continues to become more controlled in China. Nevertheless, due to the uncertainty on future developments, which cannot be predicted with confidence at this time, we are not able to assess the overall or long-term effect the COVID-19 outbreak may have on our financial results and business operations.
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We Are Currently Facing Challenges to Recover Our Production and Normal Business Operations and Resolve Existing Legal Proceedings
Due to the sharp rise in market price of raw materials, the lack of operational efficiency of our production facilities and our inability to make bank loan repayment to financial institutions upon maturity, we temporarily suspended our production and normal business operations and we were involved in certain legal proceedings beginning in November 2019. The COVID-19 outbreak and spread further disrupted our business activities during the period from the beginning of 2020 up to May 2020 when we resumed our business operations. In order to diversify our revenue streams, on October 31, 2021, we acquired 51% equity interests of Far Ling’s Inc. and 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. This resulted in an increase of $0.6 million in food service revenue. However, our revenues generated are not currently sufficient and our business operations may be further affected by the ongoing COVID-19 pandemic. Our net losses were $874,668 in 2020 and $6,715,958 in 2021. Although we are currently trying to implement our business strategies in order to manage the future growth of our business, we cannot assure our current efforts may achieve the anticipated results and we may continue to incur operating losses in the near term. We cannot guarantee that going forward we will operate profitably. In order to achieve profitability, among other factors, management must successfully execute our growth and operations in the markets on which we are focused. If we are unable to successfully take necessary steps, we may be unable to sustain or increase our profitability in the future.
We terminated the lease of the Jiaozhou plant in 2021, and as of December 31, 2021, we had only one production base with a daily production capacity of 4.6 tons. The facility owned by us was frozen by the court as a result of our pending legal proceedings which led to our inability to sell, transfer or disposal of the facility but we can still use the production lines and facilities to manufacture our pet food products if we have sales orders from customers. Due to decreased sales orders as affected by COVID-19, plus the termination of the lease of Jiaozhou factory and our recent challenges, our total production capacity decreased by 14.81% from 5.4 tons per day in 2020 to 4.6 tons per day as of the date of this filing.
The market for pet food is characterized by strong competition, evolving industry standards, fast change in customer preference, new product introductions, and evolving methods of developing and maintaining products. Our operating results depend on our ability to develop and introduce high quality new products and to maintain our customer base and sales network. If we fail to accurately predict our customers’ changing needs, our business could be harmed. In order to recover our business operations, we may need to commit significant resources, including monetary investments and developing new products before knowing for sure whether such investments will result in products the intended end users’ will accept. Similarly, our business could be harmed if we fail to develop or fail to develop in a timely fashion. In addition, our business could be adversely affected in periods surrounding the launch of new products if customers delay their purchasing decisions to evaluate the new product offerings. Furthermore, we may not execute successfully on our vision or strategy because of challenges with regard to product planning and timing, technical hurdles that we fail to overcome in a timely fashion, or a lack of necessary resources.
We face substantial challenges in our effort to resume normal business activities. Our future growth will place a significant strain on our sales and marketing capacities, administrative and operating infrastructure, manufacturing facilities and other resources. To effectively manage additional challenges brought on by the global spread of COVID-19, we need to evaluate and identify suitable strategic or acquisition opportunities, complete such transactions on commercially favorable terms, or successfully integrate business operations, infrastructure and management philosophies of acquired businesses and companies, resolve the substantial litigation and judgements to which we are subject and raise substantial capital. There may be particular complexities, regulatory or otherwise, associated with our expansion into new markets, and our strategies may not succeed beyond our current markets. If we are unable to effectively address these challenges, our ability to execute acquisitions as a component of our long-term strategy will be impaired, which could have an adverse effect on our growth or our ability to function as a going concern. We also need to expand our customer base, refine our operational, financial and management controls and reporting systems and procedures. If we fail to efficiently manage this expansion of our business, our costs and expenses may increase more than anticipated and we may not successfully attract a sufficient number of customers in a cost-effective manner, respond to competitive challenges, or otherwise execute our business plans. In addition, we may, as part of carrying out our growth strategies, adopt new initiatives to implement new pricing models and strategies. We cannot assure you that these initiatives may achieve the anticipated results.
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Our ability to effectively implement our strategies and manage future growth of our business will depend on a number of factors, including our ability to: (i) effectively market our products to potential customers; (ii) develop new products to appeal to existing customers;(iii) effectively recruit, train and motivate a large number of new employees; (iv) improve our operational, financial and management controls and efficiencies; (v) protect and further develop our intellectual property rights; (vi) raise substantial amounts of capital; and (vii) make sound business decisions. These activities require significant capital expenditures and investment of valuable management and financial resources, and our growth will continue to place significant demands on our management. There are no guarantees that we will be able to effectively manage any future growth in an efficient, cost-effective and timely manner, or at all. If we do not effectively manage the growth of our business and operations, our reputation, results of operations and overall business and prospects, and our ability to continue as a going concern could be negatively impacted.
As of December 31, 2021, we had the following pending lawsuits, legal claims, proceedings and arbitrations:
| ● | Legal claims by vendors and lenders. Since November 2019, the Company has been a subject of 57 lawsuits by its raw material supplies, printing and packaging supplies, transportation companies and other vendors. The claims raised in these lawsuits pertain to the Company’s non-payment of various invoices for supplier and vendor services rendered, with related interest and costs. As of the date of this report, in 44 cases, the creditors have reached civil conciliation letters with our company, and in 9 cases, the court has issued civil judgments. With respect to the remaining 4 cases, the plaintiffs withdrew the lawsuit because of lack of evidence. The mediation and judgment involved total claims of RMB13.86 million (USD$2.12 million). Such liabilities have been accrued and reflected in the consolidated financial statements for the year ended December 31, 2020. On March 13, 2021, a land use right and a factory building on the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were auctioned by the court for $5,098,461 (RMB33.14 million). On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings. |
On December 2, 2019, Qingdao Lingang Real Estate Co., Ltd. (“QLRE”), filed a civil lawsuit against Qingdao Tiandihui Foodstuffs Co., Ltd., Rongfeng Cui, and Yanjuan Wang. The Company entered into a loan agreement with QLRE in 2018 and borrowed RMB20 million (USD3.18 million) from QLRE in connection with purchase of a factory. The loan was guaranteed by Rongfeng Cui and his wife, Yanjuan Wang. The Company failed to make repayment to QLRE. On March 4, 2020, the Court ordered that: (i) the Company repay QLRE the principal amount of RMB20 million plus interest of RMB 550,000 accrued as of October 31, 2019. The court ordered that the payment be made within 10 business days after the effective date of the court ruling, and also ordered that the Company pay interest at the rate of 2% per month for the period from the date of November 1, 2019 to the date of full discharge of the debt, as well as the litigation fee of RMB77,000 (USD$11,933). If the debt is not repaid within the required timeframe, interest shall be doubled from the effective date of court order until the date of full discharge of the debt. As of December 31, 2021, we have not made the loan repayment to QLRE. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
On January 15, 2020, China Construction Bank (“CCB”), initiated a civil claim against Qingdao Tiandihui Foodstuffs Co., Ltd., Rongfeng Cui, and Yanjuan Wang. The plaintiff alleged that it executed a loan agreement with the Company in the amount of RMB19.93 million (USD3.08 million) for the purchase of manufacturing facility and the associated land use right located at Lingang Economic Development Zone, Huangdao District, Qingdao, Shandong Province, People’s Republic of China. Rongfeng Cui and his wife, Yanjuan Wang, co-signed for this loan as personal guarantors subject to joint and several liability in connection with the loan. The loan with CCB was guaranteed by Rongfeng Cui and Yanjuan Wang, and secured by a pledge by the aforementioned manufacturing facilities and associated land use right. On April 14, 2020, the Court has ordered among other things that the Company repay RMB19.93 million (USD3.25 million) of principal and accrued interest to CCB, and to sell the mortgaged property. On March 13, 2021, the land and factory buildings on the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were auctioned by the court for $5,098,461 (RMB33.14 million), of which, $3,192,827 (RMB21.14 million) has been used to repay loan principal and accrued interest to CCB. The repayment has been completed by April 2021.
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On November 11, 2019, Shanghai Pudong Development Bank Qingdao Branch(“SPDB”), filed a civil lawsuit against Qingdao Tiandihui Foodstuffs Co., Ltd., Qingdao Saike Environmental Technology Co., Ltd. (“Saike”), Qingdao Gaochuang Technology Finance Guarantee Co., Ltd. (“Gaochuang”), Rongfeng Cui, and Yanjuan Wang. In 2018, the Company entered into agreements with SPDB to borrow an aggregate of RMB4.85 million (USD0.75 million) from SPDB for working capital purpose. The Company failed to repay the debt upon maturity. The borrowing from SPDB was guaranteed by Rongfeng Cui and Yanjuan Wang, and secure by a pledge of land use right and real property of Saike and certaim real property owned by Rongfeng Cui and Yanjuan Wang. The Company failed to make repayment to SPDB on the maturity date. On October 24, 2020, the court has ordered the Company to repay SPDB the principal owed plus interest at the annual interest rate of 18.25%. The payment was required to be made within 10 business days after the effective date of the order. If the debt is not paid within the required timeframe, interest shall be doubled from the effective date of the court order until the date of full discharge of the debt. The Company is also required to pay litigation fees in the amount of RMB156,880 (USD 24,312). As of December 31, 2021, we have not made the repayment to SPDB. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd. and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
On December 10, 2019, Qingdao Gaochuang Technology Finance Guarantee Co., Ltd. (“Gaochuang”), initiated a civil claim against Qingdao Tiandihui Foodstuffs Co., Ltd., Qingdao Saike Environmental Technology Co., Ltd. (“Saike”), Rongfeng Cui, and Yanjuan Wang. In 2018, the Company entered into agreements with SPDB for bank acceptance draft and Gaochuang executed the guarantee of SPDB bank acceptance deposit on behalf of the Company in the amount of RMB 1.2 million (USD 0.19 million). The Company failed to repay the RMB 1.2 million ($0.19 million) deposit to Gaochuang upon the bank acceptance draft maturity date. The deposit made by Gaochuang was guaranteed by certain of the Company’s fixed assets and patents. On December 29, 2020, the court ordered the Company to repay the RMB 1.2 million ($0.19 million) deposit to Gaochuang and the interest at the annual interest rate of 4.15%. The payment was required to be made within 10 business days after the effective date of the court order. The court order also provides that if the debt is not paid within the required timeframe, interest shall be doubled from the effective date of court order until the date of full discharge of the debt. The court order also obligate the Company to bear litigation fees of RMB83,127(USD 12,882). As of December 31, 2021, we had not made the repayment to Gaochuang. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
On May 6, 2020, the Postal Savings Bank of China Limited Weihai Road Sub-branch of Qingdao North District (hereinafter referred to as Postal Savings) filed a civil lawsuit against Qingdao Tiandihui Foodstuffs Co., Ltd., Rongfeng Cui and Yanjuan Wang. The Company entered into two loan agreements with Postal Savings in 2018 and 2019, respectively, and borrowed RMB9.9 million ($1.53 million) in aggregate. The loans were guaranteed by Rongfeng Cui and Yanjuan Wang, and were secured by a pledge of real property owned by the Company and real property owned by Rongfeng Cui. The Company failed to pay its debt to Postal Savings when it was due. In June 2020, the court ordered the Company to repay to Postal Savings the principal and interest under the loan, and to reimburse Postal Savings for the litigation fees incurred by Postal Savings. If the court decide to auction the pledged real properties, Postal Savings shall have the priority right of the repayment from the auction proceeds. As of December 31, 2021, we had not made the repayment to Postal Savings. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
| ● | Labor arbitration claims by former employees. Due to decreased business scale and the impact of COVID-19, the Company dismissed certain employees in 2019 and 2020 and only maintained 42 full-time employees, during fiscal year 2021 and as of December 31, 2021. As a result of the employee layoffs, certain of the Company’s former employees commenced arbitration proceedings against the Company under applicable labor rules and standards, claiming, among others, lost wages, severance payments and/or social security obligations totaling RMB3.68 million (USD0.56 million). There were 98 labor arbitrations, of which 6 cases has been settled and the trial court has issued decisions on the remaining 92 cases. The Company accrued approximately $0.4 million contingent liabilities in other current liabilities on the consolidated balance sheet as of December 31, 2019 and recognized contingent losses of approximately $0.4 million for the year ended December 31, 2019. Upon the issuance of rulings in these cases, the Company further accrued approximately $0.1 million wage and/or severance payables in other current liabilities on the consolidated balance sheet as of December 31, 2020 and recognized losses of approximately $0.1 million for the year ended December 31, 2020. On March 13, 2021, the land and factory buildings above the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were actioned by the court for $5,098,461 (RMB 33.14 million). In 2021, we have paid RMB3.73 million to substantially settle the labor arbitration cases with our former employees. We only have RMB0.5 million ($0.08 million) remaining severance payables to them as of December 31, 2021, which we anticipate to fully settle by the end of 2022. Failure to successfully settle the claims could impair our ability to continue as a going concern. |
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Nasdaq Compliance Confirmation and a Panel Monitor
On February 23, 2022, the Company received a notification letter from Nasdaq Listing Qualifications advising the Company that based upon the closing bid price for the Company’s common shares for the past 30 consecutive business days, the Company no longer met the minimum $1.00 per share Nasdaq continued listing requirement set forth in Nasdaq Listing Rule 5550(a)(2). The notification also stated that the Company would be provided 180 calendar days, or until August 22, 2022, to regain compliance with the foregoing listing requirement. To do so, the bid price of the Company’s common stock must close at or above $1.00 per share for a minimum of 10 consecutive business days prior to that date.
If the Company does not regain compliance by the compliance deadline, the Company may be eligible for additional time to regain compliance. To qualify, the Company will be required to meet the continued listing requirement for market value of publicly held shares and all other initial listing standards for The Nasdaq Capital Market, with the exception of the bid price requirement, and will need to provide written notice of its intention to cure the deficiency during the second compliance period, by effecting a reverse stock split, if necessary. If the Company meets these requirements, the Nasdaq staff will inform the Company that it has been granted an additional 180 calendar days. However, if it appears to the Nasdaq staff that the Company will not be able to cure the deficiency, or if the Company is otherwise not eligible, the staff will provide notice that its securities will be subject to delisting. There is no assurance that the Company will remain in compliance with the continued listing criteria. If it fails to remain in compliance its securities could be delisted. If the Company is delisted from Nasdaq, its common shares may be traded over-the-counter on the OTC Bulletin Board or in the “pink sheets” if one or more market makers seeks and obtains approval by the Financial Industry Regulatory Authority to continue quoting in the Company’s common shares.
However, if our shares are listed on the NASDAQ Capital Market but are delisted from the NASDAQ Capital Market at some later date, our shareholders could find it difficult to sell our shares. In addition, if our common shares are delisted from the NASDAQ Capital Market at some later date, we may apply to have our common shares quoted on the Bulletin Board or in the “pink sheets” maintained by the National Quotation Bureau, Inc. The Bulletin Board and the “pink sheets” are generally considered to be less efficient markets than the NASDAQ Capital Market. In addition, if our common shares are not so listed or are delisted at some later date, our common shares may be subject to the “penny stock” regulations. These rules impose additional sales practice requirements on broker-dealers that sell low-priced securities to persons other than established customers and institutional accredited investors and require the delivery of a disclosure schedule explaining the nature and risks of the penny stock market. As a result, the ability or willingness of broker-dealers to sell or make a market in our common shares might decline. If our common shares are delisted from the NASDAQ Capital Market at some later date or become subject to the penny stock regulations, it is likely that the price of our shares would decline and that our shareholders would find it difficult to sell their shares.
Registered Direct Offerings
On September 30, 2021, the Company and certain investors entered into a securities purchase agreement in connection with a registered direct offering, pursuant to which the Company agreed to sell to the investors an aggregate of 10,000,000 of its common shares and warrants exercisable for an aggregate of 20,000,000 of its common shares. The common share purchase price is $0.89 per share and warrant purchase price is $0.01 per warrant. The warrants are exercisable immediately as of the date of issuance at an exercise price of $2.06 per share and expire twenty-four (24) months from the date of issuance. The warrants may also be exercised on a cashless basis. The Company may compel the exercise of the warrants if the closing price of the Company’s common shares exceeds $6.00 for ten (10) consecutive trading days commencing six (6) months after issuance. The exercisability of the warrants may be limited if, upon exercise, the holder or any of its affiliates would beneficially own more than 9.99% of the Company’s common shares. The registered direct Offering was closed on September 30, 2021 and the Company received approximately $8.2 million net proceeds from the issuance of 10,000,000 common shares to investors, after deducting placement agent fees and estimated offering expenses.
On November 3, 2021, the Company and certain investors entered into a securities purchase agreement in connection with a registered direct offering, pursuant to which the Company agreed to sell to the investors an aggregate of 15,000,000 of its common shares and warrants exercisable for an aggregate of 30,000,000 of its common shares. The common share purchase price is $0.64 per share and arrant purchase price is $0.01 per warrant. The warrants are exercisable immediately as of the date of issuance at an exercise price of $1.47 per share and expire twenty-four (24) months from the date of issuance. The warrants may also be exercised on a cashless basis. The Company may compel the exercise of the warrants if the closing price of the Company’s common shares exceeds $6.00 for ten (10) consecutive trading days commencing six (6) months after issuance. The exercisability of the warrants may be limited if, upon exercise, the holder or any of its affiliates would beneficially own more than 9.99% of the Company’s common shares. The registered direct offering was closed on November 3, 2021 and the Company received approximately $8.9 million net proceeds from the issuance of 15,000,000 common shares to investors, after deducting placement agent fees and estimated offering expenses.
In connection with the Company’s registered direct offering as consummated on September 30, 2021 and November 3, 2021, the Company agreed to sell to the investors warrants exercisable for an aggregate of 50,000,000 of its common shares, with warrant purchase price of $0.01 per warrant. As of December 31, 2021, 50,000,000 warrants were issued and outstanding and 24,423,626 warrants have been exercised on the cashless basis. Subsequently in January 2022, the investors elected to exercise additional 21,886,536 warrants at cashless basis. The Company did not receive any proceeds from such transaction.
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Acquisition of the restaurant business
On October 31, 2021, the Company completed the acquisition of 51% equity interests of Far Ling’s Inc. and 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. The Company believes that the acquisition brings new revenue source for the Company going forward.
Overview
We specialize in the development, manufacturing and sale of a variety of pet food products under multiple brands that are well-established and recognizable by consumers in the PRC, Asia, Europe and North America. We produce and offer more than 200 different products to our customers. We adjust our production level based on sales orders received from customers. Our current product offerings are classified into 6 product categories: pet chews, dried pet snacks, wet canned pet food, dental health snacks, and baked pet biscuits (as well as non-food items like dog leashes, pet toys, etc.), and the other pet food products. We sell our products to customers in the PRC, Asia, Europe and North America.
Product research and development plays an important role in our business. Our production processes are developed based upon a number of in-house developed technologies. The primary focus of such technologies is driven by customer needs, which allows us to maintain an effective market-oriented research and development model. We have been granted certain invention and utility model patents. Because of our in-depth research and development efforts and our proprietary recipes, cooking techniques and packaging developed over the last decade, we are able to provide high quality pet food products to consumers throughout the world.
We have a standard construction in accordance with the high quality food production factory, the factory is located in convenient transportation of the coastal city - Qingdao city, Shandong province.
As a result of our suspension of our production in November 2019 which was further negatively impacted by the COVID-19 outbreak and spread in 2020 and 2021, we have reduced our number of employees in response to current challenges. As of December 31, 2020, we have employed approximately 42 full-time employees at our facilities. With the exception of our subsidiary’ offices located in Beijing, all of our production, administration, sales/marketing and customer service facilities covering the PRC and overseas markets are located in Shandong Province, PRC.
Our current workforce consists of employees who are knowledgeable about animal nutrition, and employees with strong sales and marketing skills. Our management team is comprised of an experienced group of executives, many of whom have years of operating experience in their respective departments.
Starting from 2013, we have been utilizing an online sale and multi-brand, multi-store brand sale strategies to expand our market coverage. We use Tmall.com, JD.com and 1688 as our marketing platforms and establish a comprehensive network of various brand shops in China.
Our sales and marketing team consists of an original design manufacturer (ODM) domestic (PRC) marketing group. Our business model relies on our strength to provide our customers with personalized and customized products. As a part of our ODM production process, we continuously accumulate a large amount of market information about our customers, in the PRC and abroad, which helps us to make appropriate product offering decision.
We operate our pet food business in China through our wholly-owned subsidiaries, Tiandihui, Tiandihui Pet Foodstuffs, Tiandihui Foodstuffs Sales and Chongai Jiujiu.
On October 31, 2021, we completed the acquisition of 51% equity interests of Far Ling’s Inc. and 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. We believe that the acquisition brings new revenue source (i.e, restaurant revenue) for us going forward.
Revenues
We derive our revenues from wholesale and retail of our pet food products, mainly through our overseas and domestic distribution agents, and online sales through various electronic commerce platforms. Revenue consists of the invoiced value for the sales, net of value-added tax (“VAT”), business tax, applicable local government levies and returns.
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The following factors affect the revenues we derive from our operations.
COVID-19 Impact: In December 2019, a novel strain of coronavirus was reported in Wuhan, China. On March 11, 2020, the World Health Organization categorized it as a pandemic. In response to the COVID-19 outbreak, governments around the global have implemented measures such as lockdowns, travel restrictions, and closures of businesses and schools. As a result of the COVID-19 outbreak, we have experienced suspension of operations, interruption of supply chain and decline in sales orders by our customers. Our businesses, results of operations, financial position and cash flows were adversely affected in fiscal year 2021, including but not limited to material negative impact to our total revenues, slower collection of account receivables and significant disruptions of our supply chains. On October 31, 2021, we acquired 51% equity interests of Far Ling’s Inc. and 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. This resulted in an increase of $0.6 million in food service revenue. However, our revenues generated are not currently sufficient and our business operations may be further affected by the ongoing COVID-19 pandemic. Although we resumed our pet food business operations since May 2020 and we are currently trying to implement our business strategies in order to manage the future growth of our business, we cannot assure our current efforts may achieve the anticipated results and we may continue to incur operating losses in the near term. We conduct our restaurant business in the United States. In response to the Covid-19 outbreak, many state and local authorities had mandated the temporary closure of non-essential businesses and dine-in restaurant activity or limited indoor dining capacities. COVID-19 and the government measures taken to control it have caused a significant disruption to our business of Bo Lings. As of the filing date of this Annual Report on Form 20-F, we had Bo Lings operating at 100% indoor dining capacity. However, there can be no assurance that developments with respect to the COVD-19 pandemic and government measures taken to control it will not adversely affect our operations and financial results. We cannot guarantee that going forward we will operate profitably. In order to achieve profitability, among other factors, management must successfully execute our growth and operations in the markets on which we are focused. If we are unable to successfully take necessary steps, we may be unable to sustain or increase our profitability in the future.
Our ability to resolve our debt burden and limited production capacity to support our future revenue growth. We are currently facing challenges to settle defaulted loan payments to various financial institutions mentioned above. Our pet food manufacturing capacity also decreased from 8.0 tons per day in 2019 to 4.6 tons per day as of the date of this filing and one of the our manufacturing facilities was frozen by the court order. Although we still use this frozen manufacturing facility to produce pet food products whenever we receive customer orders, we cannot assure whether the court will take additional actions or not to auction this facility and request us to use the auction proceeds to repay our debt. Our future market expansion, business recovery and revenue growth may need significant amount of capital expenditure. If we cannot resolve current working capital shortage, debt burden and limited production capacity, we may not be able to support our future revenue growth.
Our ability to maintain our competitive advantages. We currently provide more than 200 different variety of pet snack products to our targeted customers to satisfy their needs. We focus on the needs of the market and provide our customers with personalized and customized products. However, the market conditions and consumer preferences change rapidly. If we fail to maintain our reputation and competitive advantages, customers demand for our products could decline.
Competition. The market of pet food is very competitive. The number of pet food manufacturers is increasing due to the growth of actual and predicted demand for pet food products and the relatively low barriers to entry. Moreover, Our PRC market is characterized by price competition, product quality and the presence of a number of medium to large companies. We are subject to pricing pressure and may experience a decline in average selling prices for our products. We compete with a significant number of companies of varying sizes, including divisions or subsidiaries of larger companies who may have greater financial resources and larger customer bases than we have. Some of our current or potential competitors may have significantly greater financial resources and expertise in research and development, manufacturing, and marketing pet products than we do, they may also be able to identify and adapt to changes in consumer preferences more quickly than us, these factors could result in our competitors establishing a strong market position before our products are able to enter the potential market. Additionally, technologies developed by our competitors may render our product candidates uneconomical or obsolete. If we do not compete effectively, our operating results could be harmed.
Some of our competitors have established more prominent market positions. We believe that our major competitors include the following companies: Yantai China Pet Foods Co., Ltd., Wenzhou Peidi Pet Products Co., Ltd., Gambol Pet Group, and Guaibao Pet Food Group Co., Ltd.
Our restaurant business is also highly competitive. We face sustained, intense competition from traditional, fast casual and other competitors, which may include many non-traditional market participants such as convenience stores, grocery stores, coffee shops and online retailers. We expect our environment to continue to be highly competitive, and our results in any particular reporting period may be impacted by a contracting IEO segment or by new or continuing actions, product offerings or consolidation of our competitors and third-party partners, which may have a short- or long-term impact on our results. We compete on the basis of product choice, quality, affordability, service and location. In particular, we believe our ability to compete successfully in the current market environment depends on our ability to improve existing products, successfully develop and introduce new products, price our products appropriately, deliver a relevant customer experience, manage the complexity of our restaurant operations, manage our investments in technology and modernization, and respond effectively to our competitors’ actions or offerings or to unforeseen disruptive actions. There can be no assurance these strategies will be effective, and some strategies may be effective at improving some metrics while adversely affecting other metrics, which could have the overall effect of harming our business.
Expansion of E-commerce sales. With the popularization and development of Internet, E-commerce accounts for an increasing proportion in the industry. If we fail to expand our E-commerce business, our total revenue could continue to decrease. E-commerce sales in 2021, 2020 and 2019 were $34,590, $16,708 and $83,779, accounting for 3%, 2% and 1% of total revenue, respectively. Although we suspended our e-commerce business in 2019, we are planning to recommence our domestic e-commerce business in the near future.
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Loss of key personnel. Our revenue was derived from our competitive advantages in our products. We rely heavily on the expertise and leadership of our senior management to maintain our core competence. The loss of the service of any of our key personnel could adversely affect our business. We have obtained non-compete agreements and confidentiality agreements from our scientist and technique staffs in our research and development and manufacturing departments.
Potential trade protection action. Trade protectionism actions in the United States, the European Union or elsewhere around the world could result in additional duties and tariffs on the importation of pet food from China to each respective national market. Any determination of duties and tariffs against importation of our modules into the United States and Europe could adversely affect our ability to sell products in these countries that could impact our sales, business operations, competitiveness, and profitability.
Group boycott initiated by the local pet food association. We continue to rely on the local agents to expand our sales in overseas market. It has been our experience that pet food associations in certain countries are influential in local markets. It is possible that these associations may boycott our pet snack products for the reasons such as low prices and other market specific concerns. If and to the extent that happens, our revenues will be adversely affected.
Macro-economic conditions. Our business, financial condition and results of operations may be materially adversely affected by a challenging economic climate, including adverse changes in interest rates, volatile commodity markets and inflation, contraction in the availability of credit in the market and reductions in consumer spending. A macroeconomic downturn, which decreases the disposable personal income, may contribute to decreased sales of our pet food products and our restaurant business.
Costs and Expenses
Our costs and expenses primarily include the following:
Costs of revenues. Cost of revenues of our pet food business consists primarily of direct raw materials, direct payroll of workshop staff, utility and supply costs consumed in the manufacturing process, manufacturing labor, depreciation expense and overhead expenses necessary to manufacture finished goods as well as distribution costs such as inbound freight charges. Cost of revenues of our restaurant business consist primarily of food and packaging costs, payroll and employee benefit costs, store lease and occupancy costs and depreciation and amortization costs, etc.
Selling, general and administrative expenses. Selling, general and administrative expenses consist primarily of compensation expense for our corporate staff in supporting departments, communication costs, gasoline, shipping and handling cost, welfare expenses, education expenses, professional fees (including consulting, audit and legal fees), travel and business hospitality expenses.
Income tax expense. We account for income taxes under the provisions of Section 740-10-30 of the FASB Accounting Standards Codification, which is an asset and liability approach that requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been recognized in the financial statements or tax returns.
The following factors affect our cost of revenues and expense.
Price fluctuation of raw materials. For our pet food business, the raw materials purchase costs significantly impact our cost of goods sold. Any significant fluctuation of the market price of raw materials may negatively affect our operating results. Even if our current materials supply is relatively stable, we could be impacted by material price fluctuation in coming years. For our restaurant business, food and beverage purchase costs and labor costs also significantly impact our costs of goods sold.
Our ability to resolve our current poor credit resulting from our legal proceedings with our vendors and suppliers. Our cost of revenues is impacted by whether we can negotiate favorable purchase price and credit terms with our suppliers and vendors, including but not limit to raw material supplies, printing and packaging supplies, transportation companies and other vendors. Since November 2019, we have been a subject of 57 lawsuits by our suppliers and vendors. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
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Prevailing salary levels. Our cost of revenues is impacted by prevailing salary levels. Although we have not been subject to significant wage inflation, a significant increase in the market rate for wages could harm our operating results and our operating margin. Our ability to attract, retain, and expand our senior management and our professional and technical staff is an important factor in determining our future success. The market for qualified scientists and researchers is competitive. From time to time, it may be difficult to attract and retain qualified individuals with the required expertise at a fair wage. An increase in compensation of our scientists and researchers may increase our operating cost.
Depreciation. Our depreciation expenses are mainly driven by the net value of machinery equipment, motor vehicles, buildings, lease restaurant store and other items. Depreciation of property, plant and equipment is calculated based on cost, less their estimated residual value, if any, using the straight-line method over estimated useful life from 5 years to 50 years. Any change of the depreciation accounting policy or impairment of our property may affect our operating results.
Shipping and handling expense. Our shipping and handling expense includes domestic freight, oversea freight, domestic express shipping fee. In order to reduce shipping and handling cost, we are trying to negotiate with and establish closer cooperation with several shipping companies providing express shipping services in order to lock favorable fee rates and reduce the domestic express fees.
Research and Development expense.
Although we did not have research and development spending in 2020 and 2021, looking forward, in order to diversify our product offering to meet customer demands in the future, we may incur additional R&D expenses in the coming years to maintain our competitive advantage.
Results of Operations
For the years ended December 31, 2021, 2020 and 2019
| December 31 | 2021 vs | 2020 vs | ||||||||||||||||||
| 2021 | 2020 | 2019 | 2020 | 2019 | ||||||||||||||||
| $ | $ | $ | ||||||||||||||||||
| Net revenues | 1,091,889 | 815,225 | 12,455,414 | 29.82 | % | -93.45 | % | |||||||||||||
| Net revenues-related parties | - | - | 192,841 | 100 | % | -100 | % | |||||||||||||
| Cost of revenues | 1,112,463 | 857,060 | 13,992,499 | 29.80 | % | -93.87 | % | |||||||||||||
| Cost of revenues-related parties | - | - | 178,636 | N/A | -100 | % | ||||||||||||||
| Gross loss | (20,574 | ) | (41,835 | ) | (1,522,880 | ) | -50.82 | % | -97.25 | % | ||||||||||
| Gross margin | -1.88 | % | -5.13 | % | -12.04 | % | N/A | |||||||||||||
| Selling expense | 75,944 | 117,993 | 920,237 | -35.64 | % | -87.18 | % | |||||||||||||
| R&D expense | - | - | - | N/A | N/A | |||||||||||||||
| General and administrative expenses | 3,944,709 | 1,766,109 | 3,702,035 | 123.36 | % | -52.29 | % | |||||||||||||
| Impairment of long-lived assets other than goodwill | 217,257 | - | 813,344 | 100 | % | -100 | % | |||||||||||||
| Impairment of goodwill | 355,570 | - | - | 100 | % | N/A | ||||||||||||||
| Loss from operations | (4,614,054 | ) | (1,925,937 | ) | (6,958,496 | ) | -139.57 | % | -72.32 | % | ||||||||||
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Revenues.
Our revenue was $1,091,889, $815,225 and $12,648,255 for the years ended December 31, 2021, 2020 and 2019, respectively. Our total revenue increased by $276,664 or 33.93% when comparing 2021 to 2020, and decreased by $11,833,030 or 93.55% when comparing 2020 to 2019.
The following table displays our revenue by different marketing channels.
| December 31 | 2021 vs | 2020 vs | ||||||||||||||||||
| 2021 | 2020 | 2019 | 2020 | 2019 | ||||||||||||||||
| $ | $ | $ | ||||||||||||||||||
| Oversea sales | 134,896 | 226,385 | 9,995,136 | -40 | % | -98 | % | |||||||||||||
| Domestic sales | 319,061 | 574,921 | 2,711,445 | -45 | % | -79 | % | |||||||||||||
| Electronic commerce sales | 34,590 | 16,708 | 83,779 | 107 | % | -80 | % | |||||||||||||
| Restaurant revenue | 606,463 | - | - | 100 | % | - | ||||||||||||||
| Less: Sale tax and addition | (3,121 | ) | (2,789 | ) | (142,105 | ) | 12 | % | -98 | % | ||||||||||
| Total revenues | 1,091,889 | 815,225 | 12,648,255 | 34 | % | -94 | % | |||||||||||||
Year Ended December 31, 2021 Compared to Year Ended December 31, 2020
For the year ended December 31, 2021, for revenue generated from pet food sales, our overseas and domestic sales decreased by $91,489 and $255,860, respectively, and our e-commerce sales increased by $17,882 from the year ended December 31, 2020. However, our revenue from restaurant business in the United States increased by $606,463 or 100%. As a result, our total revenue increased by $276,664 or 34% when comparing 2021 to 2020.
The decrease of pet food revenue in 2020 was mainly due to the following facts: (1) Due to the continuous development of the COVID-19, we had to close the factory and stop production for a period of time, which caused the delay of orders and affected customers’ trust in us. Therefore, some customers canceled their orders to the company, and the company’s sales revenue decreased greatly; (2) The purchasing cost of raw materials required for production has risen to a certain extent; (3) stop taking unprofitable orders.
On the other hand, our revenue from restaurant business increased by $606,463 or 100% when comparing 2021 to 2020. On October 31, 2021, we acquired 51% equity interests of Far Ling’s Inc. and 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. Revenue from our restaurant business primarily include food and beverage sales of $606,463 for the last two months in 2021 after we acquired the business on October 31, 2021.
As a result of the above, our total revenues for the fiscal year 2021 increased as compared with the fiscal year 2020.
Year Ended December 31, 2020 Compared to Year Ended December 31, 2019
For the year ended December 31, 2020, our overseas sales, domestic sales and E-commerce sales decreased by $9,768,751, $2,136,524 and $67,071, respectively, compared with the year ended December 31, 2019.
The decrease of revenue in 2020 was mainly due to the following facts: (1) decrease in sales orders due to our uncompetitive sales price which became less attractive to our customers; (2) partially suspension of our overseas E-commerce business due to the estimated gross loss; (3) suspension of our production and operations in November 2019 due to our default on loan repayments to financial institutions, claims from our suppliers and creditors and labor arbitration derived from our reduction in the number of employees. The COVID-19 outbreak and spread further caused disruption in our supply chain, transportation and our sales activities from the beginning of 2020 to May 2020. As a result, we had the inability to fulfill customer orders on a timely manner and we received reduced sales orders from our customers and our sales volume significantly decreased in 2020 as compared to 2019.
As a result, our total revenues for the fiscal year 2020 decreased significantly as compared with the fiscal year 2019.
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The revenue generated from different product lines are set forth as following:
| December 31 | 2021 vs | 2020 vs | ||||||||||||||||||
| 2021 | 2020 | 2019 | 2020 | 2019 | ||||||||||||||||
| $ | $ | $ | ||||||||||||||||||
| Pet chews | 46,112 | 59,096 | 6,469,755 | -22 | % | -99 | % | |||||||||||||
| Dried pet snacks | 293,325 | 317,392 | 4,617,742 | -8 | % | -93 | % | |||||||||||||
| Wet canned pet food | 10,760 | 84,117 | 1,310,001 | -87 | % | -94 | % | |||||||||||||
| Dental health snacks | 6,127 | 19,915 | 305,452 | -69 | % | -93 | % | |||||||||||||
| Baked pet biscuits | - | 3,132 | 87,410 | -100 | % | -96 | % | |||||||||||||
| Restaurant revenue | 606,463 | - | - | 100 | % | |||||||||||||||
| Others | 132,223 | 334,362 | - | -60 | % | 100 | % | |||||||||||||
| Less: Sale tax and addition | (3,121 | ) | (2,789 | ) | (142,105 | ) | 12 | % | -98 | % | ||||||||||
| Total revenues | 1,091,889 | 815,225 | 12,648,255 | 34 | % | -94 | % | |||||||||||||
Year Ended December 31, 2021 Compared to Year Ended December 31, 2020
Our total revenue increased by $276,664 or 34% when comparing 2021 to 2020, among which, revenue generated from pet chews decreased by $12,984 or 22%, revenue from dried pet snacks decreased by $24,067 or 8%, revenue generated from wet canned pet foods decreased by $73,357 or 87%, from the year ended December 31, 2020 to the year ended December 31, 2021, respectively. In addition, revenue generated from dental health snacks decreased by $13,788 or 69%, from the year ended December 31, 2020 to the year ended December 31, 2021. The decrease in pet food sales was primarily due to our inability to fulfill customer orders on a timely basis due to disruption of supply chain and logistics caused by the COVID, as well as decrease of sales order, and our unfavorable selling price which led to our products became less attractive to customers. On the other hand, on October 31, 2021, we acquired 51% equity interests of Far Ling’s Inc and 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. This resulted in an increase of $606,463 in restaurant revenue when we sold food and beverage to customers.
Year Ended December 31, 2020 Compared to Year Ended December 31, 2019
Our total revenue decreased by $11,833,030 or 94% when comparing 2020 to 2019, among which, revenue generated from pet chews decreased by $6,410,659 or 99%, revenue from dried pet snacks decreased by $4,300,350 or 93%, revenue generated from wet canned pet foods decreased by $1,225,884 or 94%, from the year ended December 31, 2019 to the year ended December 31, 2020, respectively. In addition, revenue generated from dental health snacks decreased by $285,537 or 93%, from the year ended December 31, 2019 to the year ended December 31, 2020. The decrease was primarily due to decreased sales orders received and decreased sales volumes as affected by the COVID-19 outbreak and spread, which caused the suspension of our factory and business operations until May 2020, and our inability to fulfill customer orders on a timely basis due to disruption of supply chain and logistics caused by the COVID, as well as decrease of sales order, and our unfavorable selling price which led to our products became less attractive to customers.
The revenue generated from different countries are set forth as following:
| December 31 | 2021 vs | 2020 vs | ||||||||||||||||||
| 2021 | 2020 | 2019 | 2020 | 2019 | ||||||||||||||||
| $ | $ | $ | ||||||||||||||||||
| South Korea | 37,320 | 34,378 | 1,335,791 | 9 | % | -97 | % | |||||||||||||
| China | 353,651 | 713,257 | 2,662,247 | -50 | % | -73 | % | |||||||||||||
| United Kingdom | - | - | 1,573,546 | N/A | -100 | % | ||||||||||||||
| Germany | - | - | 2,062,110 | N/A | -100 | % | ||||||||||||||
| U.S. | 606,463 | - | - | 100 | % | - | ||||||||||||||
| Other countries | 97,576 | 70,379 | 5,156,666 | 39 | % | -99 | % | |||||||||||||
| Less: Sale tax and addition | (3,121 | ) | (2,789 | ) | (142,105 | ) | 12 | % | -98 | % | ||||||||||
| Total revenues | 1,091,889 | 815,225 | 12,648,255 | 34 | % | -94 | % | |||||||||||||
“Other countries” is comprised of all countries whose revenues, individually, were less than 10% of the Company’s revenues.
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Year Ended December 31, 2021 Compared to Year Ended December 31, 2020
Overall, our pet food sales to China domestic market and overseas market both significantly decreased in 2021 as compared to 2020, mainly due to decreased sales volume of our products as affected by the negative impact of COVID-19 (coronavirus) as discussed above, as well as decrease in sales orders, and our unfavorable selling price. On the other hand, revenue from United States increased by $606,463 in 2021 as compared to 2020 attributable to the restaurant business we acquired in October 2021.
Year Ended December 31, 2020 Compared to Year Ended December 31, 2019
Overall, our sales to China domestic market and overseas market both significantly decreased in 2020 as compared to 2019, mainly due to decreased sales volume of our products as affected by the negative impact of COVID-19 (coronavirus) as discussed above, as well as decrease in sales orders, and our unfavorable selling price.
Cost of revenues
Our cost of revenues is primarily comprised of the cost of our raw materials, labor and factory overhead. Our cost of revenues, increased by $255,403 or 29.80% for the year ended December 31, 2021 as compared to the year ended December 31, 2020. On October 31, 2021, we acquired 51% equity interests of Far Ling’s Inc. and 100% equity interests of Bo Ling’s Chinese Restaurant, Inc. This resulted in an increase of $606,463 in food service revenue and related costs. Our cost of revenues as a percentage of revenue was 101.88% and 105.13% for the years ended December 31, 2021, and 2020, respectively.
Our cost of revenues, decreased by $13,314,075 or 93.95% for the year ended December 31, 2020 as compared to the year ended December 31, 2019. This decrease in cost of revenues was in line with the 93.55% decrease in our total net revenue for the year ended December 31, 2020 when sales orders and sales volume decreased. Our cost of revenues as a percentage of revenue was 105.13% and 112.04% for the years ended December 31, 2020, and 2019, respectively.
Gross margin
Our gross margin was negative 1.88% for the year ended December 31, 2021, compared with negative gross margin of 5.13% for the year ended December 31, 2020. The improvement in gross margin was mainly due to change in sales mix and more high margin pet food products being sold in 2021 as compared to 2020, and also affected by increased gross margin from our restaurant business.
Our gross margin was negative 5.13% for the year ended December 31, 2020, compared with negative gross margin of 12.04% for the year ended December 31, 2019. The improvement in gross margin was mainly due to change in sales mix and more high margin products being sold in 2020 as compared to 2019.
Operating expenses
Operating expenses were $4,593,480, and $1,884,102 for the years ended December 31, 2021 and 2020, respectively, an increase of $2,709,378, or 143.80%. The ratio of operating expenses as a percentage of revenue increased from 231.11% for the year ended December 31, 2020 to 420.69% for the year ended December 31, 2021.
Selling expense was $75,944 and $117,993 for the years ended December 31, 2021, and 2020, respectively, a decrease of $42,049 or 35.64%. The decrease in our selling expense was in line with our decreased pet food revenue in 2021. As our revenue declined, our distribution costs, sales promotion and marketing campaign related costs and sales commission paid to our sales teams decreased in 2021 as compared to 2020.
General and administrative expenses was $3,944,709, and $1,766,109 for the years ended December 31, 2021 and 2020 respectively, representing an increase of $2,178,600, or 123.36%. The main reason for the increase was mainly due to the company’s payment of certain legal costs, an increase in consulting service fees and increased depreciation and amortization expenses related to our restaurant business.
Operating expenses were $1,884,102, and $5,435,616 for the years ended December 31, 2020 and 2019, respectively, a decrease of $3,551,514, or 65.34%. The ratio of operating expenses as a percentage of revenue increased from 42.98% for the year ended December 31, 2019 to 231.11% for the year ended December 31, 2020.
Selling expense was $117,993 and $920,237 for the years ended December 31, 2020, and 2019, respectively, a decrease of $802,244 or 87.18%. The decrease in our selling expense was in line with our decreased revenue in 2020. As our revenue declined, our distribution costs, sales promotion and marketing campaign related costs and sales commission paid to our sales teams decreased in 2020 as compared to 2019.
General and administrative expenses was $1,766,109, and $3,702,035 for the years ended December 31, 2020 and 2019 respectively, representing a decrease of $1,935,926, or 52.29%. The main reason for the decrease was because we have cut-down number of employees as a result of our business strategy adjustment when our business scale reduced in 2020, as a result, our salary paid to employees, office expenses incurred and business consulting expenses all decreased in 2020 as compared to 2019.
Impairment of long-lived assets other than goodwill was $217,257 and $0 for the year ended December 31, 2021, and 2020. In 2021, we reassessed our long-lived assets using on a forecast of the Company’s future performance, and accordingly recognized approximately $0.8 million impairment loss measured based on their fair value of the assets in the consolidated financial statements for the year ended December 31, 2021.
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Impairment of long-lived assets other than goodwill was $0 and $813,344 for the year ended December 31, 2020, and 2019. In 2019, we reassessed our long-lived assets using on a forecast of the Company’s future performance, and accordingly recognized approximately $0.8 million impairment loss measured based on their fair value of the assets in the consolidated financial statements for the year ended December 31, 2019. There was no additional impairment loss for the year ended December 31, 2020.
Impairment of goodwill was $355,570, $0 and $0 for the years ended December 31, 2021, 2020 and 2019, respectively. In 2018, we took full impairment provision for the goodwill generated in connection with the acquisition of TDH JAPAN and TDH Group BVBA. There was no such goodwill impairment in 2020 and 2019. In connection with our acquisition of restaurant business, we recognized a goodwill of $355,570 as of the acquisition date. However, due to our significant net loss in fiscal year 2021, goodwill of $355,570 has been fully impaired for the year ended December 31, 2021.
Loss from operations.
Our loss from operations was $4,614,054 for the year ended December 31, 2021, while our loss from operations was $1,925,937 for the year ended December 31, 2020. Our operating loss as a percentage of total revenues was negative 422.58%, and negative 236.25% for the years ended December 31, 2021 and 2020, respectively. The continuous loss from operation was mainly due to increased operating expenses in 2021.
Our loss from operations was $1,925,937 for the year ended December 31, 2020, while our loss from operations was $6,958,496 for the year ended December 31, 2019. Our operating loss as a percentage of total revenues was negative 236.25%, and negative 55.02% for the years ended December 31, 2020 and 2019, respectively. The continuous loss from operation was mainly due to decreased sales revenue.
Income taxes expense (benefit).
Due to our continuous operating loss for the years ended December 31, 2021, 2020 and 2019, we reported minimal income tax benefit for the year ended December 31, 2021, and we did not report income tax provision for the years ended December 31, 2020 and 2019.
Net loss.
Our net loss was $6,715,958 or the year ended December 31, 2021, compared to the net loss of $874,668 for the year ended December 31, 2020. The increase in our net loss was due to increased operating expenses as discussed above.
Our net loss was $874,668 or the year ended December 31, 2020, compared to the net loss of $8,625,427 for the year ended December 31, 2019. The decrease in our net loss was the combined result of improvement in gross margin and decrease in operating expenses as discussed above.
Liquidity and Capital Resources
Our consolidated financial statements have been prepared assuming we will continue as a going concern, which contemplates the realization of assets and liquidation of liabilities in the normal course of business. For the year ended December 31, 2021, we have incurred a net loss of approximately $6.72 million and our cash used in operating activities amounted to approximately $3.45 million. Our revenues generated are not currently sufficient and our business operations may be further affected by the ongoing COVID-19 pandemic. Although we received approximately $20.2 million net proceeds from issuance of common shares to certain investors during fiscal year 2021, there can be no assurances that future revenue or capital infusion will be sufficient to enable us to develop our business to a level where it will be profitable or to generate positive cash flows. These factors raise substantial doubt about the Company’s ability to continue as a going concern for the next twelve months from the date that our consolidated financial statements are issued.
In assessing our liquidity, management monitors and analyzes our cash and cash equivalent, our ability to generate sufficient revenue sources in the future, and our operating and capital expenditure commitments. As of December 31, 2021, we had cash and cash equivalent and restricted cash of approximately $19.51 million. We also had short-term investment of approximately $4.43 million, which are highly liquid and can be covered into cash and used in our operations if needed. We also had an aggregate approximately $5.99 million loans (including approximately $5.44 million short-term loans and approximately $0.55 million short-term loans from related parties). For the legal proceedings since December 31, 2019 regarding our delayed repayment of certain bank loans upon maturity as described above, in March and April 2020, we received court rulings to require us to make an aggregate RMB 54.54 million (approximately $8.35 million) to the financial institutions. On March 13, 2021, the land and factory buildings above the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were auctioned by the court for $5,098,461 (RMB33.14 million), among which, $3,192,827 (RMB21.14 million) has been used to repay loan principal and accrued interest to CCB based on the court order. The repayment has been completed as of the date of this filing. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered in bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
Based on our current financial conditions, our cash balance and revenues generated from our business operations may not be currently sufficient and cannot be projected to cover our future operating expenses and meet our obligations as they become due for the next twelve months after the date that our financial statements are issued.
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Management’s plan to alleviate the substantial doubt about our ability to continue as a going concern include attempting to improve our business profitability, generating sufficient cash flow from our operations to meet our operating needs on a timely basis, and obtaining additional working capital funds through debt and equity financings in order to meet our anticipated cash requirements. We also plan to evaluate and identify suitable strategic or acquisition opportunities, complete such transactions on commercially favorable terms, or successfully integrate business operations, infrastructure and management philosophies of acquired businesses and companies. Due to the effects discussed above, to the extent that we experience an adverse operating environment, incur unanticipated capital expenditures, or if we decide to accelerate our growth, then substantial additional financing may be required. Currently, we are working to improve our liquidity and capital sources primarily through financial support from our principal shareholder and the exploration of additional debt or equity financing possibilities. In order to fully implement our business plan and sustain continued growth, we may also need to raise capital from outside investors. On September 30, 2021, we issued 10 million shares of our common stock to investors and received net proceeds of approximately $8.2 million after deducting placement agent fees and estimated offering fees. On November 3, 2021, we issued 15 million shares of our common stock to investors and received net proceeds of approximately $8.9 million after deducting placement agent fees and estimated offering fees. Our expectation, therefore, is that we will seek to access the capital markets in both the U.S. and China to obtain additional funds as needed. At the present time, however, we do not have commitments of funds from any third party. No assurance can be given that additional financing, if required, would be available on favorable terms or at all. If we do not secure capital needed for our operations, we may have to temporarily suspend or to terminate our operations.
Based on above reasons, there is a substantial doubt about the Company’s ability to continue as a going concern for the next 12 months from the date of this filing.
During the year ended December 31, 2021, our cash used in operating activities was $3,445,820, cash used in investing activities was $1,642,776, cash provided by financing activities was $18,098,314, and had the negative effect of prevailing exchange rates on our cash of $247,807. During the year ended December 31, 2020, our cash used in operating activities was $2,628,255, cash provided by investing activities was $3,355,189, cash used in financing activities was $589,358, and had the positive effect of prevailing exchange rates on our cash of $106,910. During the year ended December 31, 2019, our cash used in operating activities was $5,626,618, cash provided by investing activities was $113,552, cash provided by financing activities was $9,520,716 and we had the negative effect of prevailing exchange rates on our cash of $ 203,577.
Net cash used in operating activities for the year ended December 31, 2021 totaled $3,445,819. The activities were mainly comprised of a net loss of $5,232,389, depreciation and amortization of $408,740, fair value change of short-term investments $495,265, inventory write-down of $191,026, bad debt provision $2,168, Non-cash lease expense of $4,595,020, a decrease in net accounts receivable of $128,987, an increase in net Advances to suppliers of $30,102, a decrease in Operating lease liabilities of $4,830,456, an increase in prepayment and other current net asset $1,006,351, an increase in other current liabilities of $861,109, and an increase in account payable of $144,376.
Net cash used in operating activities for the year ended December 31, 2020 totaled $2,628,255. The activities were mainly comprised of a net loss of $874,668, depreciation and amortization of $391,351, fair value change of short-term investments $2,120,241, inventory write-down of $42,241, bad debt provision $74,190, an increase in interest payable $1,065,277, an increase in net accounts receivable of $112,177, a decrease in net inventory of $201,730, an increase in prepayment and other current net asset $29,363, a decrease in other current liabilities of $866,962, and a decrease in account payable of $416,506.
Net cash used in operating activities for the year ended December 31, 2019 totaled $5,626,618. The activities were mainly comprised of a net loss of $8,625,427, depreciation and amortization of $571,528, impairment of long-lived assets other than goodwill of $813,344, inventory write-down of $518,119, bad debt provision $659,569, a decrease in net accounts receivable of $329,042, a decrease in account receivable- related parties of $306,301, a decrease in net inventory of $2,009,862, a decrease in prepayment and other current net asset 516,018, and offset by a decrease in notes payable of $1,046,257, and a decrease in account payable of $2,775,356.
Net cash used in investing activities for the year ended December 31, 2021 totaled $1,642,776, primarily include cash obtained from business acquisition of $171,827, Payment for business acquisition of $1,020,000,purchase of short-term investments of $4,372,809 and proceeds from sale of short-term investments of $3,578,206.
Net cash provided by investing activities for the year ended December 31, 2020 totaled $3,355,189, primarily include purchase of short-term investments of $38,743,908, proceeds from sale of short-term investments of $42,146,183, and payments to acquire property, plant and equipment of $47,086.
Net cash provided by investing activities for the year ended December 31, 2019 totaled $113,552. The activities were primarily comprised of $233,747 proceeds from disposal of property, plant and equipment, disposal of subsidiaries of $83, collections from related parties of $1,282, and offset by $121,560 payment to purchase property and equipment.
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For the year ended December 31, 2021, net cash provided by financing activities was $18,098,313, primarily include Proceeds from issuance of common shares of $20,222,188, Repayments of short term loans of $1,692,988, and Repayments of short term loans - related parties of $430787.
For the year ended December 31, 2020, net cash used in financing activities was $589,358, primarily include proceeds from borrowing of short-term loans of $107,829, borrowing of short term loan-related parties of $49,350, and repayment of short term loan of $746,437.
For the year ended December 31, 2019, net cash provided by financing activities was $9,520,716. We received these funds from borrowing of short term loans of $1,046,275, borrowing of short term loan-related parties of $4,791,403, and proceeds from shares subscription of $6,760,000 offset by repayment to related parties of $1,000, repayment of short term loan of $2,073,177 and repayments of short term loans to related parties of $1,080,947.
Loan facilities
From 2018, 2019 and 2020, we secured the following revolving lines of credit:
On August 10, 2016, we obtained a line of credit of approximately $705,676 (RMB 4,900,000) from Industrial & Commercial Bank of China - Qingdao Shinan Second Branch. The borrowing under the line of credit was guaranteed by Rongfeng Cui and his wife, Yanjuan Wang. Under the term of the loan documentation, the loan term commenced on the date the borrowed capital was transferred to the borrower and continued until the all principal and accrued interest thereon were repaid in full. On June 6, 2017, we drew down the full amount of this loan; the term of this loan is 15-day, with this loan bearing interest at approximately 120% of the prevailing PRC prime rate. On July 6, 2017, this loan was repaid in full. On July 12, 2017, we obtained a new line of credit of approximately $412,371 (RMB2,800,000) with the same lender. On July 14, 2017, we drew down the full amount of this loan. The loan maturity date is July 10, 2018 with annual interest rate of 5.22%. On July 9, 2018, this loan was repaid in full and the line of credit was recovered. On August 2, 2018, we drew down the full amount of this loan. The loan maturity date is July 16, 2019 with annual interest rate of 5.22%. In July 2019 this loan was repaid in full. The outstanding balance on this loan was $0 as of December 31, 2020.
On March 25, 2017, we obtained a line of credit of approximately $290,361 (RMB 2,000,000) from China Postal Savings Bank – Qingdao Weihai Road Sub Branch. The borrowing under the line of credit was guaranteed by Rongfeng Cui and his wife, Yanjuan Wang. Under the term of the loan documentation, the loan term commenced on the date the borrowed capital was transferred to the borrower and continued until the all principal and accrued interest thereon are repaid in full. On March 29, 2017, we drew down the full amount of this loan. The loan maturity date is March 28, 2018, bearing interest at approximately 140% of the prevailing PRC prime rate. On March 16, 2018, this loan was repaid in full and the line of credit is recovered. On March 21, 2018, we drew down the full amount of this loan. The loan maturity date is March 19, 2019 with annual interest rate of 6.96%. We made partial repayment of this loan during the year ended December 31, 2018 and the outstanding balance on this loan was approximately $147,000 (RMB 1,008,675) as of December 31, 2018. In 2019 we repaid the rest of the loan in full, and the outstanding balance on this loan was $0 as of December 31, 2020.
On November 23, 2017, we obtained a line of credit of approximately $614,779 (RMB 4,000,000) from China Postal Savings Bank – Qingdao Weihai Road Sub Branch (“CPSB”). The borrowing under the line of credit was guaranteed by Rongfeng Cui and his wife, Yanjuan Wang. Under the term of the loan documentation, the loan term commenced on the date the borrowed capital was transferred to the borrower and continued until the all principal and accrued interest thereon are repaid in full. On December 13, 2017, we drew down the full amount of this loan. The loan maturity date is December 12, 2018 with annual interest rate of 5.655%. On November 14, 2018, this loan was repaid in full and the line of credit is recovered. On November 19, 2018, we drew down the full amount of this loan. The loan maturity date is November 18, 2019 with annual interest rate of 5.22%. In 2019 we didn’t repay the loan when it came due, and the outstanding balance on this loan was approximately $608,893 (RMB 3,972,965) as of December 31, 2020. As of December 31, 2021 and 2020, we were in default on the loan.
On April 29, 2019, we entered a line of credit of approximately $845,732 (RMB 5,900,000) from China Postal Savings Bank - Qingdao Branch. The borrowing under the line of credit was guaranteed by Rongfeng Cui and his wife, Yanjuan Wang. The term of this loan is one-year; the loan maturity date is 17, 2020, with this loan bearing interest rate of 5.0025% at approximately 150% of the prevailing PRC prime rate. The outstanding balance of this loan was approximately $903,975 (RMB 5,898,347) as of December 31, 2020. As of December 31, 2021 and 2020, we were in default on the loan.
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On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims and our defaulted loans payable are now subject to the bankruptcy proceedings.
Our long-term future capital requirements will depend on many factors, including our level of revenue, the timing and extent of our spending to support the maintenance and growth of our operations, the expansion of our sales and the continued market acceptance of our products and projects. Compared to $8,391,323 short-term loans outstanding as of December 31, 2020, we had $5,440,350 short-term loans outstanding as of December 31, 2021.
We expect to incur additional costs associated with being a reporting company in the United States, primarily due to increased expenses that we incur to comply with the requirements of the Sarbanes-Oxley Act of 2002, as well as costs related to accounting and tax services, legal expenses and investor and stockholder-related expenses. These additional long-term expenses may require us to seek other sources of financing, such as additional borrowings or public or private equity or debt capital. The availability of these other sources of financing will depend upon our financial condition and results of operations as well as prevailing market conditions, and may not be available on terms reasonably acceptable to us or at all.
Regulatory Restrictions on Capital Injections
We are using proceeds from our initial public offering and private placement to fund our business. Accordingly, the following regulations have to be followed, regarding capital injections to foreign-invested enterprises.
Chinese regulations relating to investments in offshore companies by Chinese residents. SAFE promulgated the Circular on Relevant Issues Concerning Foreign Exchange Control on Domestic Residents’ Financing and Round-trip Investment through Offshore Special Purpose Vehicles, or SAFE Circular 37, on July 4, 2014. SAFE Circular 37 requires Chinese residents to register and update certain investments in companies incorporated outside of China with their local SAFE branch. SAFE also subsequently issued various guidance and rules regarding the implementation of SAFE Circular 37, which imposed obligations on Chinese subsidiaries of offshore companies to coordinate with and supervise any Chinese-resident beneficial owners of offshore entities in relation to the SAFE registration process.
We may not be aware of the identities of all of our beneficial owners who are Chinese residents. We do not have control over our beneficial owners and cannot assure you that all of our Chinese -resident beneficial owners will comply with SAFE Circular 37 and subsequent implementation rules. The failure of our beneficial owners who are Chinese residents to register or amend their SAFE registrations in a timely manner pursuant to SAFE Circular 37 and subsequent implementation rules, or the failure of future beneficial owners of our Company who are Chinese residents to comply with the registration procedures set forth in SAFE Circular 37 and subsequent implementation rules, may subject such beneficial owners or our Chinese subsidiaries to fines and legal sanctions, which may be substantial. Failure to register may also limit our ability to contribute additional capital to our Chinese subsidiaries and limit our Chinese subsidiaries’ ability to distribute dividends to our Company. These risks may have a material adverse effect on our business, financial condition and results of operations.
China regulates loans to and direct investment in Chinese entities by offshore holding companies and there is governmental control of currency conversion. We are an offshore holding company conducting our operations in China through our wholly owned subsidiary Tiandihui. As an offshore holding company, we may make loans and additional contributions to Tiandihui subject to approval from government authorities.
Any loan to Tiandihui, which is treated as a foreign-invested enterprise under Chinese law, is subject to Chinese regulations and foreign exchange loan registrations. In January 2003, the China State Development and Reform Commission, SAFE and Ministry of Finance jointly promulgated the Circular on the Interim Provisions on the Management of Foreign Debts, or the Circular 28, limiting the total amount of foreign debt a foreign-invested enterprise may incur to the difference between the amount of total investment approved by the Ministry of Commerce or its local counterpart for such enterprise and the amount of registered capital of such enterprise, and requiring registration of any such loans with SAFE. As of December 31, 2016, the amount of approved total investment of Tiandihui was $2,707,490 (RMB 18,800,000) and TDH HK have invested the same amount of $2,707,490 (RMB 18,800,000) into Tiandihui, which means Tiandihui needs to obtain additional approval for total investment amount from the local counterpart of Ministry of Commerce. During 2017, we have successfully obtained the investment approval from Ministry of Commerce for our proceeds of IPO.
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In March 2015, SAFE issued the Circular Concerning the Reform of the Administration of the Settlement of Foreign Currency Capital of Foreign-Invested Enterprises, or SAFE Circular 19, which became effective in June 2015. SAFE Circular 19 regulates the conversion by a foreign-invested enterprise of foreign currency registered capital into RMB by restricting how the converted RMB may be used. Furthermore, SAFE promulgated a circular in June 2016, SAFE Circular 16, which further revises some clauses in the SAFE Circular 19. SAFE Circular 19 and 16 provide that the capital-account foreign exchange incomes of a domestic enterprise shall not be directly or indirectly used for expenditures that are forbidden by relevant laws and regulations, for purposes that are not included in the business scope approved by the applicable government authority, shall not be directly or indirectly used for investments in securities or for any other kind of wealth-managing investments than banks’ principal-secured products unless otherwise prescribed by other laws and regulations, shall not be directly or indirectly used for issuing RMB entrusted loans (unless expressly permitted in the business scope approved by the competent governmental authorities) or repaying inter-enterprise loans (including advances by the third party) or repaying bank loans in RMB which have been sub-lent to third parties, shall not be used for granting loans to non-affiliated enterprises unless expressly permitted in the business scope and shall not be used for the construction or purchase of real estate not for self-use (except for real estate enterprises). In addition, SAFE supervises the flow and use of the RMB capital converted from foreign currency registered capital of a foreign-invested company by further focusing on ex post facto supervision and violations. These two circulars may limit our ability to use the net proceeds from this offering to invest in or acquire any other Chinese companies in China, which may adversely affect our liquidity and our ability to fund and expand our business in China.
Capital Resources
As of December 31, 2021 and 2020
The following table provides certain selected balance sheets comparisons between years ended December 31, 2021 and 2020:
| December 31, | ||||||||||||||||
| 2021 | 2020 | Fluctuation | % | |||||||||||||
| ASSETS | ||||||||||||||||
| Cash and cash equivalents | $ | 18,027,322 | $ | 6,566,549 | 11,460,773 | 175 | ||||||||||
| Restricted cash | 1,483,653 | 182,515 | (1,301,138 | ) | 713 | |||||||||||
| Short-term investments | 4,428,446 | 3,138,578 | 1,289,868 | 41 | ||||||||||||
| Accounts receivable, net | 39,512 | 168,499 | (128,987 | ) | -77 | |||||||||||
| Advanced to suppliers, net | 10,986 | 41,088 | (30,102 | ) | -73 | |||||||||||
| Inventories, net | 51,423 | 247,245 | (195,822 | ) | -79 | |||||||||||
| Prepayment and other current assets, net | 1,205,695 | 172,481 | 1,033,214 | 599 | ||||||||||||
| Total current assets | 25,247,037 | 10,516,955 | 14,730,082 | 140 | ||||||||||||
| Property, plant and equipment, net | 1,543,430 | 6,636,995 | (5,093,565 | ) | -77 | |||||||||||
| Land use rights, net | 653,125 | 1,009,005 | (355,880 | ) | -35 | |||||||||||
| Operating lease right-of-use assets | 4,604,365 | 19,103 | 4,585,262 | 24003 | ||||||||||||
| Operating lease right-of-use assets - related parties | - | 270,852 | (270,852 | ) | -100 | |||||||||||
| Total non-current assets | 6,800,920 | 7,935,955 | (1,135,035 | ) | -14 | |||||||||||
| Total assets | $ | 32,047,957 | $ | 18,452,910 | 13,595,047 | 74 | ||||||||||
| LIABILITIES AND STOCKHOLDERS’ EQUITY | ||||||||||||||||
| Accounts payable | $ | 3,065,387 | $ | 3,209,763 | (144,376 | ) | -4 | |||||||||
| Account payable - related parties | 127,668 | 124,715 | 2,953 | 2 | ||||||||||||
| Advances from customers | 109,959 | 90,834 | 19,125 | 21 | ||||||||||||
| Bank overdrafts | 79,851 | 78,320 | 1,531 | 2 | ||||||||||||
| Short term loans | 5,440,350 | 8,391,323 | (2,950,973 | ) | -35 | |||||||||||
| Short term loans - related parties | 555,096 | 985,883 | (430,787 | ) | -44 | |||||||||||
| Taxes payable | 82,614 | 60,729 | 21,885 | 36 | ||||||||||||
| Due to related parties | 307,509 | 42,021 | 265,488 | 632 | ||||||||||||
| Operating lease liabilities, current | 268,403 | 9,913 | 258,490 | 2608 | ||||||||||||
| Operating lease liabilities - related parties, current | - | 195,231 | (195,231 | ) | -100 | |||||||||||
| Other current liabilities | 3,793,140 | 5,882,164 | (2,089,024 | ) | -36 | |||||||||||
| Total current liabilities | 13,829,998 | 19,070,896 | (2,089,023 | ) | -36 | |||||||||||
| Deferred tax liabilities | 1,132 | - | 1,132 | 100 | ||||||||||||
| Operating lease liabilities - related party, non-current | 4,846,760 | 274,794 | 4,571,966 | 1664 | ||||||||||||
| Total liabilities | 18,677,890 | 19,345,690 | (667,800 | ) | -3 | |||||||||||
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We maintain cash and cash equivalents in mainland China, Hong Kong, New Zealand and U.S. on December 31, 2021 and 2020.
| December 31, | ||||||||
| Country | 2021 | 2020 | ||||||
| China (Mainland) | $ | 1,511,376 | $ | 2,960,253 | ||||
| China (Hong Kong) | 14,099,208 | - | ||||||
| Hong Kong (through a broker account) | 157,974 | 156,125 | ||||||
| New Zealand (through a broker account) | 1,232,822 | 3,623,001 | ||||||
| U.S. | 2,509,595 | 9,685 | ||||||
| Total | $ | 19,510,975 | $ | 6,749,064 | ||||
The majority of our cash balances at December 31, 2021 and 2020 are in form of USD and held in a broker accounts in New Zealand and Hong Kong and bank accounts at financial institutions located in China. Cash held in banks in China is not insured. In 1996, the Chinese government introduced regulations relaxing restrictions on the conversion of the RMB; however restrictions still remain, including restrictions on foreign-invested entities. Foreign-invested entities may only buy, sell or remit foreign currencies after providing valid commercial documents at only those banks authorized to conduct foreign exchanges. Furthermore, the conversion of RMB for capital account items, including direct investments and loans, is subject to China government approval. Chinese entities are required to establish and maintain separate foreign exchange accounts for capital account items. We cannot be certain Chinese regulatory authorities will not impose more stringent restrictions on the convertibility of the RMB, especially with respect to foreign exchange transactions. Accordingly, cash on deposit in banks in China is not readily deployable by us for use outside of China.
Cash and cash equivalents and restricted cash
As of December 31, 2021, cash and cash equivalents were $18,027,322, compared to $6,566,549 at December 31, 2020. The components of this increase of $12,766,911 reflected below.
| 2021 | 2020 | |||||||
| Net cash used in operating activities | $ | (3,445,819 | ) | $ | (2,628,255 | ) | ||
| Net cash provided by investing activities | (1,642,776 | ) | 3,355,189 | |||||
| Net cash provided by (used in) financing activities | 18,098,313 | (589,358 | ) | |||||
| Exchange rate effect on cash and restricted cash | (247,807 | ) | 106,910 | |||||
| Net cash inflow | $ | 12,766,911 | $ | 244,486 | ||||
We had current restricted cash of $1,483,653 and $182,515 as of December 31, 2021 and 2020, respectively, among which, $1,483,653 and $182,515 has been frozen by the court as a result of our current pending legal proceedings as disclosed above, respectively. Due to the pending legal proceedings, certain of our bank deposit under Tiandihui has been temporarily frozen by the court.
Short-term investments
During the years ended December 31, 2021 and 2020, the Company acquired equity securities of certain publicly listed companies through various open market transactions. The Company’s investments in marketable securities are accounted for pursuant to ASC 321 and reported at their readily determinable fair value as quoted by market exchanges in the consolidated balance sheets with changes in fair value recognized in earnings. Changes in fair value, including realized gain of approximately $0.07 million and unrealized gain of approximately $0.5 million for the year ended December 31, 2021. Changes in fair value, including realized gain of approximately $1.9 million and unrealized gain of approximately $0.2 million for the year ended December 31, 2020, which were included in “investment income” in the accompanying consolidated statements of operations and comprehensive loss.
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Accounts receivable
Accounts receivable, net as of December 31, 2021 was $39,512, an increase of $128,987 compared to $168,499 as of December 31, 2020. $19,221 and $16,656 allowance for credit losses was recorded for the years ended December 31, 2021 and 2020, respectively.
Inventories
As of December 31, 2021, our inventory balance was $51,423, a decrease of $195,822, or 79% compared to $247,245 as of December 31, 2020. The decrease was due to the fact that (1) the increasing raw material prices prevented us from storing extra inventory for the year ended December 31, 2021, (2) in 2021, the company’s sales orders decreased significantly.
Due to related parties
As of December 31, 2021, the balances of due to related parties were $307,509, an increase of $265,488 compared to $42,021 on December 31, 2020. The balance of due to related parties represented expenses incurred by related parties in the ordinary course of business, expense paid by related parties on behalf of the Company as well as the loans the Company obtained from related parties for working capital purpose. The loans owed to the related parties are interest free, unsecured and repayable on demand.
Property, plant and equipment, net
Property, plant and equipment, net as of December 31, 2021 were $1,543,430, an decrease of $5,093,565 compared to $6,636,995, as of December 31, 2020. On March 13, 2021, a factory building of Qingdao Tiandihui Foodstuffs Co., Ltd. was auctioned by the court. Depreciation expense for the years ended December 31, 2021 and 2020 was $374,455 and $363,098, respectively.
Land use rights, net
Land use rights, net as of December 31, 2021 were $653,125, an decrease of $355,880 compared to $1,009,005 as of December 31, 2020. On March 13, 2021, a land use right of Qingdao Tiandihui Foodstuffs Co., Ltd. was auctioned by the court. During the years ended December 31, 2021 and 2020, amortization expense amounted to $34,506 and $28,253, respectively.
Accounts payable and Notes payable
Accounts payable represents our commercial credit offered to the suppliers and notes payable was the bank acceptance notes to suppliers.
Accounts payable decreased by $144,376, to $3,065,387 as of December 31, 2021, from $3,209,763 as of December 31, 2020 due to our severe shortage of sales orders in 2021, we have reduced material purchases and inventory.
As of December 31, 2021 and December 31, 2020, notes payable is $0.
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Short term loan
Balance of short-term loan as of December 31, 2021 was $5,440,350, representing an decrease of $2,950,973 or 35%, compared with balance of $8,391,323 as of December 31, 2020 due to the repayment of some loans in 2021.
Taxes payable
Taxes payable represents the accrued enterprise income tax at the year end.
Balance of taxes payable as of December 31, 2021 was $82,614 representing an increase of $21,885, or 36%, compared with balance of $60,729 as of December 31, 2020.
Tabular Disclosure of Contractual Obligations
We have certain potential commitments that include future estimated payments. Changes in our business needs, cancellation provisions, changing interest rates, and other factors may result in actual payments differing from the estimates. We cannot provide certainty regarding the timing and amounts of payments.
As of December 31, 2021, we had the following contractual obligations:
| Payments Due by Period | ||||||||||||||||||||
| Contractual Obligations | Total | Less than 1 year | 1-3 years | 3-5 years | More than 5 years | |||||||||||||||
| (1) Debt Obligations | $ | 5,440,350 | $ | 5,440,350 | $ | - | $ | - | $ | - | ||||||||||
| (2) Lease Obligations | $ | 5,115,163 | 452,469 | 904,938 | 904,938 | 2,852,818 | ||||||||||||||
| Total | $ | 10,555,513 | $ | 5,892,819 | $ | 904,938 | $ | 904,938 | $ | 2,852,818- | ||||||||||
| (1) | As of December 31, 2020, The Company was in default on substantially all of the outstanding loans. On March 13, 2021, the land and factory buildings on the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were auctioned by the court for $5,098,461 (RMB33.14 million), of which, $3,192,827 (RMB21.14 million) has been used to repay loan principal and accrued interest to CCB, which was repaid by April 2021. As of December 31, 2021, the Company had defaulted short-term loans payable of $5,440,350. |
| (2) | The Company has signed two lease agreements for office premises and restaurant premises. The remaining lease term of the Company’s leases ranges from approximately 1 to 14 years. |
Off-Balance Sheet Arrangements
Under SEC regulations, we are required to disclose off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, such as changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that are material to investors. An off-balance sheet arrangement means a transaction, agreement or contractual arrangement to which any entity that is not consolidated with us is a party, under which we have:
| ● | Any obligation under certain guarantee contracts, |
| ● | Any retained or contingent interest in assets transferred to an unconsolidated entity or similar arrangement that serves as credit, liquidity or market risk support to that entity for such assets, |
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| ● | Any obligation under a contract that would be accounted for as a derivative instrument, except that it is both indexed to our stock and classified in shareholder equity in our statement of financial position, and |
| ● | Any obligation arising out of a material variable interest held by us in an unconsolidated entity that provides financing, liquidity, market risk or credit risk support to us, or engages in leasing, hedging or research and development services with us. |
We do not have any off-balance sheet arrangements that we are required to disclose pursuant to these regulations. In the ordinary course of business, we enter into operating lease commitments, and other contractual obligations. These transactions are recognized in our financial statements in accordance with generally accepted accounting principles in the United States.
Trend Information
Other than as disclosed elsewhere in this annual report, we are not aware of any trends, uncertainties, demands, commitments or events that are reasonably likely to have a material adverse effect on our net revenues, income, profitability, liquidity or capital resources, or that would cause the disclosed financial information to be not necessarily indicative of future operating results or financial conditions.
Critical Accounting Policies
The discussion and analysis of our financial condition and results of operations are based upon our audited consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these audited consolidated financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses. We evaluate our estimates on an ongoing basis, including those related to revenue recognition and income taxes. We base our estimates on our historical experience and on various other assumptions that we believe to be reasonable under the circumstances, the results of which form the basis for making the judgments we make about the carrying values of our assets and liabilities that are not readily apparent from other sources. Because these estimates can vary depending on the situation, actual results may differ from the estimates.
The critical accounting policies summarized in this section are discussed in further detail in the notes to the audited consolidated financial statements appearing elsewhere in this Annual Report. Management believes that the application of these policies on a consistent basis enables us to provide useful and reliable financial information about our operating results and financial condition.
Use of Estimates
The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and judgments that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities on the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The Company bases its estimates and judgments on historical experience and on various other assumptions and information that are believed to be reasonable under the circumstances. Estimates and assumptions of future events and their effects cannot be perceived with certainty and, accordingly, these estimates may change as new events occur, as more experience is acquired, as additional information is obtained and as our operating environment changes. Significant estimates and assumptions by management include, among others, useful lives and impairment of long-lived assets, allowance for credit losses, write-down in value of inventories and income taxes including the valuation allowance for deferred tax assets. Estimates and assumptions are periodically reviewed and the effects of revisions are reflected in the financial statements in the period they are determined to be necessary.
Inventories
Inventories, consisting of raw materials, work in progress, and finished goods, are stated at the lower of cost or net realizable value, with cost computed on a weighted-average basis. The valuation of inventory requires us to estimate excess and slow-moving inventory. We evaluate the recoverability of our inventory based on assumption about expected demand, market conditions, forecasts prepared by its customers, sales contracts and orders in hand.
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Impairment of Long-Lived Assets and Goodwill
The Company reviews long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of the assets may not be fully recoverable, or at least annually. The Company recognizes an impairment loss when the sum of expected undiscounted future cash flows is less than the carrying amount of the asset. The amount of impairment is measured as the difference between the asset’s estimated fair value and its book value. The Company recorded impairment loss on long-lived assets other than goodwill of $217,257, $0 and $813,344 for the years ended December 31, 2021, 2020 and 2019, respectively.
The Company’s goodwill is tested for impairment on an annual basis or whenever events or changes in circumstances indicate that the carrying amount of these assets may not be recoverable. In testing for goodwill impairment, the Company compares the fair value of its reporting unit to its carrying value including the goodwill of that unit. If the carrying value, including goodwill, exceeds the reporting unit’s fair value, the Company will recognize an impairment loss for the amount by which the carrying amount exceeds the reporting unit’s fair value. The loss recognized cannot exceed the total amount of goodwill allocated to that reporting unit. The Company recorded impairment of goodwill of $355,570, $0 and $0 for the years ended December 31, 2021, 2020 and 2019, respectively.
Lease Commitments
On January 1, 2019, the Company adopted Accounting Standards Update (“ASU”) No. 2016-02, Leases (together with all amendments subsequently issued thereto, “ASC Topic 842”), using the modified retrospective method. The Company elected the transition method which allows entities to initially apply the requirements by recognizing a cumulative-effect adjustment to the opening balance of retained earnings in the period of adoption. As a result of electing this transition method, previously reported financial information has not been restated to reflect the application of the new standard to the comparative periods presented. The Company elected the package of practical expedients permitted under the transition guidance within ASC Topic 842, which among others, allows the Company to carry forward certain historical conclusions reached under ASC Topic 840 regarding lease identification, classification, and the accounting treatment of initial direct costs. The Company elected not to record assets and liabilities on its consolidated balance sheet for new or existing lease arrangements with terms of 12 months or less. The Company recognizes lease expenses for such leases on a straight-line basis over the lease term. In addition, the Company elected the land easement transition practical expedient and did not reassess whether an existing or expired land easement is a lease or contains a lease if it has not historically been accounted for as a lease.
The initial lease liability is equal to the future fixed minimum lease payments discounted using the Company’s incremental borrowing rate, on a secured basis. The lease term includes option renewal periods and early termination payments when it is reasonably certain that the Company will exercise those rights. The initial measurement of the right-of-use asset is equal to the initial lease liability plus any initial direct costs and prepayments, less any lease incentives.
Payments made under operating leases are charged to the consolidated statements of operations and comprehensive loss on a straight-line basis over the lease period. The Company does not have finance lease arrangements as of December 31, 2021 and 2020.
Loss Contingencies
The Company records accruals for certain of its outstanding legal proceedings or claims when it is probable that a liability will be incurred and the amount of loss can be reasonably estimated. When a loss contingency is not both probable and estimable, the Company does not record an accrued liability but discloses the nature and the amount of possible loss, if material, in the notes to the consolidated financial statements.
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The Company reviews the developments in contingencies that could affect the amount of the provisions that has been previously recorded, and the matters and related possible losses disclosed. The Company makes adjustments to provisions and changes to its disclosures accordingly to reflect the impact of negotiations, settlements, rulings, advice of legal counsel, and updated information. The assessment of whether a loss is probable or reasonably possible, and whether the loss or a range of loss is estimable, often involves complex judgments about future events. Management is often unable to estimate the loss or a range of loss, particularly where (i) the damages sought are indeterminate, (ii) the proceedings are in the early stages, or (iii) there is a lack of clear or consistent interpretation of laws specific to the industry-specific complaints among different jurisdictions. In such cases, there is considerable uncertainty regarding the timing or ultimate resolution of such matters, including eventual loss, fine, penalty or business impact, if any.
Revenue Recognition
Revenue is measured according to ASC Topic 606, Revenue from Contracts with Customers. The Company currently generated revenue from two sources: sales of pet food products and revenue from restaurant business operation.
Revenue for sale of products is derived from contracts with customers, which primarily include the sale of pet food products. The Company recognizes revenue upon transfer of control of promised goods in a contract with a customer in an amount that reflects the consideration the Company expects to receive in exchange for those products. Transfer of control occurs once the customer has the contractual right to use the product, generally upon shipment or once delivery and risk of loss has transferred to the customer.
The Company started to generate revenue from restaurant business operation since late 2021. Revenue from providing dining services and sales of meals is recognized at point when services are rendered. The Company recognizes revenues in the form of restaurant sales at the time of the sale when payment is made by the customer, as the Company has completed its performance obligation, namely the provision of food and beverage, and the accompanying customer service, during the customer’s visit to the restaurant.
Revenue is recognized net of any taxes collected from customers that are subsequently remitted to governmental authorities, including value-added tax (“VAT”), business tax, applicable local government levies. At the time revenue is recognized, allowances are recorded, with the related reduction to revenue, for estimated sales returns based upon historical experience and related terms of customer arrangements.
The allowance for sales returns recorded by the Company was $0, $0 million and $0.06 million for the years ended December 31, 2021, 2020 and 2019, respectively. The Company does not provide rebate, pricing protection or any other concessions to its customers.
The Company elected to account for shipping and handling fees that occur after the customer has obtained control of goods, for instance, free onboard shipping point arrangements, as a fulfillment cost and accrues for such costs.
Management has concluded that the disaggregation level is the same under both the revenue standard and the segment reporting standard. Revenue under the segment reporting standard is measured on the same basis as under the revenue standard.
Contract liabilities are recorded when consideration is received from a customer prior to transferring the control of goods to the customer or other conditions under the terms of a sales contract. As of December 31, 2021 and 2020, the Company recorded contract liabilities of $109,959 and $90,834, respectively, which were presented as advances from customers on the accompanying consolidated balance sheets. During the years ended December 31, 2021,2020 and 2019, the Company recognized $163,074, $56,983 and $158,274 of contract liabilities as revenue, respectively.
Foreign Currency Translation
The accompanying consolidated financial statements are presented in United States dollar (“$”), which is the reporting currency of the Company. The functional currency of TDH Holdings, TDH HK, TDH Foods, TDH Income Corporation, Ruby21Noland LLC, Far Ling’s Inc, Bo Ling’s Chinese Restaurant, Inc and TDH Petfood LLC is United States dollar. The functional currency of Tiandihui, Tiandihui Pet Foodstuffs, Tiandihui Foodstuffs Sales and Chongai Jiujiu, is Renminbi (“RMB”). The functional currency of TDH Group BVBA is Euro (“€”). The functional currency of TDH JAPAN is Yen (“¥”). For the subsidiaries whose functional currencies are RMB, Euro and Yen, results of operations and cash flows are translated at average exchange rates during the period, assets and liabilities are translated at the unified exchange rate at the end of the period, and equity is translated at historical exchange rates. The resulting translation adjustments are included in determining other comprehensive income or loss. Transaction gains and losses are reflected in the consolidated statements of operations.
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The exchange rates used to translate amounts in RMB into U.S. Dollars for the purpose of preparing the consolidated financial statements were as follows (USD$1=RMB):
| Period Covered | Balance Sheet Date Rates | Average Rates | ||||||
| Year ended December 31, 2021 | 6.3757 | 6.4515 | ||||||
| Year ended December 31, 2020 | 6.5277 | 6.9001 | ||||||
The exchange rates used to translate amounts in Euro into U.S. Dollars for the purpose of preparing the consolidated financial statements were as follows (USD$1=€):
| Period Covered | Balance Sheet Date Rate | Average Rate | ||||||
| Year ended December 31, 2021 | 0.8831 | 0.8448 | ||||||
| Year ended December 31, 2020 | 0.8153 | 0.8772 | ||||||
The exchange rates used to translate amounts in Yen into U.S. Dollars for the purpose of preparing the consolidated financial statements were as follows (USD$1=¥):
| Period Covered | Balance Sheet Date Rate | Average Rate | ||||||
| Year ended December 31, 2021 | 115.0536 | 109.7430 | ||||||
| Year ended December 31, 2020 | 103.1589 | 106.7408 | ||||||
Fair Value of Financial Instruments
Accounting guidance defines fair value as the price that would be received from selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair value measurement for assets and liabilities required or permitted to be recorded at fair value, the Company considers the principal or most advantageous market in which it would transact and it considers assumptions that market participants would use when pricing the asset or liability.
The Company measures certain financial assets, including the investment under the measurement alternative method and equity method on other-than-temporary basis, intangible assets and fixed assets at fair value when an impairment charge is recognized.
Accounting guidance establishes a fair value hierarchy that requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. A financial instrument’s categorization within the fair value hierarchy is based upon the lowest level of input that is significant to the fair value measurement. Accounting guidance establishes three levels of inputs that may be used to measure fair value:
Level 1 — Observable inputs that reflect quoted prices (unadjusted) for identical assets or liabilities in active markets.
Level 2 — Include other inputs that are directly or indirectly observable in the marketplace.
Level 3 — Unobservable inputs which are supported by little or no market activity.
Accounting guidance also describes three main approaches to measuring the fair value of assets and liabilities: (1) market approach; (2) income approach and (3) cost approach. The market approach uses prices and other relevant information generated from market transactions involving identical or comparable assets or liabilities. The income approach uses valuation techniques to convert future amounts to a single present value amount. The measurement is based on the value indicated by current market expectations about those future amounts. The cost approach is based on the amount that would currently be required to replace an asset.
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For certain of the Company’s financial instruments, including cash and cash equivalents, restricted cash, short-term investment, accounts receivable, advances to suppliers, inventories, prepayments and other current assets, accounts payable, notes payables, advances from customers, taxes payable, bank overdrafts, short term loans and other current liabilities, the carrying amounts approximate their fair values due to the short maturities.
Recently Adopted Accounting Pronouncements
In December 2019, the FASB issued ASU No. 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes (“ASU 2019-12”) as part of its overall simplification initiative to reduce costs and complexity of applying accounting standards. ASU 2019-12 removes certain exceptions from Topic 740, Income Taxes, including (i) the exception to the incremental approach for intra period tax allocation; (ii) the exception to accounting for basis differences when there are ownership changes in foreign investments; and (iii) the exception in interim period income tax accounting for year-to-date losses that exceed anticipated losses. ASU 2019-12 also simplifies GAAP in several other areas of Topic 740 such as (i) franchise taxes and other taxes partially based on income; (ii) transactions with a government that result in a step up in the tax basis of goodwill; (iii) separate financial statements of entities not subject to tax; and (iv) enacted changes in tax laws in interim periods. ASU 2019-12 is effective for public entities for annual reporting periods and interim periods within those years beginning after December 15, 2020, and early adoption is permitted. The Company adopted this guidance on January 1, 2021. The adoption of this guidance did not have a material impact on the Company’s consolidated financial statements and related disclosures.
Recently Issued Accounting Pronouncements Not Yet Adopted
In March 2020, the FASB issued ASU 2020-04, Reference Rate Reform, (Topic 848). The amendments in Topic 848 provide optional expedients and exceptions for applying GAAP to contracts, hedging relationships, and other transactions affected by reference rate reform if certain criteria are met. Topic 848 can be applied by all entities as of the beginning of the interim period that includes March 12, 2020, or any date thereafter, and entities may elect to apply the amendments prospectively through December 31, 2022. The Company did not utilize the optional expedients and exceptions provided by this standard during the year ended December 31, 2021. The Company is evaluating the impact of this standard on its consolidated financial statements and disclosures.
Impact of Inflation
We do not believe the impact of inflation on our Company is material. Our operations are in China and China’s inflation rates have been relatively stable in the last three years: 1.1% in 2021, 2.6% in 2020, and 2.3% in 2019.
Impact of Foreign Currency Fluctuations
We do not believe the impact of foreign currency fluctuations on our Company is material. Regarding purchase of raw materials, we are subject to commodity price risks arising from price fluctuations in the market prices of the raw materials. We have generally been able to pass on cost increases through price adjustments. However, the ability to pass on these increases depends on market conditions influenced by the overall economic conditions in China.
Most of our oversea sales are denominated in US dollars, for which our oversea sales are exempted from the risk of foreign currency fluctuation.
We have not had any foreign currency investments hedged by currency borrowings or other hedging instruments. We manage our price risks through productivity improvements and cost-containment measures
| ITEM 6. | DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES |
| A. | Directors and senior management |
The following table sets forth our executive officers and directors, their ages and the positions held by them as of April 29, 2022:
| Name | Age | Position | ||
| Dandan Liu | 34 | Chief Executive Officer, Class A Director | ||
| Feng Zhang | 39 | Chief Financial Officer, Class A Director | ||
| Caifen Zou(1) (2) (3) | 57 | Class B Director, independent | ||
| Qiu Li (1) (2) (3) | 61 | Class B Director, independent | ||
| Owens Meng (1) (2) (3) | 44 | Class C Director, independent |
| (1) | Member of the Audit Committee. |
| (2) | Member of the Compensation Committee. |
| (3) | Member of the Nominating and Corporate Governance Committee. |
Dandan Liu was appointed as the Company’s Chief Executive Officer effective as of August 2, 2019 and Chair on September 15, 2021. Dandan Liu has served as a Class A director of the Company since February 2019. Ms. Liu founded Beijing Houxin Investments Co., Ltd. in June 2012 and served as its Chief Executive Officer and Chairman from June 2012 to July 2020. Ms. Liu’s valuable entrepreneurial, management, and investment experience together with her in-depth knowledge of the Company provide her with the qualifications and skills to serve as a director of our Company.
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Feng Zhang was appointed as the Company’s Chief Financial Officer on February 19, 2020. From August 2018 to September 2019, Feng Zhang worked as Senior Accounting Manager for Beijing Longguang Energy Technology Co., Ltd. From July 2017 to July 2018, Mr. Zhang worked as Accounting Manager for Hebei Yinlong Renewable Energy Co., Ltd. From March 2015 to June 2017, Mr. Zhang worked as Audit Manager for Beijing Xinghua Certified Public Accountants Firm (Partnership). From June 2006 to February 2015, Mr. Zhang worked as Accounting Manager for Boda Instrument Group Co., Ltd. Mr. Zhang is a Certified Public Accountant and received his bachelor degree in Assets Appraisal from Hebei Agricultural University.
Qiu Li is an independent director of the company. Ms. Li has been Senior Consultant of Hangzhou Guohan Financial Holding Co., Ltd. since November 2015. Between March 2010 and October 2015, Ms. Li was director of audit of Hengfeng Bank Hangzhou Branch. Between November 1987 and March 2010, Ms. Li held several managerial positions at Hengfeng Bank headquarter. Ms. Li is a China Certified Public Accountants (CPA). Ms. Li holds a Bachelor’s degree in Management from Shandong Cadres Correspondence University. The Board of Directors determined that Ms. Li should serve as our director based on her experience in business and accounting matters.
Caifen Zou has served as Senior Advisor of Shandong Renhe Guarantee Company since August 2019. From December 1993 to July 2019, Ms. Zou has served in a number of senior executive roles within CITIC Bank Weihai Branch, including senior manager of Personal Credit Department, general manager of Retail Banking Department, and deputy section chief of Accounting Department, etc. Ms. Zou received her Associate’s degree in Administration Management from Shandong Normal University, and held Intermediate Accountant Qualification Certificate and Intermediate Economist Qualification Certificate in China. The Board of Directors determined that Ms. Zou should serve as our director based on her experience and expertise in accounting, management and internal controls.
Owens Meng is an independent director. Since September 2013, Owens Meng has been the managing director of Beijing Songlin Xinya Financial Consultants, Ltd. From November 2007 to September 2013, he served as chief representative of Sherb Consulting LLC Beijing Representative Office, and managing director of Sherb & Co, LLP, a mid-sized accounting firm which has audited more than 25 China-based, US publicly traded companies. From July 2003 to October 2007, Mr. Meng worked as an audit manager for Grant Thornton Beijing. Mr. Meng received his CPA permit from the state of Delaware, and is a member of China Institute of Certified Public Accountants (CICPA), and a Certified Internal Auditor of the Institute of Internal Auditors. Mr. Meng holds a Bachelor’s degree in accounting and economics from Beijing Technology and Business University. Mr. Meng has served as an independent director of China Customer Relations Centers, Inc. (Nasdaq: CCRC) since September 2014. Mr. Meng was nominated as a director because of his experience in auditing, US GAAP and compliance issues.
Under British Virgin Islands law, our directors have a duty to act honestly, in good faith and with a view to our best interests. Our directors also have a duty to exercise the care, diligence and skills that a reasonably prudent person would exercise in comparable circumstances. In fulfilling their duty of care to us, our directors must ensure compliance with our memorandum and articles of association. We have the right to seek damages if a duty owed by our directors is breached. The functions and powers of our board of directors include, among others:
| ● | appointing officers and determining the term of office of the officers; |
| ● | authorizing the payment of donations to religious, charitable, public or other bodies, clubs, funds or associations as deemed advisable; |
| ● | exercising the borrowing powers of the company and mortgaging the property of the company; |
| ● | executing checks, promissory notes and other negotiable instruments on behalf of the company; and maintaining or registering a register of mortgages, charges or other encumbrances of the company. |
A director may vote, attend a board meeting or sign a document on our behalf with respect to any contract or transaction in which he or she is interested. A director must promptly disclose the interest to all other directors after becoming aware of the fact that he or she is interested in a transaction we have entered into or are to enter into. A general notice or disclosure to the board or otherwise contained in the minutes of a meeting or a written resolution of the board or any committee of the board that a director is a shareholder, director, officer or trustee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company will be sufficient disclosure, and, after such general notice, it will not be necessary to give special notice relating to any particular transaction.
The directors may receive such remuneration as our board of directors may determine from time to time. Each director is entitled to be repaid or prepaid for all traveling, hotel and incidental expenses reasonably incurred or expected to be incurred in attending meetings of our board of directors or committees of our board of directors or shareholder meetings or otherwise in connection with the discharge of his or her duties as a director. The compensation committee will assist the directors in reviewing and approving the compensation structure for the directors. Our board of directors may exercise all the powers of the company to borrow money and to mortgage or charge our undertakings and property or any part thereof, to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the company or of any third party.
A director is not required to hold shares as a qualification to office.
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| B. | Compensation |
The following table shows the annual compensation paid by us for the years ended December 31, 2021 and 2020 to our principal executive officers. No officer had a salary during either of the previous two years of more than $100,000.
| Name and principal position | Year | Salary ($) | Bonus ($) | Total Paid ($) | ||||||||||||
| Dandan Liu | 2021 | 60,000 | - | 0 | ||||||||||||
| CEO and director | 2020 | 60,000 | - | - | ||||||||||||
| Feng Zhang (1) | 2021 | 45,000 | - | - | ||||||||||||
| CFO | 2020 | 30,850 | - | - | ||||||||||||
| (1) | Appointed as the Company’s Chief Financial Officer on February 19, 2020. |
Compensation Committee Interlocks and Insider Participation
None of our officers currently serves, or has served during the last completed fiscal year, on the compensation committee or board of directors of any other entity that has one or more officers serving as a member of our board of directors.
Director Compensation
Employee directors do not receive any compensation for their services. Non-employee directors are entitled to receive compensation for their actual travel expenses for each Board meeting attended. We paid $10,000 compensation to each of our non-employee directors during each of the years ended December 31, 2021 and 2020.
Limitation of Director and Officer Liability
Under British Virgin Islands law, each of our directors and officers, in performing his or her functions, is required to act honestly and in good faith with a view to our best interests and exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Our memorandum and articles of association provide that, to the fullest extent permitted by British Virgin Islands law or any other applicable laws, our directors will not be personally liable to us or our shareholders for any acts or omissions in the performance of their duties. Such limitation of liability does not affect the availability of equitable remedies such as injunctive relief or rescission. These provisions will not limit the liability of directors under United States federal securities laws.
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We may indemnify any of our directors or anyone serving at our request as a director of another entity against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred in connection with legal, administrative or investigative proceedings. We may only indemnify a director if he or she acted honestly and in good faith with the view to our best interests and, in the case of criminal proceedings, the director had no reasonable cause to believe that his or her conduct was unlawful. The decision of our board of directors as to whether the director acted honestly and in good faith with a view to our best interests and as to whether the director had no reasonable cause to believe that his or her conduct was unlawful, is in the absence of fraud sufficient for the purposes of indemnification, unless a question of law is involved. The termination of any proceedings by any judgment, order, settlement, conviction or the entry of no plea does not, by itself, create a presumption that a director did not act honestly and in good faith and with a view to our best interests or that the director had reasonable cause to believe that his or her conduct was unlawful. If a director to be indemnified has been successful in defense of any proceedings referred to above, the director is entitled to be indemnified against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred by the director or officer in connection with the proceedings.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted for our directors or officers 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 as a matter of United States law.
Retirement Benefits
As of December 31, 2021, we have contributed to the government-mandated employee welfare and retirement benefit plan and provided pension, retirement or similar benefits to its employees. The PRC regulations require us to pay the local labor administration bureau a monthly contribution at a stated contribution rate based on the monthly basic compensation of qualified employees. The local labor administration bureau, which manages various investment funds, will take care of employee retirement, medical and other fringe benefits. We have no further commitments beyond our monthly contribution.
Employment Agreements
Employment agreement with Dandan Liu, CEO
On August 2, 2019, TDH Holdings, Inc. entered into an employment agreement with Dandan Liu to serve in the role of Chief Executive Officer for the initial period of 3 years (commencing as of August 2, 2019 and terminating on July 31, 2022), which term may be automatically renewed for another 3 years unless either party to the agreement terminates the agreement at least 60 days prior to the expiration of the term. Under the terms of this agreement, Ms. Liu’s salary is USD 1,000 per month until end of December 2019. Thereafter Ms. Liu’s annual salary is USD 60,000 payable in 12 equal monthly installments until July 31, 2022. Ms. Liu may be eligible to receive an annual bonus in the amount of 10% of the growth in book value as of the last fiscal year end, subject to review of corporate performance goals set forth by the Compensation Committee. The Compensation Committee will have the sole discretion whether Ms. Liu is entitled to the bonus and the amount of the payment, if any. The employment agreement may be terminated by either party upon 60 days advance notice to the other party. The Company will reimburse Ms. Liu for all reasonable out of pocket expenses in connection with travel, entertainment and other expenses incurred in the performance of her duties. The agreement also contains certain confidentiality, non-disclosure and other provisions that are customary to the agreements of this nature.
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Employment agreement with Feng Zhang, CFO
On January 4, 2021, TDH Holdings, Inc. entered into an employment agreement with Feng Zhang to serve in the role of Chief Financial Officer for the initial period of three years, (commencing as of January 4, 2021 and terminating on January 3, 2024). Under the terms of this agreement, Mr. Zhang’s annual salary is USD 48,000 payable in 12 equal monthly installments. The employment agreement may be terminated by either party upon 15-day advance notice to the other party. The Company will reimburse Mr. Zhang for all reasonable out of pocket expenses in connection with travel, entertainment and other expenses incurred in the performance of his duties. The agreement also contains certain confidentiality, non-disclosure and other provisions that are customary to the agreements of this nature.
| C. | Board Practices |
Composition of Board; Risk Oversight
Our Board of Directors presently consists of five directors. The Board membership is divided into three classes, Class A, B and C, respectively, as nearly equal in number as the total number of directors permits. Class A directors will face re-election at our next annual meeting of shareholders and every three years thereafter. Class B directors will face re-election at our second annual meeting of shareholders and every three years thereafter. Class C directors will face re-election at our third annual meeting of shareholders and every three years thereafter.
Except as noted above, there are no family relationships between any of our executive officers and directors. Officers are elected by, and serve at the discretion of, the board of directors. Our board of directors shall hold meetings on at least a quarterly basis. As a smaller reporting company under the NASDAQ rules we are only required to maintain a board of directors comprised of at least 50% independent directors, and an audit committee of at least two members, comprised solely of independent directors who also meet the requirements of Rule 10A-3 under the Securities Exchange Act of 1934. There are no membership qualifications for directors. Further, there are no share ownership qualifications for directors unless so fixed by us in a general meeting. There are no other arrangements or understandings pursuant to which our directors are selected or nominated. Our board plays a significant role in our risk oversight. The board makes all relevant Company decisions. As such, it is important for us to have our Chief Executive Officer serve on the board as he plays key roles in the risk oversight or the Company. As a smaller reporting company with a small board of directors, we believe it is appropriate to have the involvement and input of all of our directors in risk oversight matters.
Director Independence
Our board has reviewed the independence of our directors, applying the NASDAQ independence standards. Based on this review, the board determined that each of Caifen Zou, Qiu Li, and Owens Meng are “independent” within the meaning of the NASDAQ rules. In making this determination, our board considered the relationships that each of these non-employee directors has with us and all other facts and circumstances our board deemed relevant in determining their independence. As required under applicable NASDAQ rules, we anticipate that our independent directors will meet on a regular basis as often as necessary to fulfill their responsibilities, including at least annually in executive session without the presence of non-independent directors and management.
Board Committees
Currently, three committees have been established under the board: the Audit Committee, the Compensation Committee and the Nominating Committee.
The Audit Committee is responsible for overseeing the accounting and financial reporting processes of our company and audits of the financial statements of our company, including the appointment, compensation and oversight of the work of our independent auditors. The Compensation Committee of the board of directors reviews and makes recommendations to the board regarding our compensation policies for our officers and all forms of compensation, and also administers our incentive compensation plans and equity-based plans (but our board retains the authority to interpret those plans). The Nominating Committee of the board is responsible for the assessment of the performance of the board, considering and making recommendations to the board with respect to the nominations or elections of directors and other governance issues. The nominating committee considers diversity of opinion and experience when nominating directors.
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Audit Committee
The Audit Committee will be responsible for, among other matters:
| ● | appointing, compensating, retaining, evaluating, terminating, and overseeing our independent registered public accounting firm; |
| ● | discussing with our independent registered public accounting firm the independence of its members from its management; |
| ● | reviewing with our independent registered public accounting firm the scope and results of their audit; |
| ● | approving all audit and permissible non-audit services to be performed by our independent registered public accounting firm; |
| ● | overseeing the financial reporting process and discussing with management and our independent registered public accounting firm the interim and annual financial statements that we file with the SEC; |
| ● | reviewing and monitoring our accounting principles, accounting policies, financial and accounting controls, and compliance with legal and regulatory requirements; |
| ● | coordinating the oversight by our board of directors of our code of business conduct and our disclosure controls and procedures; |
| ● | establishing procedures for the confidential and/or anonymous submission of concerns regarding accounting, internal controls or auditing matters; and |
| ● | reviewing and approving related-party transactions. |
Our Audit Committee consists of Caifen Zou, Qiu Li, and Owens Meng, with Owens Meng serving as chair of the Audit Committee. Our board has affirmatively determined that each of the members of the Audit Committee meets the definition of “independent director” for purposes of serving on an Audit Committee under Rule 10A-3 of the Exchange Act and NASDAQ rules. In addition, our board has determined that Lei Wang qualifies as an “audit committee financial expert” as such term is currently defined in Item 407(d)(5) of Regulation S-K and meets the financial sophistication requirements of the NASDAQ rules.
Compensation Committee
The Compensation Committee will be responsible for, among other matters:
| ● | reviewing and approving, or recommending to the board of directors to approve the compensation of our CEO and other executive officers and directors; |
| ● | reviewing key employee compensation goals, policies, plans and programs; |
| ● | administering incentive and equity-based compensation; |
| ● | reviewing and approving employment agreements and other similar arrangements between us and our executive officers; and |
| ● | appointing and overseeing any compensation consultants or advisors. |
Our Compensation Committee consists of Caifen Zou, Qiu Li, and Owens Meng, with Qiu Li serving as chair of the Compensation Committee. Our board has affirmatively determined that each of the members of the Compensation Committee meets the definition of “independent director” for purposes of serving on Compensation Committee under NASDAQ rules.
Nominating Committee
The Nominating Committee will be responsible for, among other matters:
| ● | selecting or recommending for selection candidates for directorships; |
| ● | evaluating the independence of directors and director nominees; |
| ● | reviewing and making recommendations regarding the structure and composition of our board and the board committees; |
| ● | developing and recommending to the board corporate governance principles and practices; |
| ● | reviewing and monitoring the Company’s Code of Business Conduct and Ethics; and |
| ● | overseeing the evaluation of the Company’s management |
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Our Nominating Committee consists of consists of Caifen Zou, Qiu Li, and Owens Meng, with Caifen Zou serving as chair of the Nominating Committee. Our board has affirmatively determined that each of the members of the Nominating Committee meets the definition of “independent director” for purposes of serving on a Nominating Committee under NASDAQ rules.
Duties of Directors
Under British Virgin Islands law, our directors have a duty to act honestly, in good faith and with a view to our best interests. Our directors also have a duty to exercise the care, diligence and skills that a reasonably prudent person would exercise in comparable circumstances. In fulfilling their duty of care to us, our directors must ensure compliance with our memorandum and articles of association. We have the right to seek damages if a duty owed by our directors is breached. The functions and powers of our board of directors include, among others:
| ● | appointing officers and determining the term of office of the officers; |
| ● | authorizing the payment of donations to religious, charitable, public or other bodies, clubs, funds or associations as deemed advisable; |
| ● | exercising the borrowing powers of the company and mortgaging the property of the company; |
| ● | executing checks, promissory notes and other negotiable instruments on behalf of the company; and maintaining or registering a register of mortgages, charges or other encumbrances of the company. |
A director may vote, attend a board meeting or sign a document on our behalf with respect to any contract or transaction in which he or she is interested. A director must promptly disclose the interest to all other directors after becoming aware of the fact that he or she is interested in a transaction we have entered into or are to enter into. A general notice or disclosure to the board or otherwise contained in the minutes of a meeting or a written resolution of the board or any committee of the board that a director is a shareholder, director, officer or trustee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company will be sufficient disclosure, and, after such general notice, it will not be necessary to give special notice relating to any particular transaction.
The directors may receive such remuneration as our board of directors may determine from time to time. Each director is entitled to be repaid or prepaid for all traveling, hotel and incidental expenses reasonably incurred or expected to be incurred in attending meetings of our board of directors or committees of our board of directors or shareholder meetings or otherwise in connection with the discharge of his or her duties as a director. The compensation committee will assist the directors in reviewing and approving the compensation structure for the directors. Our board of directors may exercise all the powers of the company to borrow money and to mortgage or charge our undertakings and property or any part thereof, to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the company or of any third party.
Limitation on Liability and Other Indemnification Matters
British Virgin Islands law does not limit the extent to which a company’s memorandum and articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the British Virgin Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime. Under our memorandum and articles of association, we may indemnify our directors, officers and liquidators against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred in connection with civil, criminal, administrative or investigative proceedings to which they are party or are threatened to be made a party by reason of their acting as our director, officer or liquidator. To be entitled to indemnification, these persons must have acted honestly and in good faith with a view to the best interest of the company and, in the case of criminal proceedings, they must have had no reasonable cause to believe their conduct was unlawful. Insofar as indemnification for liabilities arising under the Securities Act may be permitted for our directors or officers 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 as a matter of United States law.
| D. | Employees |
The table below provides information as to the total number of employees at the end of the last three fiscal years. We have no contracts or collective bargaining agreements with labor unions and have never experienced work stoppages due to labor dispute. We consider our relations with our employees to be good.
| 2019 | 2020 | 2021 | ||||||||||
| Number of Employees | 50 | 54 | 42 | |||||||||
| E. | Share Ownership |
See Item 7 below.
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| ITEM 7. | MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS |
| A. | Major shareholders |
The following table identifies the share ownership of each of our directors, each of our named executive officers, and all directors and officers as a group. There is no known person to us that beneficially own more than 5% of our shares. Except as otherwise indicated, the shareholders listed in the table have sole voting and investment powers with respect to the shares indicated. Our major shareholders do not have different voting rights than any other holder of our shares.
Shares which an individual or group has a right to acquire within 60 days pursuant to the exercise or conversion of options, warrants or other similar convertible or derivative securities are deemed to be outstanding for the purpose of computing the percentage ownership of such individual or group, but are not deemed to be outstanding for the purpose of computing the percentage ownership of any other person shown in the table.
Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission and generally includes voting and investment power. Except as otherwise indicated below, each beneficial owner holds voting and investment power directly. The percentage of ownership is based on 126,260,157 shares issued and outstanding as of April 29, 2022. Unless otherwise indicated, the address of each beneficial owner listed in the table below is c/o Qingdao Tiandihui Foodstuffs Co. Ltd., 2521 Tiejueshan Road, Huangdao District, Qingdao, Shandong Province, PRC.
| Name of Beneficial Owner | Shares Owned | Percentage | ||||||
| Dandan Liu | 27,093,921 | 21.46 | % | |||||
| Rongfeng Cui (1) | 2,287,324 | 1.81 | % | |||||
| Feng Zhang | - | - | ||||||
| Caifen Zou (1) | - | - | ||||||
| Qiu Li (1) | - | - | ||||||
| Owens Meng (1) | - | - | ||||||
| Directors & executive officers as a group (6 persons) | 29,381,245 | 23.27 | % | |||||
| (1) | Independent director. |
| B. | Related Party Transactions |
The related parties had transactions for the years ended December 31, 2021, 2020 and 2019 consist of the following:
| Name of Related Party | Nature of Relationship at December 31, 2021 | |
| Dandan Liu | Chairman of the Board, Shareholder, Chief Executive Officer (“CEO”) | |
| Rongfeng Cui | Former Chairman of the Board and Former CEO. Rongfeng Cui ceased to be the CEO of the Company effective August 2, 2019. | |
| Rongbing Cui | Former Chief Financial Officer (“CFO”), Rongfeng Cui’s brother | |
| Feng Zhang | Chief Financial Officer (“CFO”) | |
| Yanjuan Wang | Rongfeng Cui’s wife | |
| Yan Fu | Former Sales Vice President | |
| Yuxiang Qi | Dandan Liu’s mother | |
| Tide (Shanghai) Industrial Co. Ltd. (“Tide”) | Owned by Rongfeng Cui and Yanjuan Wang |
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| Qingdao Like Pet Supplies Co., Ltd. (“Like”) | Rongfeng Cui served as CEO, and Shuhua Cui, sister of Rongfeng Cui, served as the legal person. On May 26, 2016, both Rongfeng Cui and Shuhua Cui resigned from their positions, but still have significant influence on Like. | |
| Qingdao Saike Environmental Technology Co., Ltd. (“Saike”) | Owned by Rongfeng Cui and Yanjuan Wang | |
| Huangdao Ding Ge Zhuang Kangkang Family Farm (“Kangkang Family Farm”) | Controlled by Rongfeng Cui’s father | |
| TDH Group BVBA | A Belgium company solely owned by Rongfeng Cui prior to November 30, 2018; a wholly owned subsidiary of the Company since November 30, 2018 | |
| TDH JAPAN | A Japanese company solely owned by Rongfeng Cui prior to November 30, 2018; a wholly owned subsidiary of the Company since November 30, 2018. Dissolved in February 2021. | |
| Qingdao Yinhe Jiutian Information Technology Co., Ltd. (“Yinhe Jiutian”) | Solely owned by Rongbing Cui | |
| Huangdao Hanyinhe Software Development Center Co., Ltd. (“Hanyinhe”) | Solely owned by Xiaomei Wang | |
| Zhenyu Trading (Qingdao) Co., Ltd. (“Zhenyu”) | Noncontrolling shareholder of Yichong prior to September 27, 2019; Sole shareholder of Yichong after September 27, 2019 | |
| Beijing Quanmin Chongai Information Technology Co., Ltd. (“Quanmin Chongai”) | Rongbing Cui serves as supervisor of Quanmin Chongai | |
| LAI LINGS LENEXA | Raymond Ng is the son of Richard Ng | |
| Products Inc. | Owned by Richard Ng | |
| Bo Lings at Zona Rosa in the Northland | Owned by Richard Ng | |
| Richard Ng | Richard owns 49% control of Far Ling’s Inc. |
Due from related parties, net
Due from related parties, net consisted of the following:
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Tide | $ | - | $ | 46 | ||||
| Rongfeng Cui | - | 44,484 | ||||||
| Less: Allowance for credit losses | - | (44,530 | ) | |||||
| Due from related parties, net | $ | - | $ | - | ||||
The balance of due from Tide represents operating expenses paid by the Company on behalf of Tide. The balances of due from Rongfeng Cui represents overseas trade receivables collected by him on behalf of the Company.
Due to related parties
Due to related parties consisted of the following:
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Rongbing Cui | 10,979 | 10,724 | ||||||
| Rongfeng Cui | 216,529 | 31,297 | ||||||
| Dandan Liu | 75,992 | - | ||||||
| Feng Zhang | 1,568 | - | ||||||
| Products Inc. | 2,441 | - | ||||||
| Total | $ | 307,509 | $ | 42,021 | ||||
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The balance of due to related parties represents expenses paid by related parties on behalf of the Company as well as advances the Company obtained from related parties for working capital purposes. The amounts owed to the related parties are unsecured, non-interest bearing and payable on demand.
Short term loans from related parties
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Rongfeng Cui | $ | 285,878 | $ | 782,773 | ||||
| Yuxiang Qi | 269,218 | 172,471 | ||||||
| Yan Fu | - | 30,639 | ||||||
| Total | $ | 555,096 | $ | 985,883 | ||||
In March 2018, TDH Group BVBA borrowed non-interest bearing, unsecured long term loans from Rongfeng Cui in the aggregate amount of €250,000 (approximately $288,000), of which €60,000 (approximately $69,000), €60,000 (approximately $69,000), €60,000 (approximately $69,000), €60,000 (approximately $69,000), €10,000 (approximately $11,500) and $0 is due in the years ended December 31, 2019, 2020, 2021, 2022, 2023 and thereafter, respectively. The Company did not make any repayment to Rongfeng Cui during the years ended December 31, 2019 and 2020 nor subsequently, such default may lead to callable of the loan at any time by Rongfeng Cui. As a result, the corresponding loan was classified as current liability and included in short term loans – related parties as of December 31, 2021 and 2020. The Company is aware of the possible penalty and/or other consequence due to the default, however, no reasonable estimate can be made at this time.
The Company borrowed unsecured short term loans from related parties in the amount of $0 and $49,350 during the years ended December 31, 2021 and 2020, respectively. Interest rate for the loans outstanding during the year ended December 31, 2021 ranged from 0% to 25% per annum. The Company made repayment in the amount of $0 and $0 during the years ended December 31, 2021 and 2020, respectively.
Modification of Loans from related party
In January 2018, the Company entered into a loan agreement with Dandan Liu. In May 2018, the agreement was amended to, among others, reclassify unpaid interest payable to the principal of the loan, resulting in an increase of principal from RMB3,000,000 (approximately $466,000) to RMB3,030,000 (approximately $471,000) and increase the interest rate from 3% to 15%. Interest rate will be 24% for the period past due. In March 2019, the agreement was further amended to, among others, reclassify unpaid interest payable to the principal of the loan, resulting in an increase of principal to RMB3,484,500 (approximately $539,000) and extend the maturity date from January 2019 to May 2019. As of Dec. 31, 2021, the loan had $75,992 of interest outstanding.
In June 2018, the Company entered into a loan agreement with Yuxiang Qi. Interest rate was 15% during the loan period and 24% for the period past due. In March 2019, the agreement was amended to, among others, reclassify unpaid interest payable to the principal of the loan, resulting in an increase of principal from RMB3,000,000 (approximately $462,000) to RMB3,405,000 (approximately $522,000) and extend the maturity date from December 2018 to May 2019. As of December 31, 2021 and 2020, the Company was in default of this loan, and was subject to 24% annual interest rate.
The Company analyzed the amendments under ASC 470-50 and concluded that these amendments did not qualify for debt modification.
The interest expenses for loans from related parties amounted to $29,581, $43,835 and $632,251 for the years ended December 31, 2021, 2020 and 2019, respectively.
Sales to related parties, purchases from related parties and services provided by related parties
| For the Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| SALES TO: | ||||||||||||
| Like | $ | - | $ | - | $ | - | ||||||
| Zhenyu | - | - | 5,778 | |||||||||
| Quanmin Chongai | - | - | 187,063 | |||||||||
| Liujiayi | - | - | - | |||||||||
| TDH Group BVBA | - | - | - | |||||||||
| Total Sales | $ | - | $ | - | $ | 192,841 | ||||||
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For the years ended December 31, 2021, 2020 and 2019, the cost of revenue in connection with sales to related parties were $0, $0 and $178,636, respectively, which were included in cost of revenue-related parties in the accompanying consolidated statement of operations and comprehensive loss.
During the years ended December 31, 2021, 2020 and 2019, inventories purchased from related parties in the amount of $0, $0 and $0.
Accounts payable to related parties
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Yinhe Jiutian | $ | 122,481 | $ | 119,629 | ||||
| Kangkang Family Farm | 5,142 | 5,022 | ||||||
| Zhenyu Trading | 65 | 64 | ||||||
| Total | $ | 127,668 | $ | 124,715 | ||||
Leases from related parties
The Company has entered into certain lease agreements with its related parties. Operating lease right-of-use assets and operating lease liabilities arising from leases with related parties are as follows:
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Operating lease right-of-use assets, related parties | - | 270,852 | ||||||
| Operating lease liability-related parties, current | - | 195,231 | ||||||
| Operating lease liabilities-related party, non-current | - | 274,794 | ||||||
| Total operating lease liabilities, related parties | $ | - | $ | 470,025 | ||||
| C. | Interests of Experts and Counsel |
Not required.
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| ITEM 8. | FINANCIAL INFORMATION |
| A. | Consolidated Statements and Other Financial Information. |
See Item 18 for our audited consolidated financial statements.
Legal Proceedings
Except as set forth below, we are not involved in any legal proceedings; nor are we aware of any claims that could have a material adverse effect on our business, financial condition, results of operations or cash flows.
| ● | Legal claims by vendors and lenders. During the months of November 2019 to April 2021, the Company has been a subject of 57 lawsuits by its raw material supplies, printing and packaging supplies, transportation companies and other vendors. The claims raised in these lawsuits pertain to the Company’s non-payment of various invoices for supplier and vendor services rendered, with interest and costs. As of the date of this Annual Report, the creditors of 44 cases have reached civil conciliation letters with our company, and the court has issued civil judgments in 9 cases, another four withdrew their cases for reasons including lack of evidence. The mediation and judgment is estimated approximately RMB13.86 million (USD2.12 million). On March 13, 2021, the land and factory buildings above the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were auctioned by the court for $5,098,461 (RMB33.14 million). On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
On December 2, 2019, Qingdao Lingang Real Estate Co., Ltd. (“QLRE”), filed a civil lawsuit against Qingdao Tiandihui Foodstuffs Co., Ltd., Rongfeng Cui, and Yanjuan Wang. The Company entered into a loan agreement with QLRE in 2018 and borrowed RMB20 million (USD3.18 million) from QLRE ub connection of purchase of a factory. The loan was guaranteed by Rongfeng Cui and his wife, Yanjuan Wang. The Company failed to make repayment to QLRE on time. On March 4, 2020, the Court has ruled that: (i) the Company to repay QLRE with loan principal of RMB 20 million plus interest of RMB 550,000 accrued as of October 31, 2019; The payment should be made within 10 business days after the court ruling takes effect (ii) assume and pay the interest at the rate of 2% per month for the period from the date of November 1, 2019 to the date of full discharge of the debt. If the debt not paid within the required timeframe, interest shall be doubled from the date of court order takes effective until the date of full discharge of the debt; (iii) Rongfeng Cui and Yanjuan Wang, as guarantors, shall bear joint and several responsibilities for clearing the debts and (iv) The Company and Rongfeng Cui shall jointly bear the litigation fee of RMB77,000 (USD$11,933). As of December 31, 2021, we had not made the loan repayment to QLRE. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
On January 15, 2020, China Construction Bank (“CCB”), instituted a civil claim against Qingdao Tiandihui Foodstuffs Co., Ltd., Rongfeng Cui, and Yanjuan Wang. The plaintiff alleges that it executed a loan agreement with the Company in the amount of RMB19.93 million (USD3.08 million) for the purchase of manufacturing facility and the associated land use right located at Lingang Economic Development Zone, Huangdao District, Qingdao, Shandong Province, People’s Republic of China. Rongfeng Cui and his wife, Yanjuan Wang, co-signed for this loan as personal guarantors subject to joint and several liability in connection with the loan. The loan with CCB was guaranteed by Rongfeng Cui and Yanjuan Wang, pledged by the aforementioned manufacturing facilities and associated land use right. On April 14, 2020, the Court has ruled that i) the Company to repay RMB19.93 million (USD3.25 million) of principal and accrued interest to CCB, ii) to execute the sale of the mortgaged property and iii) Rongfeng Cui and Yanjuan Wang to bear joint and several security liability for the payment. On March 13, 2021, the land and factory buildings above the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were auctioned by the court for $5,098,461 (RMB33.14 million), among which, $3,192,827 (RMB21.14 million) has been used to repay loan principal and accrued interest to CCB based on the court order. The repayment has been completed as of the date of this filing. |
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On November 11, 2019, Shanghai Pudong Development Bank Qingdao Branch(“SPDB”), filed a civil lawsuit against Qingdao Tiandihui Foodstuffs Co., Ltd., Qingdao Saike Environmental Technology Co., Ltd. (“Saike”), Qingdao Gaochuang Technology Finance Guarantee Co., Ltd. (“Gaochuang”), Rongfeng Cui, and Yanjuan Wang. In 2018, the Company entered into agreements with SPDB to borrow an aggregate of RMB4.85 million (USD0.75 million) from SPDB for working capital purpose. The borrowing from SPDB was guaranteed by Rongfeng Cui and Yanjuan Wang, pledged by land use right and real property of Saike and a real property of Rongfeng Cui and Yanjuan Wang. The Company failed to make repayment to SPDB on time. On October 24, 2020, the court has ruled that, (i) the Company to repay SPDB with bank acceptance draft principals and interest at the annual interest rate of 18.25%. The payment should be made within 10 business days after the court ruling takes effect. If the debt not paid within the required timeframe, interest shall be doubled from the date of court order takes effective until the date of full discharge of the debt (ii) the Company to bear the litigation fees of RMB156,880 (USD 24,312), (iii) Rongfeng Cui and Yanjuan Wang, as guarantors, shall bear joint and several responsibilities for clearing the debts and (iv) if the court decide to auction the pledged land use right and real properties, SPDB shall have the priority right of the repayment from the auction proceeds. As of December 31, 2021, we had not made the repayment to SPDB. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
On December 10, 2019, Qingdao Gaochuang Technology Finance Guarantee Co., Ltd. (“Gaochuang”), initiated a civil claim against Qingdao Tiandihui Foodstuffs Co., Ltd., Qingdao Saike Environmental Technology Co., Ltd. (“Saike”), Rongfeng Cui, and Yanjuan Wang. In 2018, the Company entered into agreements with SPDB for bank acceptance draft and Gaochuang executed the guarantee of SPDB bank acceptance deposit on behalf of the Company in the amount of RMB1.2 million (USD0.19 million). The Company failed to repay the RMB 1.2 million ($0.19 million) deposit to Gaochuang upon the bank acceptance draft maturity date. The deposit made by Gaochuang was guaranteed by certain of the Company’s fixed assets and patent. Saike, Rongfeng Cui and Yanjuan Wang are also subject to joint and several responsibilities. On December 29, 2020, the court has ruled that, (i) the Company to repay the RMB 1.2 million ($0.19 million) deposit to Gaochuang and the interest at the annual interest rate of 4.15%. The payment should be made within 10 business days after the court ruling takes effect. If the debt not paid within the required timeframe, interest shall be doubled from the date of court order takes effective until the date of full discharge of the debt (ii) the Company to bear the litigation fees of RMB83,127(USD 12,882) and (iii) if the court decides to auction the pledged fixed assets and patent, Gaochuang shall have the priority right of the repayment from the auction proceeds. As of December 31, 2021, we had not made the repayment to Gaochuang. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
On May 6, 2020, the Postal Savings Bank of China Limited Weihai Road Sub-branch of Qingdao North District (hereinafter referred to as Postal Savings) filed a civil lawsuit against Qingdao Tiandihui Foodstuffs Co., Ltd., Rongfeng Cui and Yanjuan Wang. The Company entered into two loan agreements with Postal Savings in 2018 and 2019, respectively, and borrowed RMB9.9 million ($1.53 million) in aggregate. The loans are guaranteed by Rongfeng Cui and Yanjuan Wang, pledged by a real property of the Company and a real property of Rongfeng Cui. The Company failed to make repayment to Postal Savings on time. In June 2020, the court has ruled that, i) the Company to repay Postal Savings with principals and interest of the loan, ii) the Company to bear the litigation fees incurred by Postal Savings, iii) if the court decide to auction the pledged real properties, Postal Savings shall have the priority right of the repayment from the auction proceeds and iv) Rongfeng Cui and Yanjuan Wang, as guarantors, shall bear joint and several responsibilities for clearing the debts. As of December 31, 2021, we had not made the repayment to Postal Savings. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
| ● | Labor arbitration claims by former employees. The Company estimates that its headcount will reduce to around 42 full-time employees through the end of this adjustment period. As a result of the layoffs, certain of the Company’s former employees commenced arbitration proceedings against the Company under applicable labor rules and standards, claiming, among others, lost wages, severance payments and/or social security obligations totaling RMB3.68 million (USD0.56 million). As of the reporting date, there were 98 labor arbitrations, of which 6 reached a settlement at the first instance stage, and 92 decisions of the second instance have taken effect. The Company accrued approximately $0.4 million contingent liabilities in other current liabilities on the consolidated balance sheet as of December 31, 2019 and recognized contingent losses of approximately $0.4 million for the year ended December 31, 2019. Upon ruling of these cases, the Company further accrued approximately $0.1 million wage and/or severance payables in other current liabilities on the consolidated balance sheet as of December 31, 2020 and recognized losses of approximately $0.1 million for the year ended December 31, 2020. On March 13, 2021, the land and factory buildings above the land owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were actioned by the court for $5,098,461 (RMB 33.14 million). In 2021, we have paid RMB 3.73 million to substantially settle the labor arbitration cases with our former employees and we only have RMB 0.5 million ($0.08 million) remaining severance payables to them as of December 31, 2021, which we anticipate to fully settle by the end of 2022. Failure to successfully settle the claims could impair our ability to continue as a going concern. |
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Dividend Policy
The holders of shares of our common shares are entitled to dividends out of funds legally available when and as declared by our board of directors. Our board of directors has never declared a dividend and does not anticipate declaring a dividend in the foreseeable future. Should we decide in the future to pay dividends, as a holding company, our ability to do so and meet other obligations depends upon the receipt of dividends or other payments from our operating subsidiary and other holdings and investments. In addition, the operating companies may, from time to time, be subject to restrictions on their ability to make distributions to us, including as a result of restrictive covenants in loan agreements, restrictions on the conversion of local currency into U.S. dollars or other hard currency and other regulatory restrictions. In the event of our liquidation, dissolution or winding up, holders of our common shares are entitled to receive, ratably, the net assets available to shareholders after payment of all creditors.
To date, none of the PRC subsidiaries has made any dividends or distributions to TDH Holdings, Inc. We anticipate that we will retain any earnings to support operations and to finance the growth and development of our business. Therefore, we do not expect to pay cash dividends in the foreseeable future. Under British Virgin Islands law, we may only pay dividends from surplus (the excess, if any, at the time of the determination of the total assets of our company over the sum of our liabilities, as shown in our books of account, plus our capital), and we must be solvent before and after the dividend payment in the sense that we will be able to satisfy our liabilities as they become due in the ordinary course of business; and the realizable value of assets of our company will not be less than the sum of our total liabilities, other than deferred taxes as shown on our books of account, and our capital. If we determine to pay dividends on any of our Common Shares in the future, as a holding company, we will be dependent on receipt of funds from our Hong Kong subsidiaries, TDH HK Limited and TDH Food Limited. Current PRC regulations permit the PRC Subsidiaries to pay dividends to TDH HK Limited and TDH Food Limited only out of their accumulated profits, if any, determined in accordance with Chinese accounting standards and regulations. In addition, each of our subsidiaries in China is required to set aside at least 10% of its after-tax profits each year, if any, to fund a statutory reserve until such reserve reaches 50% of its registered capital. Each of such entity in China is also required to further set aside a portion of its after-tax profits to fund the employee welfare fund, although the amount to be set aside, if any, is determined at the discretion of its board of directors. Although the statutory reserves can be used, among other ways, to increase the registered capital and eliminate future losses in excess of retained earnings of the respective companies, the reserve funds are not distributable as cash dividends except in the event of liquidation.
| B. | Significant Changes |
Except as disclosed elsewhere in this Annual Report, we have not experienced any significant changes since the date of our audited consolidated financial statements included in this Annual Report.
| ITEM 9. | THE OFFER AND LISTING |
| A. | Offer and Listing Details |
We completed our initial public offering on September 21, 2017. Our Common Shares trade under the trading symbol “PETZ” on the NASDAQ Capital Market. As of April 29, 2022, there were approximately 13 holders of record of our Common Shares. This excludes our Common Shares owned by shareholders holding Common Shares under nominee security position listings. On April 28, 2022 the last sales price of our Common Shares as reported on the NASDAQ Capital Market was $0.31 per common share.
| B. | Plan of Distribution |
Not Applicable.
| C. | Markets |
Our shares have been listed on the NASDAQ Stock Market under the symbols PETZ, since September 21, 2017, following the completion of our initial public offering.
| D. | Selling Shareholders |
Not Applicable.
| E. | Dilution |
Not Applicable.
| F. | Expenses of the Issue |
Not Applicable.
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| ITEM 10. | ADDITIONAL INFORMATION |
| A. | Share Capital |
Not Applicable.
| B. | Memorandum and Articles of Association |
The information required by Item 10.B of Form 20-F is included in the section titled “Description of Share Capital” in our Registration Statement on Form F-1 initially filed with the SEC on August 11, 2017 (File No.: 333-219896), which section is incorporated herein by reference.
| C. | Material Contracts |
None
| D. | Exchange controls |
Under British Virgin Islands law, there are currently no restrictions on the export or import of capital, including foreign exchange controls or restrictions that affect the remittance of dividends, interest or other payments to nonresident holders of our shares.
| E. | Taxation |
PRC Enterprise Income Tax
According to the Enterprise Income Tax Law of PRC (the “EIT Law”), which was promulgated on March 16, 2007, last amended in February 2017 and became effective as of January 1, 2008, the income tax for both domestic and foreign-invested enterprises is at a uniform rate of 25%. The Regulation on the Implementation of Enterprise Income Tax Law of the PRC (the “EIT Rules”) was promulgated on December 6, 2007 and became effective on January 1, 2008. On April 14, 2008, the Chinese Ministry of Science and Technology, Ministry of Finance and State Administration of Taxation enacted the Administrative Measures for Certifying High and New Technology Enterprises (the “Certifying Measures”), which retroactively became effective on January 1, 2008 and was amended on January 29, 2016. Under the EIT Law and the Certifying Measures, certain qualified high-tech companies may benefit from a preferential tax rate of 15% if they own their core intellectual properties and are classified into certain industries strongly supported by the Chinese government and set forth by certain departments of the Chinese State Council. Tiandihui was granted the high and new technology enterprise (“HNTE”) qualification valid until the year end of December 2018. The Company was subject to 25% income tax rate in 2019 and 2020. There can be no assurance, however, that Tiandihui will continue to meet the qualifications for such a reduced tax rate. In addition, there can be no guaranty that relevant governmental authorities will not revoke Tiandihui’s “high and new technology enterprise” status in the future. Uncertainties exist with respect to how the EIT Law applies to the tax residence status of Tiandihui and our offshore subsidiaries. Under the EIT Law, an enterprise established outside of China with a “de facto management body” within China is considered a “resident enterprise”, which means that it is treated in a manner similar to a Chinese enterprise for enterprise income tax purposes. Although the implementation rules of the EIT Law define “de facto management body” as a managing body that exercises substantive and overall management and control over the production and business, personnel, accounting books and assets of an enterprise, the only official guidance for this definition currently available is set forth in Circular 82 issued by the State Administration of Taxation, at April 22, 2009 which 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 criteria are satisfied:
| ● | the place where the senior management and core management departments that are in charge of its daily operations perform their duties is mainly located in the PRC; |
| ● | its financial and human resources decisions are made by or are subject to approval by persons or bodies in the PRC; |
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| ● | its major assets, accounting books, company seals, and minutes and files of its board and shareholders’ meetings are located or kept in the PRC; and |
| ● | more than half of the enterprise’s directors or senior management with voting rights frequently reside in the PRC. |
We do not believe that we meet the conditions outlined in the preceding paragraph since Tiandihui does not have a PRC enterprise or enterprise group as our primary controlling shareholder. In addition, we are not aware of any offshore holding companies with a corporate structure similar to the Company that has been deemed a PRC “resident enterprise” by the PRC tax authorities.
If we are deemed a China resident enterprise, we may be subject to the EIT at the rate of 25% on our global income, except that the dividends we receive from our Chinese subsidiaries may be exempt from the EIT to the extent such dividends are deemed dividends among qualified resident enterprises. If we are considered a resident enterprise and earn income other than dividends from our Chinese subsidiaries, a 25% EIT on our global income could significantly increase our tax burden and materially and adversely affect our cash flow and profitability.
PRC Business Tax and VAT
Pursuant to the Provisional Regulation of China on Business Tax last amended on November 10, 2008 and effective as of January 1, 2009 and the Detailed Rules for the Implementation of the Provisional Regulation of China on Business Tax last amended on October 28, 2011 and effective as of November 1, 2011, all entities and individuals engaged in providing taxable services, transfer of intangible assets or the sale of real estate are subject to business tax. According to the Provisional Regulations of the People’s Republic of China on Value-added Tax (2017), which were revised and came into effect on November 20, 2017, the sales of goods, processing, repair and replacement services, sales of services, intangible assets, immovable property and imported goods within the territory of the People’s Republic of China must pay VAT. The amount of VAT payable is calculated as “output VAT” minus “input VAT”, and the rates of VAT are 13% or 9% for sales of our goods as determined by State Administration of Taxation.
People’s Republic of China Taxation
Under the EIT law and EIT Rules, both of which became effective on January 1, 2008, the income tax for both domestic and foreign-invested enterprises is at a uniform rate of 25%, unless they qualify for certain exceptions. On April 14, 2008, the Chinese Ministry of Science and Technology, Ministry of Finance and State Administration of Taxation enacted the Certifying Measures, which retroactively became effective on January 1, 2008 and was amended on January 29, 2016 provide that certain qualified high-tech companies may benefit from a preferential tax rate of 15% if they own their core intellectual properties and are classified into certain industries strongly supported by the Chinese government and set forth by certain departments of the Chinese State Council. Tiandihui was granted the HNTE qualification valid for three years commencing on December 2, 2016. Tiandihui’s status as a “high-tech enterprise” was automatically revoked by the relevant government departments when it expired on December 2, 2019. We are a holding company incorporated in the British Virgin Islands and we gain substantial income by way of dividends from our PRC subsidiaries. The EIT Law and Rules provide that China-sourced income of foreign enterprises, such as dividends paid by a PRC Subsidiary to its equity holders that are non-resident enterprises, will normally be subject to PRC withholding tax at a rate of 10%, unless any such foreign investor’s jurisdiction of incorporation has tax treaty with China that provides for a different withholding arrangement.
British Virgin Islands Taxation
Under the BVI Act as currently in effect, a holder of common shares who is not a resident of the British Virgin Islands is exempt from British Virgin Islands income tax on dividends paid with respect to the common shares and all holders of common shares are not liable to the British Virgin Islands for income tax on gains realized during that year on sale or disposal of such shares. The British Virgin Islands does not impose a withholding tax on dividends paid by a company incorporated or re-registered under the BVI Act. There are no capital gains, gift or inheritance taxes levied by the British Virgin Islands on companies incorporated or re-registered under the BVI Act. In addition, shares of companies incorporated or re-registered under the BVI Act are not subject to transfer taxes, stamp duties or similar charges. There is no income tax treaty or convention currently in effect between the United States and the British Virgin Islands or between China and the British Virgin Islands.
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United States Federal Income Taxation
The following does not address the tax consequences to any particular investor or to persons in special tax situations such as:
| ● | banks; |
| ● | financial institutions; |
| ● | insurance companies; |
| ● | regulated investment companies; |
| ● | real estate investment trusts; |
| ● | broker-dealers; |
| ● | traders that elect to mark to market; |
| ● | U.S. expatriates; |
| ● | tax-exempt entities; |
| ● | persons liable for alternative minimum tax; |
| ● | persons holding our common shares as part of a straddle, hedging, conversion or integrated transaction; |
| ● | persons that actually or constructively own 10% or more of our voting shares; |
| ● | persons who acquired our common shares pursuant to the exercise of any employee share option or otherwise as consideration; or |
| ● | persons holding our common shares through partnerships or other pass-through entities. |
Prospective purchasers are urged to consult their tax advisors about the application of the U.S. Federal tax rules to their particular circumstances as well as the state, local, foreign and other tax consequences to them of the purchase, ownership and disposition of our common shares.
Taxation of Dividends and Other Distributions on our Shares
Subject to the passive foreign investment company rules discussed below, the gross amount of distributions made by us to you with respect to the common 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, 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 common 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. The dividends will not be eligible for the dividends-received deduction allowed in respect of dividends received from other U.S. corporations.
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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 common 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. Under U.S. Internal Revenue Service authority, our common shares will be considered for purpose of clause (1) above to be readily tradable on an established securities market in the United States when they are listed on the NASDAQ Capital Market. You are urged to consult your tax advisors regarding the availability of the lower rate for dividends paid with respect to our common shares, including the effects of any change in law after the date of this Annual Report.
Dividends on our common shares will constitute foreign source income for foreign tax credit limitation purposes. If the dividends are taxed as qualified dividend income (as discussed above), the amount of the dividend taken into account for purposes of calculating the foreign tax credit limitation will be limited to the gross amount of the dividend, multiplied by the reduced rate divided by the highest rate of tax normally applicable to dividends. The limitation on foreign taxes eligible for credit is calculated separately with respect to specific classes of income. For this purpose, dividends distributed by us with respect to our common shares will constitute “passive category income” but could, in the case of certain U.S. Holders, constitute “general category income.”
Taxation of Dispositions of 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 shares 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 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 common shares for more than one year, you will be eligible for the capital gains tax rate of 20% (or lower for individuals in lower tax brackets). The deductibility of capital losses is subject to limitations. Any such gain or loss that you recognize will generally be treated as United States source income or loss for foreign tax credit limitation purposes.
Passive Foreign Investment Company
Based on our current and anticipated operations and the composition of our assets, we do not expect to be a passive foreign investment company, or PFIC, for U.S. federal income tax purposes for our current taxable year ending December 31, 2018. Our actual PFIC status for the current taxable years ending December 31, 2018 will not be determinable until after the close of such year and, accordingly, there is no guarantee that we will not be a PFIC for the current year. PFIC status is a factual determination for each taxable year which cannot be made until the close of the taxable year. A non-U.S. corporation is considered a PFIC for any taxable year if either:
| ● | at least 75% of its gross income 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”). |
We will be treated as owning our proportionate share of the assets and earning our proportionate share of the income of any other corporation in which we own, directly or indirectly, at least 25% (by value) of the stock. We must make a separate determination each year as to whether we are a PFIC. As a result, our PFIC status may change. 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 common shares, our PFIC status will depend in large part on the market price of our common shares. Accordingly, fluctuations in the market price of the common shares may cause us to become a PFIC. If we are a PFIC for any year during which you hold common shares, we will continue to be treated as a PFIC for all succeeding years during which you hold common shares. However, if we cease to be a PFIC, you may avoid some of the adverse effects of the PFIC regime by making a “deemed sale” election with respect to the common shares.
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If we are a PFIC for any taxable year during which you hold common 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 common 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 common 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 common shares; |
| ● | the amount allocated to the current taxable year, and any taxable year prior to the first taxable year in which we were a PFIC, will be treated as ordinary income, and |
| ● | the amount allocated to each other year 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 such years cannot be offset by any net operating losses for such years, and gains realized on the sale of the common shares cannot be treated as capital, even if you hold the common shares as capital assets. |
A U.S. Holder of “marketable stock” (as defined below) in a PFIC may make a mark-to-market election for such stock to elect out of the tax treatment discussed above. If you make a mark-to-market election for the common shares, you will include in income each year an amount equal to the excess, if any, of the fair market value of the common shares as of the close of your taxable year over your adjusted basis in such common shares. You are allowed a deduction for the excess, if any, of the adjusted basis of the common shares over their fair market value as of the close of the taxable year. However, deductions are allowable only to the extent of any net mark-to-market gains on the common 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 common shares, are treated as ordinary income. Ordinary loss treatment also applies to the deductible portion of any mark-to-market loss on the common shares, as well as to any loss realized on the actual sale or disposition of the common shares, to the extent that the amount of such loss does not exceed the net mark-to-market gains previously included for such common shares. Your basis in the common 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 that 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 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 the NASDAQ Capital Market. If the common shares are regularly traded on the NASDAQ Capital Market and if you are a holder of common 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 common shares in any year in which we are a PFIC, you will be required to file U.S. Internal Revenue Service Form 8621 regarding distributions received on the common shares and any gain realized on the disposition of the common shares.
You are urged to consult your tax advisors regarding the application of the PFIC rules to your investment in our common shares and the elections discussed above.
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Information Reporting and Backup Withholding
Dividend payments with respect to our common shares and proceeds from the sale, exchange or redemption of our common shares may be subject to information reporting to the U.S. Internal Revenue Service and possible U.S. backup withholding at a current rate of 28%. Backup withholding will not apply, however, to a U.S. Holder who furnishes a correct taxpayer identification number and makes any other required certification on U.S. Internal Revenue Service Form W-9 or who is otherwise exempt from backup withholding. U.S. Holders who are required to establish their exempt status generally must provide such certification on U.S. Internal Revenue Service Form W-9. U.S. Holders are urged to consult their tax advisors regarding the application of the U.S. information reporting and backup withholding rules. Backup withholding is not an additional tax. Amounts withheld as backup withholding may be credited against your U.S. federal income tax liability, and you may obtain a refund of any excess amounts withheld under the backup withholding rules by filing the appropriate claim for refund with the U.S. Internal Revenue Service and furnishing any required information.
United States Federal Income Taxation
The following sets forth the material British Virgin Islands, Chinese and U.S. federal income tax matters related to an investment in our common shares. It is directed to U.S. Holders (as defined below) of our common shares and is based on laws and relevant interpretations thereof in effect as of the date of this Annual Report, all of which are subject to change. This description does not deal with all possible tax consequences relating to an investment in our common shares, such as the tax consequences under state, local and other tax laws. The following brief description applies only to U.S. Holders (defined below) that hold common shares as capital assets and that have the U.S. dollar as their functional currency. This brief description is based on the tax laws of the United States in effect as of the date of this Annual Report and on U.S. Treasury regulations in effect or, in some cases, proposed, as of the date of this Annual Report, as well as judicial and administrative interpretations thereof available on or before such date. All of the foregoing authorities are subject to change, which change could apply retroactively and could affect the tax consequences described below. The brief description below of the U.S. federal income tax consequences to “U.S. Holders” will apply to you if you are a beneficial owner of shares and you are, for U.S. federal income tax purposes:
| ● | an individual who is a citizen or resident of the United States; |
| ● | a corporation (or other entity taxable as a corporation for U.S. federal income tax purposes) organized under the laws of the United States, any state thereof or the District of Columbia; |
| ● | an estate whose income is subject to U.S. federal income taxation regardless of its source; or |
| ● | a trust that (1) is subject to the primary supervision of a court within the United States and the control of one or more U.S. persons for all substantial decisions or (2) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person. |
Belgium taxation
The current enterprise income tax rate is approximately 34%, which includes 3% additional tax, for Belgium companies. Small and medium-sized enterprises may enjoy preferential tax rate if they meet the requirements.
Japan taxation
The enterprise income tax includes national income tax and local special tax for companies operated in Japan. The current national enterprise income tax rate is 30%. And the actual income tax burden will be around 35% - 40% given the local special tax was considered.
| F. | Dividends and paying agents |
Not required.
96
| G. | Statement by experts |
Not required.
| H. | Documents on display |
We file annual reports and other information with the Securities and Exchange Commission. We file annual reports on Form 20-F and submit other information under cover of Form 6-K. As a foreign private issuer, we are exempt from the proxy requirements of Section 14 of the Exchange Act and our officers, directors and principal shareholders are exempt from the insider short-swing disclosure and profit recovery rules of Section 16 of the Exchange Act. Annual reports and other information we file with the Commission may be inspected at the public reference facilities maintained by the Commission at Room 1024, 100 F. Street, N.E., Washington, D.C. 20549, and copies of all or any part thereof may be obtained from such offices upon payment of the prescribed fees. You may call the Commission at 1-800-SEC-0330 for further information on the operation of the public reference rooms and you can request copies of the documents upon payment of a duplicating fee, by writing to the Commission. In addition, the Commission maintains a web site that contains reports and other information regarding registrants (including us) that file electronically with the Commission which can be assessed at http://www.sec.gov.
| I. | Subsidiary Information |
Not required.
| ITEM 11. | QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK |
Interest Rate Risk
Our main interest rate exposure relates to bank borrowings. We manage our interest rate exposure with a focus on reducing our overall cost of debt and exposure to changes in interest rates. In 2021, we had $2.69 million weighted average outstanding bank loans, with weighted average effective interest rate of 9.41%. In 2020, we had $5.11 million weighted average outstanding bank loans, with weighted average effective interest rate of 9.03%. In 2019, we had $4.73 million weighted average outstanding bank loans, with weighted average effective interest rate of 5.54%.
As of December 31, 2021, if interest rates increased/decreased by 1%, with all other variables having remained constant, and assuming the amount of bank borrowings outstanding at the end of the year was outstanding for the entire year, profit attributable to equity owners of our company would have been $1,783, lower/higher, respectively, mainly as a result of higher/lower interest income from our cash and cash equivalents and loan receivables.
As of December 31, 2020, if interest rates increased/decreased by 1%, with all other variables having remained constant, and assuming the amount of bank borrowings outstanding at the end of the year was outstanding for the entire year, profit attributable to equity owners of our company would have been $3,387, lower/higher, respectively, mainly as a result of higher/lower interest income from our cash and cash equivalents and loan receivables.
Foreign Currency Risk
Our functional currency is the RMB, Euro and Yen, and our financial statements are presented in U.S. dollar. We mainly use RMB in domestic transaction, and the transaction settled with Euro and Yen are immaterial. The RMB appreciated against the U.S. dollar by 2.7% in 2021 and 6.5% in 2020. The change in the value of RMB relative to the U.S. dollar may affect our financial results reported in the U.S. dollar terms without giving effect to any underlying change in our business or results of operation.
Currently, our assets, liabilities, revenues and costs are denominated in RMB and in U.S. dollars, our exposure to foreign exchange risk will primarily relate to those financial assets denominated in U.S. dollars. Any significant revaluation of RMB against U.S. dollar may materially affect our earnings and financial position, and the value of, and any dividends payable on, our common shares in U.S. dollars in the future.
| ITEM 12. | DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES |
Not required.
97
PART II
| ITEM 13. | DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES |
As of December 31, 2021, there has been approximately USD9.14 million default of indebtedness and there is no any arrearage in the payment of dividends.
| ITEM 14. | MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS |
None.
| ITEM 15. | CONTROLS AND PROCEDURES |
Disclosure Controls and Procedures
As of December 31, 2021 (the “Evaluation Date”), the Company carried out an evaluation, under the supervision of and with the participation of management, including the Company’s Chief Executive Officer and Chief Financial Officer (the “Certifying Officers”), of the effectiveness of the design and operation of the Company’s disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934). Based on the foregoing, the Certifying Officers concluded that as of the Evaluation Date the Company’s disclosure controls and procedures were not effective as of December 31, 2021.
The material weakness identified by our management was a lack of control procedures implemented to ensure the Company’s business is not adversely affected after the change of the key member of the management team. As the Company suffered from many operating difficulties in 2019, the former Chief Executive Officer, General Manager, Chief Financial Officer, Chief Production Officer and other senior executives left the Company at different times, resulting in the lack of continuity and coherence in the Company’s operations and management throughout 2021.
In order to address the foregoing material weakness, we have put in place additional controls, including, among others, hiring and replacing certain management team members. Our CEO has established a new management team to deal with operation management challenges of the Company, and our CFO has been working on improving the Company’s financial and reporting functions. Overall, the Company is working through and standardizing its business processes, instituting business procedures and adding controls and additional supervision, particularly, in the areas of control duties and data sharing and supervision so as to provide effective means of linking various functions and departments within the Company.
We intend to complete the remediation effort on or before the end of the 2022 fiscal year and will conduct periodic assessments of the state of the Company’s financial reporting measures and systems, as a whole.
Changes in Internal Controls over Financial Reporting
Other than the changes described above, there were no changes in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) promulgated under the Exchange Act) during the period covered by this Annual Report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Management’s annual report on internal control over financial reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Our internal control over financial reporting is a process designed under the supervision of our chief executive officer and chief financial officer to provide reasonable assurance regarding the reliability of financial reporting and the preparation of our consolidated financial statements for external reporting purpose in accordance with U.S. generally accepted accounting principles.
Management assessed the effectiveness of our internal control over financial reporting as of December 31, 2020. In making this assessment, management used the framework set forth in the report Internal Control – Integrated framework issued in 2013 by the Committee of Sponsoring Organization of the Treadway Commission, or COSO. The COSO framework summarizes each of the components of a company’s internal control system, including (1) the control environment, (2) risk assessment, (3) control activities, (4) information and communication and (5) monitoring.
Based on these evaluations, our management concluded that, due to the material weakness described above, our internal control over financial reporting was not effective as of December 31, 2021.
| ITEM 16. | RESERVED |
| ITEM 16A. | AUDIT COMMITTEE FINANCIAL EXPERT. |
Our Board of Directors has determined that Owens Meng is an audit committee financial expert as that term is defined in Item 16A(b) of Form 20-F, and “independent” as that term is defined in the NASDAQ listing standards.
98
| ITEM 16B. | CODE OF ETHICS. |
We have adopted a Code of Business Conduct and Ethics that applies to our directors, officers and employees, including our principal executive officer, principal financial officer, and principal accounting officer. A copy of the Code of Business Conduct and Ethics is available on our website, www.tdhpet.com. The information on our corporate website is not a part of this Annual Report.
| ITEM 16C. | PRINCIPAL ACCOUNTANT FEES AND SERVICES. |
The following table represents the approximate aggregate fees for services rendered by MaloneBailey, LLP for the periods indicated:
| December 31, 2021 | December 31, 2020 | |||||||
| Audit Fees | $ | 149,000 | $ | 195,000 | ||||
| Audit Related Fees | - | - | ||||||
| Tax Fees | - | - | ||||||
| All Other Fees | - | - | ||||||
| Total Fees | $ | 149,000 | $ | 195,000 | ||||
The following table represents the approximate aggregate fees for services rendered by YCM CPA INC. for the periods indicated:
| December 31, 2021 | December 31, 2020 | |||||||
| Audit Fees | $ | 120,000 | $ | - | ||||
| Audit Related Fees | - | - | ||||||
| Tax Fees | - | - | ||||||
| All Other Fees | - | - | ||||||
| Total Fees | $ | 120,000 | $ | - | ||||
Pre-Approval of Services
Our audit committee evaluated and approved in advance the scope and cost of the engagement of an auditor before the auditor rendered its audit and non-audit services.
| ITEM 16D. | EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES. |
None.
| ITEM 16E. | PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS. |
No purchases of our securities were made by us or our affiliates in 2021.
| ITEM 16F. | CHANGES IN REGISTRANT’S CERTIFYING ACCOUNTANT. |
The information contained in our Form 6-K filed on January 4, 2022 is incorporated herein by reference pursuant to instruction 2 of Item 16F.
| ITEM 16G. | CORPORATE GOVERNANCE |
We are incorporated in the BVI and our corporate governance practices are governed by applicable BVI law, our memorandum and articles of association. In addition, because our common shares are listed on the NASDAQ Capital Market, we are subject to NASDAQ’s corporate governance requirements.
NASDAQ Listing Rule 5615(a)(3) permits a foreign private issuer like us to follow home country practices in lieu of certain requirements of Listing Rule 5600, provided that such foreign private issuer discloses in its annual report filed with the SEC each requirement of Rule 5600 that it does not follow and describes the home country practice followed in lieu of such requirement. Our BVI counsel, Ogier, has provided a letter to NASDAQ certifying that under BVI law, we are not required to follow Nasdaq rules 5635(b) and 5635(d) to seek shareholders’ approval of any issuance of securities in connection with a transaction other than a public offering where such transaction involves the issuance of securities representing more than 20% of our total outstanding ordinary shares or results in a change of control of a company. In 2021, we followed home country practice with respect to the issuance of more than 20% of our total outstanding ordinary shares in connection with the our September 30, 2021 and November 3, 2021 registered direct offerings.
| ITEM 16H. | MINE SAFETY DISCLOSURE |
Not applicable.
| ITEM 16I. | DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS. |
Not applicable.
99
PART III
| ITEM 17. | FINANCIAL STATEMENTS |
We have elected to provide financial statements pursuant to Item 18.
| ITEM 18. | FINANCIAL STATEMENTS |
The financial statements are filed as part of this Annual Report beginning on page F-1.
| ITEM 19. | EXHIBITS |
| (1) | Filed as an exhibit to the Registrant’s Current Report on Form 6-K, filed on February 16, 2022 and hereby incorporated by reference. |
| (2) | Incorporated by reference from the previously filed as part of the registration statement DRS F-1 filed with the SEC on June 23, 2017. |
| (3) | Filed as an exhibit to the Registrant’s Current Report on Form 6-K, filed on October 1, 2021 and hereby incorporated by reference. |
| (4) | Filed as an exhibit to the Registrant’s Current Report on Form 6-K, filed on November 4, 2021 and hereby incorporated by reference. |
100
SIGNATURES
The Registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.
| TDH Holdings, Inc. | |||
| April 29, 2022 | By: | /s/ Dandan Liu | |
| Name: | Dandan Liu | ||
| Title: | Chief
Executive Officer (Principal Executive Officer) | ||
| TDH Holdings, Inc. | |||
| April 29, 2022 | By: | /s/ Feng Zhang | |
| Name: | Feng Zhang | ||
| Title: | Chief
Financial Officer (Principal Financial and Accounting Officer) | ||
101
TDH HOLDINGS, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and Board of Directors of
TDH Holdings, Inc. and Subsidiaries
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheet of TDH Holdings, Inc. and Subsidiaries (collectively, the “Company”) as of December 31, 2021 and the related consolidated statements of operations and comprehensive loss, stockholders’ equity (deficit), and cash flows for the year ended December 31, 2021, and the related notes (collectively referred to as the “financial statements”).
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2021, and the results of its operations and its cash flows for the period ended December 31, 2021, in conformity with accounting principles generally accepted in the United States of America.
Going Concern Matter
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 2 to the financial statements, the Company has suffered recurring losses from operations and has a net capital deficiency that raises substantial doubt about its ability to continue as a going concern. Management’s plans in regard to these matters are also described in Note 2. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
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/ YCM CPA INC.
We have served as the Company’s auditor since 2021.
Irvine, California
April 28, 2022
F-2
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and Board of Directors of
TDH Holdings, Inc. and Subsidiaries
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheet of TDH Holdings, Inc. and Subsidiaries (collectively, the “Company”) as of December 31, 2020, and the related consolidated statements of operations and comprehensive loss, stockholders’ equity (deficit), and cash flows for the years ended December 31, 2020 and 2019, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020, and the results of their operations and their cash flows for the years ended December 31, 2020 and 2019, in conformity with accounting principles generally accepted in the United States of America.
Going Concern Matter
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 2 to the financial statements, the Company has suffered recurring losses from operations and has a net capital deficiency that raises substantial doubt about its ability to continue as a going concern. Management's plans in regard to these matters are also described in Note 2. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
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/
www.malonebailey.com
We have served as the Company’s auditor since 2016.
April 28, 2021
F-3
TDH HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| ASSETS | ||||||||
| CURRENT ASSETS: | ||||||||
| Cash and cash equivalents | $ | $ | ||||||
| Restricted cash | ||||||||
| Short-term investments | ||||||||
| Accounts receivable, net | ||||||||
| Advances to suppliers, net | ||||||||
| Inventories, net | ||||||||
| Prepayments and other current assets, net | ||||||||
| Total current assets | ||||||||
| NON-CURRENT ASSETS | ||||||||
| Property, plant and equipment, net | ||||||||
| Land use rights, net | ||||||||
| Operating lease right-of-use assets | ||||||||
| Operating lease right-of-use assets - related parties | ||||||||
| Total non-current assets | ||||||||
| Total assets | $ | $ | ||||||
| LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT) | ||||||||
| CURRENT LIABILITIES: | ||||||||
| Accounts payable | $ | $ | ||||||
| Accounts payable - related parties | ||||||||
| Advances from customers | ||||||||
| Bank overdrafts | ||||||||
| Short-term loans | ||||||||
| Short-term loans - related parties | ||||||||
| Taxes payable | ||||||||
| Due to related parties | ||||||||
| Operating lease liabilities, current | ||||||||
| Operating lease liabilities - related parties, current | ||||||||
| Other current liabilities | ||||||||
| Total current liabilities | ||||||||
| NON-CURRENT LIABILITIES: | ||||||||
| Deferred tax liabilities | ||||||||
| Operating lease liabilities - related party, non-current | ||||||||
| Total liabilities | ||||||||
| STOCKHOLDERS’ EQUITY (DEFICIT): | ||||||||
| Common stock ($ | ||||||||
| Additional paid-in capital | ||||||||
| Statutory reserves | ||||||||
| Accumulated deficit | ( | ) | ( | ) | ||||
| Accumulated other comprehensive loss | ( | ) | ( | ) | ||||
| Total TDH Holdings, Inc. stockholders’ equity (deficit) | ( | ) | ||||||
| Non-controlling interest | ||||||||
| Total stockholders’ equity (deficit) | ( | ) | ||||||
| Total liabilities and stockholders’ equity (deficit) | $ | $ | ||||||
The accompanying notes are an integral part of these consolidated financial statements
F-4
TDH HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS
| For The Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| Net revenue | $ | $ | $ | |||||||||
| Net revenue - related parties | ||||||||||||
| Total revenue | ||||||||||||
| Cost of revenue | ||||||||||||
| Cost of revenue - related parties | ||||||||||||
| Total cost of revenue | ||||||||||||
| Gross loss | ( | ) | ( | ) | ( | ) | ||||||
| Operating expenses: | ||||||||||||
| Selling expense | ||||||||||||
| General and administrative expense | ||||||||||||
| Impairment of long-lived assets other than goodwill | ||||||||||||
| Impairment of goodwill | ||||||||||||
| Total operating expenses | ||||||||||||
| Loss from operations | ( | ) | ( | ) | ( | ) | ||||||
| Interest expense | ( | ) | ( | ) | ( | ) | ||||||
| Government subsidies | ||||||||||||
| Other income | ||||||||||||
| Other expense | ( | ) | ( | ) | ( | ) | ||||||
| Investment income, net | ||||||||||||
| Loss from equity method investment | ( | ) | ||||||||||
| Total other income (expenses) | ( | ) | ( | ) | ||||||||
| Loss before income tax benefit | ( | ) | ( | ) | ( | ) | ||||||
| Income tax benefit | ( | ) | ||||||||||
| Net loss | ( | ) | ( | ) | ( | ) | ||||||
| Less: Net loss attributable to non-controlling interest | ( | ) | ( | ) | ||||||||
| Net loss attributable to TDH Holdings, Inc. | $ | ( | ) | $ | ( | ) | $ | ( | ) | |||
| Comprehensive loss | ||||||||||||
| Net loss | $ | ( | ) | $ | ( | ) | $ | ( | ) | |||
| Other comprehensive loss | ||||||||||||
| Foreign currency translation adjustment | ( | ) | ( | ) | ( | ) | ||||||
| Total comprehensive loss | ( | ) | ( | ) | ( | ) | ||||||
| Less: Comprehensive loss attributable to noncontrolling interest | ( | ) | ||||||||||
| Comprehensive loss attributable to TDH Holdings, Inc. | $ | ( | ) | $ | ( | ) | $ | ( | ) | |||
| Loss per common share attributable to TDH Holdings, Inc. | ||||||||||||
| Basic | $ | ( | ) | $ | ( | ) | $ | ( | ) | |||
| Diluted | $ | ( | ) | $ | ( | ) | $ | ( | ) | |||
| Weighted average common shares outstanding | ||||||||||||
| Basic | ||||||||||||
| Diluted | ||||||||||||
The accompanying notes are an integral part of these consolidated financial statements
F-5
TDH HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY (DEFICIT)
| Number of Shares | Common Shares | Additional Paid-in Capital | Stock Subscription Receivable | Statutory Reserves | Accumulated Deficit | Accumulated Other Comprehensive Income (Loss) | Noncontrolling Interest | Total Stockholders’ Equity (Deficit) | ||||||||||||||||||||||||||||
| Balance, January 1, 2019 | $ | $ | $ | $( | $ | $( | $( | |||||||||||||||||||||||||||||
| Net loss | - | - | ( | ( | ( | |||||||||||||||||||||||||||||||
| Issuance of common shares | - | |||||||||||||||||||||||||||||||||||
| Disposal of noncontrolling interest | - | - | ||||||||||||||||||||||||||||||||||
| Foreign currency translation adjustment | - | - | ( | ) | ( | ) | ||||||||||||||||||||||||||||||
| Balance, December 31, 2019 | $ | $ | $ | $ | $ | ( | ) | $ | $ | ( | ) | $ | ||||||||||||||||||||||||
| Net loss | - | - | ( | ) | ( | ) | ||||||||||||||||||||||||||||||
| Foreign currency translation adjustment | - | - | ( | ) | ( | ) | ||||||||||||||||||||||||||||||
| Purchase of noncontrolling interest | - | - | ( | ) | ( | ) | ||||||||||||||||||||||||||||||
| Balance, December 31, 2020 | $ | $ | $ | $ | $ | ( | ) | $ | ( | ) | $ | $ | ( | ) | ||||||||||||||||||||||
| Net Loss | ( | ) | ( | ) | ( | ) | ||||||||||||||||||||||||||||||
| Issuance of common stock | ||||||||||||||||||||||||||||||||||||
| Warrants exercised for cashless | ||||||||||||||||||||||||||||||||||||
| Foreign currency translation adjustment | ( | ) | ( | ) | ||||||||||||||||||||||||||||||||
| Acquisition of non-controlling interest | ||||||||||||||||||||||||||||||||||||
| Balance, December 31, 2021 | ( | ) | ( | ) | ||||||||||||||||||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements
F-6
TDH HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
| For The Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| Cash flows from operating activities | ||||||||||||
| Net loss | $ | ( | ) | $ | ( | ) | $ | ( | ) | |||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||||||
| Depreciation and amortization expense | ||||||||||||
| Fair value change of short-term investments | ( | ) | ( | ) | ||||||||
| Loss from equity method investment | ||||||||||||
| Loss on disposal of subsidiaries | ||||||||||||
| Impairment of goodwill | ||||||||||||
| Impairment of long-lived assets other than goodwill | ||||||||||||
| Inventory write-down | ||||||||||||
| Allowance for credit losses | ||||||||||||
| Deferred income taxes | ( | ) | ( | ) | ||||||||
| Loss (gain) on disposal of property, plant and equipment | ( | ) | ||||||||||
| Amortization of operating lease right-of-use assets | -- | -- | ||||||||||
| Non-cash lease expense | ( | ) | ||||||||||
| Gain on forgiveness of short-term loan | $ | $ | ( | ) | $ | |||||||
| Changes in operating assets and liabilities: | ||||||||||||
| Accounts receivable, net | ( | ) | ||||||||||
| Accounts receivable - related parties, net | ||||||||||||
| Inventories, net | ||||||||||||
| Operating lease liabilities | ( | ) | ||||||||||
| Operating lease liabilities – related parties | ( | ) | ||||||||||
| Due from related parties, net | ( | ) | ||||||||||
| Due to related parties | ||||||||||||
| Advances to suppliers, net | ( | ) | ||||||||||
| Prepayments and other current assets, net | ( | ) | ||||||||||
| Accounts payable | ( | ) | ( | ) | ( | ) | ||||||
| Accounts payable - related parties | ( | ) | ||||||||||
| Interest payable | ||||||||||||
| Interest payable - related parties | ||||||||||||
| Notes payable | ( | ) | ||||||||||
| Taxes payable | ||||||||||||
| Advances from customers | ( | ) | ( | ) | ||||||||
| Advances from customer - related party | ||||||||||||
| Deferred income tax liability | ||||||||||||
| Other current liabilities | ( | ) | ||||||||||
| Net cash used in operating activities | $ | ( | ) | $ | ( | ) | $ | ( | ) | |||
| Cash flows from investing activities | ||||||||||||
| Payments to acquire property, plant and equipment | ( | ) | ( | ) | ||||||||
| Proceeds from disposal of property, plant and equipment | ||||||||||||
| Disposal of subsidiaries | ||||||||||||
| Repayments from related parties | ||||||||||||
| Cash obtained from business acquisition | ||||||||||||
| Payment for business acquisition | ( | ) | ||||||||||
| Purchase of short-term investments | ( | ) | ( | ) | ||||||||
| Proceeds from sale of short-term investments | ||||||||||||
| Net cash (used in) provided by investing activities | ( | ) | ||||||||||
| Cash flows from financing activities | ||||||||||||
| Proceeds from issuance of common shares | ||||||||||||
| Purchase of noncontrolling interest | ( | ) | ( | ) | ||||||||
| Repayments to related parties | ( | ) | ||||||||||
| Proceeds from bank overdrafts | ||||||||||||
| Proceeds from short-term loans | ||||||||||||
| Repayments of short-term loans | ( | ) | ( | ) | ( | ) | ||||||
| Proceeds from short-term loans - related parties | ||||||||||||
| Repayments of short-term loans - related parties | ( | ) | ( | ) | ||||||||
| Net cash provided by (used in) financing activities | $ | $ | ( | ) | $ | |||||||
| Effect of exchange rate changes on cash, cash equivalents and restricted cash | ( | ) | ( | ) | ||||||||
| Net change in cash, cash equivalents and restricted cash | ||||||||||||
| Cash, cash equivalents and restricted cash, beginning of the year | ||||||||||||
| Cash, cash equivalents and restricted cash, end of the year | $ | $ | $ | |||||||||
| Supplemental cash flow information | ||||||||||||
| Interest paid | $ | $ | $ | |||||||||
| Income taxes paid | $ | $ | $ | |||||||||
| Non-cash investing and financing activities | ||||||||||||
| Accrued interest added to short-term loan – related party | $ | $ | $ | |||||||||
| Liabilities assumed in connection with purchase of property, plant and equipment | $ | $ | $ | |||||||||
| Notes payable reclassified to short-term loans | $ | $ | $ | |||||||||
| Receivables from related parties settled with payables to related parties | $ | $ | $ | |||||||||
| Receivables from common stock subscription settled with loan payables to a related party | $ | $ | $ | |||||||||
| Short-term loans settled by transferring an equity investment to the creditor | $ | $ | $ | |||||||||
| Cashless exercise of warrants | $ | $ | $ | |||||||||
| Right of use assets obtained in exchange for operating lease obligations | $ | $ | $ | |||||||||
| Reconciliation of cash, cash equivalents, and restricted cash to the consolidated balance sheets | ||||||||||||
| Cash and cash equivalents | $ | $ | $ | |||||||||
| Restricted cash | $ | $ | $ | |||||||||
| Total cash, cash equivalents, and restricted cash | $ | $ | $ | |||||||||
The accompanying footnotes are an integral part of these financial statements
F-7
TDH HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1 – ORGANIZATION
TDH Holdings, Inc. (“TDH Holdings”)
was incorporated on September 30, 2015 under the laws of the British Virgin Islands. On November 4, 2015, TDH Holdings incorporated a
wholly owned subsidiary, TDH HK Limited (“TDH HK”) in Hong Kong for the purpose of being a holding company for the equity
interest in Qingdao Tiandihui Foodstuffs Co., Ltd. (“Tiandihui”). On September 9, 2016, TDH Holdings incorporated TDH Petfood
LLC, a Nevada limited liability company, in which TDH Holdings holds
Tiandihui was founded in Qingdao City, Shandong Province, People’s Republic of China (“PRC”) on April 22, 2002 as a limited liability company. As of December 31, 2021, Tiandihui had one wholly owned subsidiary: Beijing Chongai Jiujiu Cultural Communication Co., Ltd. (“Chongai Jiujiu”), which was incorporated on March 3, 2011, in Beijing City, PRC. Tiandihui and its wholly owned subsidiary are engaged in the business of development, manufacturing and sales of high quality pet food products under our own formula patents. Our products are produced at Tiandihui facility and sold to the pet owners in PRC and to the retailers and wholesalers throughout worldwide.
On February 21, 2016, TDH HK entered into an equity
transfer agreement with Rongfeng Cui and his wife Yanjuan Wang, the shareholders of Tiandihui at the time, to acquire
On July 19, 2016, Tiandihui acquired
Immediately before and after the reorganization, the same shareholders of Tiandihui controlled Tiandihui and TDH Holdings. Therefore, for accounting purposes, the reorganization is accounted for as a transaction of entities under common control. Accordingly, the accompanying consolidated financial statements have been prepared as if the current corporate structure had been in existence throughout the periods presented.
On August 9, 2016, a wholly owned subsidiary of the Company, Qingdao Kangkang Development Co., Ltd. (“Kangkang Development”) was incorporated in Qingdao City, PRC. Kangkang Development had no active operation since its incorporation and was dissolved in 2019.
On November 14, 2017, a
On November 29, 2017, a
On January 3, 2018, a wholly owned subsidiary, Qingdao Lile Pet Foodstuffs Co., Ltd. (“Lile”) was incorporated in Qingdao City, PRC. Lile had no active operation since its incorporation and was dissolved in 2019.
In November 2018, the Company completed business acquisitions of TDH Group BVBA, a Belgium entity and TDH JAPAN, a Japanese entity. TDH Group BVBA and TDH JAPAN had limited operation activities for the year ended December 31, 2020. TDH JAPAN was dissolved in February 2021.
F-8
On January 22, 2020, Qingdao Tiandihui Pet Foodstuffs Co., Ltd. (“Tiandihui Pet Foodstuffs”) was incorporated in Qingdao City, PRC.
On January 21, 2020, Qingdao Tiandihui Foodstuffs Sales Co., Ltd. (“Tiandihui Foodstuffs Sales”) was incorporated in Qingdao City, PRC. Tiandihui Foodstuffs Sales is a wholly owned subsidiary of Tiandihui Pet Foodstuffs.
On February 27, 2020, TDH Foods Limited was incorporated in Hong Kong, with the purpose of being a holding company for equity interests in Tiandihui Pet Foodstuffs. TDH Foods Limited does not conduct any operations or own any material assets or liabilities.
On August 24, 2020, TDH Holdings, Inc. acquired
On June 4, 2021, TDH Income Corporation (“TDH
Income”) was incorporated in Nevada. TDH Holdings, Inc. owns a
On June 9, 2021, Ruby21Noland LLC (“Ruby21Noland”) was incorporated in Missouri. Ruby21Noland is a wholly owned subsidiary of TDH Income.
On October 31, 2021, TDH Income acquired
TDH Holdings and its consolidated subsidiaries are collectively referred to herein as the “Company”, “we” and “us”, unless specific reference is made to an entity.
Note 2 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation and Principles of Consolidation
The accompanying audited financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America (“U.S. GAAP”).
This basis of accounting differs in certain material respects from that used for the preparation of the books of account of the Company, which are prepared in accordance with the accounting principles and the relevant financial regulations applicable to enterprises with limited liabilities established in the PRC (“PRC GAAP”), the accounting standards used in the places of their domicile. The accompanying consolidated financial statements reflect necessary adjustments not recorded in the books of account of the Company to present them in conformity with U.S. GAAP.
The consolidated financial statements include the accounts of the Company, its wholly-owned and majority-owned subsidiaries.
All significant intercompany accounts and transactions have been eliminated upon consolidation. The results of subsidiaries acquired or disposed of during the respective periods are included in the consolidated statements of operations and comprehensive loss from the effective date of acquisition or up to the effective date of disposal, as appropriate. The portion of the income or loss applicable to noncontrolling interest in subsidiaries is reflected in the consolidated statements of operations and comprehensive loss.
Going Concern
Our consolidated financial statements have been
prepared assuming we will continue as a going concern, which contemplates the realization of assets and liquidation of liabilities in
the normal course of business. For the year ended December 31, 2021, we have incurred a net loss of approximately $
Management’s plan to alleviate the substantial doubt about the Company’s ability to continue as a going concern include attempting to improve its business profitability, its ability to generate sufficient cash flow from its operations to meet its operating needs on a timely basis, obtain additional working capital funds through debt and equity financings to eliminate inefficiencies in order to meet its anticipated cash requirements. However, there can be no assurance that these plans and arrangements will be sufficient to fund the Company’s ongoing capital expenditures, working capital, and other requirements.
F-9
The accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of assets and satisfaction of liabilities in the ordinary course of business. The financial statements do not include any adjustments relating to the recoverability and classification of recorded asset amounts or the amounts and classification of liabilities that might result from the outcome of the uncertainties described above.
Foreign Currency Translation
The accompanying consolidated financial statements are presented in United States dollar (“$”), which is the reporting currency of the Company. The functional currency of TDH Holdings, TDH HK, TDH Petfood LLC TDH Income Corporation, Ruby21Noland LLC, Far Ling’s Inc, Bo Ling’s Chinese Restaurant, Inc and TDH Foods Limited is United States dollar. The functional currency of Tiandihui, Tiandihui Pet Foodstuffs, Tiandihui Foodstuffs Sales and Chongai Jiujiu is Renminbi (“RMB”). The functional currency of TDH Group BVBA is Euro (“€”). The functional currency of TDH JAPAN is Yen (“¥”). For the subsidiaries whose functional currencies are RMB, Euro and Yen, results of operations and cash flows are translated at average exchange rates during the period, assets and liabilities are translated at the unified exchange rate at the end of the period, and equity is translated at historical exchange rates. The resulting translation adjustments are included in determining other comprehensive income or loss. Transaction gains and losses are reflected in the consolidated statements of operations.
The exchange rates used to translate amounts in RMB into U.S. Dollars for the purpose of preparing the consolidated financial statements were as follows (USD$1=RMB):
| Period Covered | Balance Sheet Date Rates |
Average Rates |
||||||
| Year ended December 31, 2021 | ||||||||
| Year ended December 31, 2020 | ||||||||
The exchange rates used to translate amounts in Euro into U.S. Dollars for the purpose of preparing the consolidated financial statements were as follows (USD$1=€):
| Period Covered | Balance Sheet Date Rate |
Average Rate |
||||||
| Year ended December 31, 2021 | ||||||||
| Year ended December 31, 2020 | ||||||||
The exchange rates used to translate amounts in Yen into U.S. Dollars for the purpose of preparing the consolidated financial statements were as follows (USD$1=¥):
| Period Covered | Balance Sheet Date Rate |
Average Rate |
||||||
| Year ended December 31, 2021 | ||||||||
| Year ended December 31, 2020 | ||||||||
Use of Estimates
The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and judgments that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities on the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. The Company bases its estimates and judgments on historical experience and on various other assumptions and information that are believed to be reasonable under the circumstances. Estimates and assumptions of future events and their effects cannot be perceived with certainty and, accordingly, these estimates may change as new events occur, as more experience is acquired, as additional information is obtained and as our operating environment changes. Significant estimates and assumptions by management include, among others, useful lives and impairment of long-lived assets, allowance for credit losses, write-down in value of inventories and income taxes including the valuation allowance for deferred tax assets. Estimates and assumptions are periodically reviewed and the effects of revisions are reflected in the financial statements in the period they are determined to be necessary.
F-10
COVID-19 Pandemic
The COVID-19 pandemic has created significant public health concerns as well as economic disruption, uncertainty, and volatility which may negatively affect our business operations. As a result, as the pandemic persists and/or if it worsens, our accounting estimates and assumptions could be impacted in subsequent periods, and it is reasonably possible such changes could be significant (although the potential effects cannot be estimated at this time).
Cash and Cash Equivalents
Cash and cash equivalents include cash on hand, cash in time deposits and highly liquid investments purchased with original maturities of three months or less.
Restricted Cash
Restricted cash mainly represents bank deposits judicially frozen by the court as a result of legal proceedings as of December 31, 2021 and 2020 (see Note 4).
Short-term Investments
Starting March 2020 and throughout the years ended
December 31, 2020 and 2021, TDH Holdings invested in equity securities of certain publicly listed companies through various open market
transactions. The investments in marketable securities are managed and operated by an asset management company. Pursuant to the asset
management agreement, for the period from March 1, 2020 to December 31, 2021, the asset management company is entitled to
TDH Holdings’ investments in marketable
securities are accounted for pursuant to ASC 321 and reported at their readily determinable fair value as quoted by market exchanges in
the consolidated balance sheets with change in fair value recognized in earnings. For the year ended December 31, 2021 and 2020, change
in fair value, including unrealized gain of approximately $
Business Combination
In October 2021, the Company acquired
Non-controlling interest
As of December 31, 2021, non-controlling interest represents
Current Expected Credit Losses
On January 1, 2020, the Company adopted FASB Accounting Standards Update (ASU) 2016-13 “Financial Instruments – Credit Losses: Measurement of Credit Losses on Financial Instruments,” (ASC Topic 326) and its amendments using the modified retrospective approach. Results for reporting periods beginning after January 1, 2020 are presented under ASC Topic 326, while prior amounts are not adjusted. The Company’s accounts receivables, advances to suppliers, prepayments and other current assets are within the scope of ASC Topic 326. This ASU replaces the incurred loss impairment model with an expected credit loss impairment model for financial instruments. The amendments require entities to consider forward-looking information to estimate expected credit losses, resulting in earlier recognition of losses for receivables that are current or not yet due, which were not considered under the previous accounting guidance. The adoption of this standard did not have a material impact to the Company’s consolidated financial statements.
Our expected loss allowance methodology is developed using an aging method and analyses of historical credit losses experience, current economic conditions, future market forecasts and any recoveries in assessing the lifetime expected credit losses. Additionally, external data and macroeconomic factors are also considered.
F-11
Inventories
Inventories, consisting of raw materials, work in progress, and finished goods, are stated at the lower of cost or net realizable value, with cost computed on a weighted-average basis. The valuation of inventory requires us to estimate excess and slow-moving inventory. We evaluate the recoverability of our inventory based on assumption about expected demand, market conditions, forecasts prepared by its customers, sales contracts and orders in hand.
Property, Plant and Equipment
Property, plant and equipment, are stated at cost less depreciation. Cost represents the purchase price of the asset and other costs incurred to bring the asset into its existing use. Maintenance, repairs and betterments, including replacement of minor items, are charged to expense; major additions to physical properties are capitalized.
Depreciation of property, plant and equipment is calculated based on cost, less their estimated residual value, if any, using the straight-line method over their estimated useful lives. Estimated useful lives are as follows:
| Machinery equipment | |||
| Computer software | |||
| Electronic equipment | |||
| Office equipment | |||
| Motor vehicles | |||
| Leasehold improvement | |||
| Buildings |
Land Use Rights
According to the law of PRC, the government owns all the land in the PRC. Companies or individuals are authorized to possess and use the land only through land use rights granted by the Chinese government for a specified period of time. Land use rights are being amortized using the straight-line method over the periods the rights are granted.
Goodwill
Goodwill represents the excess of the consideration paid of an acquisition over the fair value of the net identifiable assets of the acquired subsidiary at the date of acquisition. Goodwill is not amortized and is tested for impairment at least annually, more often when circumstances indicate impairment may have occurred. Goodwill is carried at cost less accumulated impairment losses. If impairment exists, goodwill is immediately written off to its fair value and the loss is recognized in the consolidated statements of operations and comprehensive loss. Impairment losses on goodwill are not reversed.
Impairment of Long-Lived Assets and Goodwill
The Company reviews long-lived assets for impairment
whenever events or changes in circumstances indicate that the carrying amount of the assets may not be fully recoverable, or at least
annually. The Company recognizes an impairment loss when the sum of expected undiscounted future cash flows is less than the carrying
amount of the asset. The amount of impairment is measured as the difference between the asset’s estimated fair value and its book
value. The Company recorded impairment loss on long-lived assets other than goodwill of $
The Company’s goodwill is tested for impairment
on an annual basis or whenever events or changes in circumstances indicate that the carrying amount of these assets may not be recoverable.
In testing for goodwill impairment, the Company compares the fair value of its reporting unit to its carrying value including the goodwill
of that unit. If the carrying value, including goodwill, exceeds the reporting unit’s fair value, the Company will recognize an
impairment loss for the amount by which the carrying amount exceeds the reporting unit’s fair value. The loss recognized cannot
exceed the total amount of goodwill allocated to that reporting unit. Given the Company’s net loss position, the Company recorded impairment of goodwill of $
Long-term Investments
The Company’s long-term investments consist of equity investments without readily determinable fair value and equity method investment.
F-12
In accordance with ASC 323, Investments-Equity
Method and Joint Ventures, the Company applies the equity method of accounting to equity investments, over which it has significant
influence but does not own a majority equity interests or otherwise control. Significant influence is generally considered to exist when
the Company has an ownership interest in the voting stock of the investee between
The Company continually reviews its investment under equity method to determine whether a decline in fair value to below the carrying value is other-than-temporary. The primary factors in its determination are the duration and severity of the decline in fair value, the financial condition, operating performance and the prospects of the equity investee, and other company specific information such as recent financing rounds. If the decline in fair value is deemed to be other-than-temporary, the carrying value of the equity investee is written down to fair value.
For equity securities without readily determinable fair value and do not qualify for the existing practical expedient in ASC 820, Fair Value Measurements and Disclosures to estimate fair value using the net asset value per share (or its equivalent) of the investment, the Company elected to use the measurement alternative to measure those investments at cost, less any impairment, plus or minus changes resulting from observable price changes in orderly transactions for identical or similar investments of the same issuer, if any. The Company makes assessment of whether an investment is impaired at each reporting date and recognizes an impairment loss equal to the difference between the carrying value and fair value in the consolidated statements of operations and comprehensive loss if there is any. The Company makes a qualitative assessment of whether the investments are impaired at each reporting date.
Fair Value of Financial Instruments
Accounting guidance defines fair value as the price that would be received from selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair value measurement for assets and liabilities required or permitted to be recorded at fair value, the Company considers the principal or most advantageous market in which it would transact and it considers assumptions that market participants would use when pricing the asset or liability.
The Company measures certain financial assets, including the investment under the measurement alternative method and equity method on other-than-temporary basis, intangible assets and fixed assets at fair value when an impairment charge is recognized.
Accounting guidance establishes a fair value hierarchy that requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. A financial instrument’s categorization within the fair value hierarchy is based upon the lowest level of input that is significant to the fair value measurement. Accounting guidance establishes three levels of inputs that may be used to measure fair value:
Level 1 — Observable inputs that reflect quoted prices (unadjusted) for identical assets or liabilities in active markets.
Level 2 — Include other inputs that are directly or indirectly observable in the marketplace.
Level 3 — Unobservable inputs which are supported by little or no market activity.
Accounting guidance also describes three main approaches to measuring the fair value of assets and liabilities: (1) market approach; (2) income approach and (3) cost approach. The market approach uses prices and other relevant information generated from market transactions involving identical or comparable assets or liabilities. The income approach uses valuation techniques to convert future amounts to a single present value amount. The measurement is based on the value indicated by current market expectations about those future amounts. The cost approach is based on the amount that would currently be required to replace an asset.
F-13
For certain of the Company’s financial instruments, including cash and cash equivalents, restricted cash, accounts receivable, advances to suppliers, inventories, prepayments and other current assets, accounts payable, advances from customers, taxes payable, bank overdrafts, short-term loans and other current liabilities, the carrying amounts approximate their fair values due to the short maturities. The fair value of the Company’s investments in the equity securities of publicly listed companies are measured using quoted market prices.
The following table presents information about the Company’s assets that are measured at fair value on a recurring basis as of December 31, 2021 and 2020 and indicates the fair value hierarchy of the valuation.
Quoted (Level 1) | Significant (Level 2) | Significant (Level 3) | Total Balance | |||||||||||||
| Publicly listed equity securities | ||||||||||||||||
| As of December 31, 2021 | $ | |||||||||||||||
| As of December 31, 2020 | $ | |||||||||||||||
Lease Commitments
On January 1, 2019, the Company adopted ASU 2016-02, Leases (together with all amendments subsequently issued thereto, “ASC Topic 842”), using the modified retrospective method. The Company elected the transition method which allows entities to initially apply the requirements by recognizing a cumulative-effect adjustment to the opening balance of retained earnings in the period of adoption. As a result of electing this transition method, previously reported financial information has not been restated to reflect the application of the new standard to the comparative periods presented. The Company elected the package of practical expedients permitted under the transition guidance within ASC Topic 842, which among others, allows the Company to carry forward certain historical conclusions reached under ASC Topic 840 regarding lease identification, classification, and the accounting treatment of initial direct costs. The Company elected not to record assets and liabilities on its consolidated balance sheet for new or existing lease arrangements with terms of 12 months or less. The Company recognizes lease expenses for such leases on a straight-line basis over the lease term. In addition, the Company elected the land easement transition practical expedient and did not reassess whether an existing or expired land easement is a lease or contains a lease if it has not historically been accounted for as a lease.
The initial lease liability is equal to the future fixed minimum lease payments discounted using the Company’s incremental borrowing rate, on a secured basis. The lease term includes option renewal periods and early termination payments when it is reasonably certain that the Company will exercise those rights. The initial measurement of the right-of-use asset is equal to the initial lease liability plus any initial direct costs and prepayments, less any lease incentives.
Payments made under operating leases are charged to the consolidated statements of operations and comprehensive loss on a straight-line basis over the lease period. The Company does not have finance lease arrangements as of December 31, 2021 and 2020. See Note 16 for further discussion.
F-14
Loss per Share
Basic loss per common share is computed by dividing net loss attributable to common shareholders by the weighted-average number of common shares outstanding during the period. Diluted loss per share is computed by dividing net loss attributable to common shareholders by the sum of the weighted average number of common shares outstanding and dilutive potential common shares during the period. Potentially dilutive common shares consist of common shares warrants using the treasury stock method. Common equivalent shares are not included in the denominator of the diluted earnings per share calculation when inclusion of such shares would be anti-dilutive. Given the Company’s net loss position, there were no diluted shares for the years ended December 31, 2021, 2020 and 2019.
Revenue Recognition
Revenue is measured according to ASC Topic 606,
Revenue from Contracts with Customers. The Company currently generated revenue from
Revenue for sale of products is derived from contracts with customers, which primarily include the sale of pet food products. The Company recognizes revenue upon transfer of control of promised goods in a contract with a customer in an amount that reflects the consideration the Company expects to receive in exchange for those products. Transfer of control occurs once the customer has the contractual right to use the product, generally upon shipment or once delivery and risk of loss has transferred to the customer.
In connection with the business acquisition as disclosed in Note 3, the Company started to generate revenue from restaurant business operation since late 2021. Revenue from providing dining services and sales of meals is recognized at point when services are rendered. The Company recognizes revenues in the form of restaurant sales at the time of the sale when payment is made by the customer, as the Company has completed its performance obligation, namely the provision of food and beverage, and the accompanying customer service, during the customer’s visit to the restaurant.
Revenue is recognized net of any taxes collected from customers that are subsequently remitted to governmental authorities, including value-added tax (“VAT”), business tax, applicable local government levies. At the time revenue is recognized, allowances are recorded, with the related reduction to revenue, for estimated sales returns based upon historical experience and related terms of customer arrangements.
The allowance for sales returns recorded by the
Company was $
The Company elected to account for shipping and handling fees that occur after the customer has obtained control of goods, for instance, free onboard shipping point arrangements, as a fulfillment cost and accrues for such costs.
Management has concluded that the disaggregation level is the same under both the revenue standard and the segment reporting standard. Revenue under the segment reporting standard is measured on the same basis as under the revenue standard. See Note 15 for information regarding revenue disaggregation by product lines, marketing channels and countries.
Contract liabilities are recorded when
consideration is received from a customer prior to transferring the control of goods to the customer or other conditions under the
terms of a sales contract. As of December 31, 2021 and 2020, the Company recorded contract liabilities of $
Government Grants
Government grants include cash subsidies as well as other subsidies received from the PRC government by the subsidiaries of the Company. Such subsidies are generally provided as incentives from the local government to encourage the expansion of local business. The government grant is recognized in the consolidated statements of operations and comprehensive loss when cash is received and the relevant performance criteria specified in the grant are met.
F-15
Selling Expenses
Selling expenses consist primarily of advertising, salaries and shipping and handling costs incurred during the selling activities. Advertising and transportation expenses are charged to expense as incurred.
Shipping and handling expenses amounted to $
Advertising costs amounted to $
Income Taxes
The Company accounts for income taxes under the provision of FASB ASC 740-10, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the financial statements or tax returns. Under this method, deferred income taxes are recognized for the tax consequences in future years of differences between the tax bases of assets and liabilities and their financial reporting amounts at each period end based on enacted tax laws and statutory tax rates applicable to the periods in which the differences are expected to affect taxable income. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount expected to be realized.
Comprehensive Loss
ASC 220 “Comprehensive Income” established standards for reporting and display of comprehensive loss, its components and accumulated balances. Components of comprehensive loss include net loss and foreign currency translation adjustment. As of December 31, 2021, 2020 and 2019, the only component of accumulated other comprehensive loss was foreign currency translation adjustment.
Loss Contingencies
The Company records accruals for certain of its outstanding legal proceedings or claims when it is probable that a liability will be incurred and the amount of loss can be reasonably estimated. When a loss contingency is not both probable and estimable, the Company does not record an accrued liability but discloses the nature and the amount of possible loss, if material, in the notes to the consolidated financial statements.
The Company reviews the developments in contingencies that could affect the amount of the provisions that has been previously recorded, and the matters and related possible losses disclosed. The Company makes adjustments to provisions and changes to its disclosures accordingly to reflect the impact of negotiations, settlements, rulings, advice of legal counsel, and updated information. The assessment of whether a loss is probable or reasonably possible, and whether the loss or a range of loss is estimable, often involves complex judgments about future events. Management is often unable to estimate the loss or a range of loss, particularly where (i) the damages sought are indeterminate, (ii) the proceedings are in the early stages, or (iii) there is a lack of clear or consistent interpretation of laws specific to the industry-specific complaints among different jurisdictions. In such cases, there is considerable uncertainty regarding the timing or ultimate resolution of such matters, including eventual loss, fine, penalty or business impact, if any.
Concentration of Credit Risk
Financial instruments that potentially subject the Company to concentrations of credit risk are cash and cash equivalents, restricted cash, and accounts receivable arising from its normal business activities. The Company places its cash and cash equivalents in financial institutions in the U.S., the PRC, Hong Kong and New Zealand, which the management believes to be credit-worthy. The Company establishes an allowance for credit losses primarily based upon the age of receivables and factors surrounding the credit risk of specific customers.
F-16
Related Parties Transactions
A related party is generally defined as (i) any person that holds 10% or more of the Company’s securities and their immediate families, (ii) the Company’s management, (iii) someone that directly or indirectly controls, is controlled by or is under common control with the Company, or (iv) anyone who can significantly influence the financial and operating decisions of the Company. A transaction is considered to be a related party transaction when there is a transfer of resources or obligations between related parties. Related parties may be individuals or corporate entities.
Transactions involving related parties cannot be presumed to be carried out on an arm’s-length basis, as the requisite conditions of competitive, free market dealings may not exist. Representations about transactions with related parties, if made, shall not imply that the related party transactions were consummated on terms equivalent to those that prevail in arm’s-length transactions unless such representations can be substantiated. It is not, however, practical to determine the fair value of amounts due from/to related parties due to their related party nature.
Segment Reporting
The Company uses the “management approach”
in determining reportable operating segments. The management approach considers the internal organization and reporting used by the Company’s
chief operating decision maker for making operating decisions and assessing performance as the source for determining the Company’s
reportable segments. The Company’s chief operating decision maker has been identified as the chief executive officer of the Company
who reviews financial information based on U.S. GAAP. The chief operating decision maker now reviews results analyzed by marketing channel.
This analysis is only presented at the revenue level with no allocation of direct or indirect costs. Consequently, the Company has determined
that it has only
Recently Adopted Accounting Pronouncements
In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes (“ASU 2019-12”) as part of its overall simplification initiative to reduce costs and complexity of applying accounting standards. ASU 2019-12 removes certain exceptions from Topic 740, Income Taxes, including (i) the exception to the incremental approach for intra period tax allocation; (ii) the exception to accounting for basis differences when there are ownership changes in foreign investments; and (iii) the exception in interim period income tax accounting for year-to-date losses that exceed anticipated losses. ASU 2019-12 also simplifies GAAP in several other areas of Topic 740 such as (i) franchise taxes and other taxes partially based on income; (ii) transactions with a government that result in a step up in the tax basis of goodwill; (iii) separate financial statements of entities not subject to tax; and (iv) enacted changes in tax laws in interim periods. ASU 2019-12 is effective for public entities for annual reporting periods and interim periods within those years beginning after December 15, 2020, and early adoption is permitted. The Company adopted this guidance on January 1, 2021. The adoption of this guidance did not have a material impact on the Company’s consolidated financial statements and related disclosures.
Recently Issued Accounting Pronouncements Not Yet Adopted
In March 2020, the FASB issued ASU 2020-04, Reference Rate Reform, (Topic 848). The amendments in Topic 848 provide optional expedients and exceptions for applying GAAP to contracts, hedging relationships, and other transactions affected by reference rate reform if certain criteria are met. Topic 848 can be applied by all entities as of the beginning of the interim period that includes March 12, 2020, or any date thereafter, and entities may elect to apply the amendments prospectively through December 31, 2022. The Company did not utilize the optional expedients and exceptions provided by this standard during the year ended December 31, 2021. The Company is evaluating the impact of this standard on its consolidated financial statements and disclosures.
F-17
Note 3- BUSINESS COMBINATION
On October 31, 2021, the Company completed
the acquisition of
Pursuant to the Stock Purchase Agreements executed
on October 31, 2021, the Company acquired
The transaction was accounted for as a business combination using the purchase method of accounting. The purchase price allocation of the transaction was determined by the Company with the assistance of an independent appraisal firm based on the estimated fair value of the assets acquired and liabilities assumed as of the acquisition date.
The following table presents the purchase price
allocation to assets acquired and liabilities assumed as of the acquisition date. The non-controlling interest represents the fair value
of the
| As of October 31, 2021 | ||||
| Cash acquired | $ | |||
| Accounts receivable, net | ||||
| Inventories, net | ||||
| Prepaid expenses | ||||
| Other current assets | ||||
| Property and equipment, net | ||||
| Intangible assets | ||||
| Goodwill | ||||
| Customer deposit | ( | ) | ||
| Accrued rent | ( | ) | ||
| Accrued salary and other current liabilities | ( | ) | ||
| Noncontrolling interest | ( | ) | ||
| Total consideration | $ | |||
The intangible assets mainly include Bo Ling’s Chinese Restaurant,
Inc.’s brand name of $
The fair value of the non-controlling interest in Far Ling’s Inc. was determined based on the purchase price allocation report prepared by an independent third-party appraiser by using discount cash flow model.
The amounts of revenue and net loss of Far Ling’s Inc. and Bo Ling’s Chinese Restaurant, Inc. as included in the Company’s consolidated statement of operations from the acquisition date to December 31, 2021 are as follows:
| From acquisition date to December 31, 2021 | ||||
| Net Revenue | $ | |||
| Net loss | $ | ( | ) | |
F-18
The following table presents the Company’s unaudited pro forma results for the years ended December 31, 2021, 2020 and 2019, respectively, as if the above-mentioned acquisition had occurred on January 1, 2019.
| For the years ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| Pro forma revenue | $ | $ | $ | |||||||||
| Pro forma net loss | $ | ( | ) | $ | ( | ) | $ | ( | ) | |||
| Pro forma net loss attributable to TDH Holdings Inc. | $ | ( | ) | $ | ( | ) | $ | ( | ) | |||
| Pro forma loss per share- basic and diluted | $ | ( | ) | $ | ( | ) | $ | ( | ) | |||
| Weighted average number of shares | ||||||||||||
Note 4 – RESTRICTED CASH
Restricted cash consisted of the followings:
| December 31, 2021 | December 31, 2020 | |||||||
| Bank deposits judicially frozen by the court as a result of legal proceedings | $ | $ | ||||||
Note 5 – ACCOUNTS RECEIVABLE, NET AND ACCOUNTS RECEIVABLE-RELATED PARTIES, NET
Accounts receivable, net and accounts receivable - related parties, net, consisted of the following:
| December 31, 2021 | December 31, 2020 | |||||||
| Accounts receivable | $ | $ | ||||||
| Less: Allowance for credit losses | ( | ) | ( | ) | ||||
| Accounts receivable, net | $ | $ | ||||||
| Accounts receivable - related parties | $ | $ | ||||||
| Less: Allowance for credit losses | ||||||||
| Accounts receivable - related parties, net | $ | $ | ||||||
The changes in allowance for credit losses consisted of the following:
| For the Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| Balance, beginning of the year | $ | $ | $ | |||||||||
| Provision for credit losses | ||||||||||||
| Write-off uncollectable accounts receivable | ( | ) | ||||||||||
| Translation adjustment | ( | ) | ||||||||||
| Balance, end of the year | $ | $ | $ | |||||||||
F-19
Note 6 – INVENTORIES
As of December 31, 2021 and 2020, inventories consisted of the following:
| December 31, 2021 | December 31, 2020 | |||||||
| Raw materials | $ | $ | ||||||
| Work in process | ||||||||
| Finished goods | ||||||||
| Total | ||||||||
| Inventory write-down | ( | ) | ( | ) | ||||
| Translation adjustments | ( | ) | ( | ) | ||||
| Inventories, net | $ | $ | ||||||
The Company recorded write-down of potentially
obsolete or slow-moving inventories of $
Note 7 – PROPERTY, PLANT AND EQUIPMENT, NET
As of December 31, 2021 and 2020, property, plant and equipment consisted of the following:
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Machinery equipment | $ | $ | ||||||
| Electronic equipment | ||||||||
| Office equipment | ||||||||
| Vehicles | ||||||||
| Buildings | ||||||||
| Leasehold Improvement | ||||||||
| Total property, plant and equipment | ||||||||
| Less: accumulated depreciation | ( | ) | ( | ) | ||||
| Less: impairment loss | ( | ) | ||||||
| Translation adjustments | ||||||||
| Property, plant and equipment, net | $ | $ | ||||||
Depreciation expense for the years ended December
31, 2021, 2020 and 2019 was $
As of December 31, 2021 and 2020, certain property,
plant and equipment with net book value of $
As of December 31, 2021 and 2020, certain buildings
with net book value of $
F-20
Note 8 – LAND USE RIGHTS
| December 31, 2021 | December 31, 2020 | |||||||
| Land use rights | $ | $ | ||||||
| Accumulated amortization | ( | ) | ( | ) | ||||
| Land use rights, net | $ | $ | ||||||
During the years ended December 31, 2021, 2020
and 2019, amortization expense amounted to $
As of December 31, 2021 and 2020, land use right
with net book value of $
Estimated future amortization expense for land use rights is as follows:
| Years ended December 31, | Amortization expense | |||
| 2022 | $ | |||
| 2023 | ||||
| 2024 | ||||
| 2025 | ||||
| 2026 | ||||
| Thereafter | ||||
| $ | ||||
Note 9 – SHORT-TERM LOANS
The Company’s loans consist of the following:
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Short-term loans | $ | $ | ||||||
| Total | $ | $ | ||||||
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Secured | $ | $ | ||||||
| Unsecured | ||||||||
| Total | $ | $ | ||||||
For the years ended December 31, 2020 and 2019, the Company entered
into various loans agreements with various Chinese banks, other entities and individuals for an aggregated amount of $
F-21
During the years ended December 31, 2021 and 2020, the Company did not make repayment on certain notes payables issued by Shanghai Pudong Development Bank (“SPDB”) as scheduled. SPDB paid on behalf of the Company to the holders according to the terms of the agreement. As a result, the unpaid notes payables were reclassified to loan payable to SPDB and the amount was included in short-term loans on the consolidated balance sheets as of December 31, 2021 and 2020. In November 2019, SPDB filed litigation against the Company. In October 2020, the court has ruled that, among others, the Company should repay SPDB principal and interests in full within 10 days from the date of ruling. As of the date of this filing, the Company has not fulfilled the court order. During the year ended December 31, 2020, SPDB used the Company’s restricted cash deposited in the bank to settle against partial of outstanding balance of short-term loans, the cash flow of which was included in the repayments of short-term loans in the financing activities. The Company did not make additional repayment to SPDB during the year ended December 31, 2021. On March 16, 2022, the People's Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd. Accordingly, the outstanding loan payable to SPDB is now subject to the bankruptcy proceedings (see Note 17).
As of December 31, 2021, corporate or personal guarantees provided for those loans were as follows:
| $ | Pledged by cash deposit of RMB300,000 (approximately $43,000) from Gaochuang, real property of Rongfeng Cui and Yanjuan Wang, former CEO of the Company and his wife, and land use right and real property of Qingdao Saike Environmental Technology Co., Ltd; Guaranteed by Rongfeng Cui, Yanjuan Wang and Gaochuang. | |||
| $ | Pledged by real property of the Company and real property of Rongfeng Cui; Guaranteed by Rongfeng Cui and Yanjuan Wang | |||
| $ | Guaranteed by Rongfeng Cui and Yanjuan Wang | |||
| $ | Pledged by restricted cash of RMB300,000 (approximately $47,054), four patents and certain equipment of the Company; Guaranteed by Rongfeng Cui, Yanjuan Wang and Qingdao Saike Environmental Technology Co., Ltd. |
On December 20, 2018, the Company entered into
a loan agreement with China Construction Bank (“CCB”) to borrow RMB
The loan agreement between the Company and CCB contains a number of covenants and restrictions. Such covenants and restrictions include, but are not limited to, financial ratios. Unless a breach is remediated or a waiver is obtained, a breach of such covenants and restrictions generally permits lender to demand accelerated repayment of principal and interest.
As of December 31, 2018, the Company did not meet
the financial ratios set forth in the debt covenants. Starting December 2019, the Company has been in default on the loan. In January
2020, CCB filed litigation against the Company. In April 2020, the court has ruled that, among others, the Company should repay CCB the
principal and interests in full within 10 days from the date of ruling. On March 13, 2021, the land and factory buildings on the land
owned by Qingdao Tiandihui Foodstuffs Co., Ltd. were auctioned by the court for $
The Company’s repayments of substantially all its outstanding short-term loans were delinquent on or around November 2019, and the Company is involved in a number of lawsuits filed by various lenders. See further discussions in Note 17 and Note 20.
Note 10 – OTHER CURRENT LIABILITIES
Other current liabilities mainly consist of accrued liabilities, interest payable owed to third party and related party creditors, Wages payable and other payables. Accrued liabilities mainly include accrued employee welfares and benefits and rent expenses. Other payables primarily represent accrued fee of Borrowing from individuals and transportation costs as of December 31, 2021 and primarily represented accrued management fee paid to an asset management company in connection with the management of the Company’s short-term investments in marketable securities as of December 31, 2020.
| As of December 31, | ||||||||
| 2021 | 2020 | |||||||
| Accrued Liabilities | $ | $ | ||||||
| Interest Payable | ||||||||
| Interest Payable - Related Parties | ||||||||
| Other Payables | ||||||||
| Total | $ | $ | ||||||
F-22
Note 11 – RELATED PARTY TRANSACTIONS
The related parties had transactions for the years ended December 31, 2021, 2020 and 2019 consist of the following:
| Name of Related Party | Nature of Relationship at December 31, 2021 | |
| Dandan Liu | ||
| Rongfeng Cui | ||
| Rongbing Cui | ||
| Feng Zhang | ||
| Yanjuan Wang | ||
| Yan Fu | ||
| Yuxiang Qi | ||
| Tide (Shanghai) Industrial Co. Ltd. (“Tide”) | ||
| Qingdao Like Pet Supplies Co., Ltd. (“Like”) | ||
| Qingdao Saike Environmental Technology Co., Ltd. (“Saike”) | ||
| Huangdao Ding Ge Zhuang Kangkang Family Farm (“Kangkang Family Farm”) | ||
| TDH Group BVBA | ||
| TDH JAPAN | ||
| Qingdao Yinhe Jiutian Information Technology Co., Ltd. (“Yinhe Jiutian”) | ||
| Huangdao Hanyinhe Software Development Center Co., Ltd. (“Hanyinhe”) | ||
| Zhenyu Trading (Qingdao) Co., Ltd. (“Zhenyu”) | ||
| Beijing Quanmin Chongai Information Technology Co., Ltd. (“Quanmin Chongai”) | ||
| LAI LINGS LENEXA | ||
| Products Inc. | ||
| Bo Lings at Zona Rosa in the Northland | ||
| Richard Ng |
F-23
Due from related parties, net
Due from related parties, net consisted of the following:
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Tide | $ | $ | ||||||
| Rongfeng Cui | ||||||||
| Less: Allowance for credit losses | ( | ) | ||||||
| Due from related parties, net | $ | $ | ||||||
The balance of due from Tide represents operating expenses paid by the Company on behalf of Tide. The balances of due from Rongfeng Cui represent overseas trade receivables collected by him on behalf of the Company.
Due to related parties
Due to related parties consisted of the following:
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Rongbing Cui | ||||||||
| Rongfeng Cui | ||||||||
| Dandan Liu | - | |||||||
| Feng Zhang | - | |||||||
| Products Inc. | - | |||||||
| Total | $ | $ | ||||||
The balance of due to related parties represents expenses paid by related parties on behalf of the Company as well as advances the Company obtained from related parties for working capital purposes. The amounts owed to the related parties are unsecured, non-interest bearing and payable on demand.
Short-term loans from related parties
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Rongfeng Cui | $ | $ | ||||||
| Yuxiang Qi | ||||||||
| Yan Fu | ||||||||
| Total | $ | $ | ||||||
In March 2018,
The Company borrowed unsecured short term loans
from related parties in the amount of $
F-24
Modification of Loans from related party
In January 2018,
In June 2018,
The Company analyzed the amendments under ASC 470-50 and concluded that these amendments did not qualify for debt modification.
The interest expenses for the loans from related
parties amounted to $
Sales to related parties, purchases from related parties and services provided by related parties
| For the Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| SALES TO: | ||||||||||||
| Like | $ | $ | $ | |||||||||
| Zhenyu | ||||||||||||
| Quanmin Chongai | ||||||||||||
| Liujiayi | ||||||||||||
| TDH Group BVBA | ||||||||||||
| Total Sales | $ | $ | $ | |||||||||
For the years ended December 31, 2021, 2020 and
2019, the cost of revenue in connection with sales to related parties were $
F-25
Accounts payable to related parties
| December 31, | December 31, | |||||||
| 2021 | 2020 | |||||||
| Yinhe Jiutian | $ | $ | ||||||
| Kangkang Family Farm | ||||||||
| Zhenyu Trading | ||||||||
| Total | $ | $ | ||||||
Leases from related parties
The Company entered into various operating lease agreements for certain premises with its related parties during 2019 and 2020. The related party lease agreements were terminated in 2021. See Note 16.
Note 12 – INCOME TAXES
British Virgin Islands (“BVI”)
Under the current laws of BVI, TDH Holdings is not subject to tax on income or capital gain. In addition, payments of dividends by the Company to their shareholders are not subject to withholding tax in the BVI.
Hong Kong
The Company’s subsidiary, TDH HK and TDH
Foods were incorporated in Hong Kong and has no operating profit or tax liabilities during the period. TDH HK and TDH Foods were subject
to tax at
United State
The Company’s subsidiary, TDH Petfood LLC was incorporated in
Nevada as a limited liability company had no active business operations since its incorporation and it has been deregistered and dissolved
in 2021 (see Note 1). The Company’s subsidiary, TDH Income, is incorporated in the State of Nevada and is subject to the United
States Federal income tax at a statutory rate of
Japan
The Company’s subsidiary, TDH JAPAN, is
incorporated in Japan and has no operating profit or tax liabilities during the reporting period. TDH JAPAN is subject to tax at
Belgium
The Company’s subsidiary, TDH Group BVBA,
is incorporated in Belgium and has no operating profit or tax liabilities during the reporting period. TDH Group BVBA is subject to tax
at
F-26
PRC
The Company’s subsidiaries incorporated
in the PRC are subject to PRC Enterprise Income Tax (“EIT”) on the taxable income in accordance with the relevant PRC income
tax laws. On March 16, 2007, the National People’s Congress enacted a new enterprise income tax law, which took effect as of January
1, 2008. The law applies a uniform
On December 2, 2016,
The provision for income taxes consists of the following:
| For the Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| Current | $ | $ | $ | |||||||||
| Deferred | ( | ) | ||||||||||
| Total | $ | $ | ( | ) | $ | |||||||
The reconciliations of the statutory income tax rate and the Company’s effective income tax rate are as follows:
| For the Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| United states income tax rate | % | |||||||||||
| HK statutory income tax rate | % | % | % | |||||||||
| PRC statutory income tax rate difference | % | % | % | |||||||||
| Effect of additional deduction on R&D expense and salary for disabled workers | % | % | % | |||||||||
| Effect of expenses not deductible for tax purposes | - | % | - | % | - | % | ||||||
| Valuation allowance recognized with respect to the loss in subsidiaries | - | % | - | % | - | % | ||||||
| Other | - | % | - | % | % | |||||||
| Total | % | - | % | - | % | |||||||
Accounting for Uncertainty in Income Taxes
The tax authority of the PRC Government conducts periodic and ad hoc tax filing reviews on business enterprises operating in the PRC after those enterprises complete their relevant tax filings. Therefore, the Company’s PRC entities’ tax filings results are subject to change. It is therefore uncertain as to whether the PRC tax authority may take different views about the Company’s PRC entities’ tax filings, which may lead to additional tax liabilities.
ASC 740 requires recognition and measurement of uncertain income tax positions using a “more-likely-than-not” approach. The management evaluated the Company’s tax positions and concluded that no provision for uncertainty in income taxes was necessary as of December 31, 2021 and 2020.
Deferred tax assets and liabilities as of December 31, 2021 and 2020 are composed of the following:
| As of December 31, | ||||||||
| 2021 | 2020 | |||||||
| Deferred tax assets, non-current | ||||||||
| Net operating loss carrying forward | $ | $ | ||||||
| Total deferred tax assets | ||||||||
| Valuation allowance | ( | ) | ( | ) | ||||
| Total deferred tax assets | $ | $ | ||||||
F-27
| As of December 31, | ||||||||
| 2021 | 2020 | |||||||
| Deferred tax liabilities, non-current | ||||||||
| Property, plant and equipment | $ | ( | ) | $ | ||||
| Total deferred tax liabilities | $ | ( | ) | $ | ||||
In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible or are utilized.
Note 13 – STOCKHOLDERS’ EQUITY
Common shares
In November 2018, the Company issued
On January 31, 2019, a total of
The Company entered into stock subscription agreements
in August 2019, pursuant to which the Company agreed to sell
On December 2, 2020, the Company entered into
subscription agreements with four accredited investors for the sale of
On September 30, 2021, the Company and certain
investors entered into a securities purchase agreement in connection with a registered direct offering, pursuant to which the Company
agreed to sell to the investors an aggregate of
On November 3, 2021, the Company and certain investors
entered into a securities purchase agreement in connection with a registered direct offering, pursuant to which the Company agreed to
sell to the investors an aggregate of
Investor warrants
In connection
with the Company’s registered direct offering as consummated on September 30, 2021, pursuant to the securities purchase agreement,
the Company also agreed to sell to the investors warrants exercisable for an aggregate of
In addition, in
connection with the Company’s registered direct offering as consummated on November 3, 2021, pursuant to the securities purchase
agreement, the Company also agreed to sell to the investors warrants exercisable for an aggregate
of
F-28
For the above mentioned investor warrants, the
Company may compel the exercise of the warrants if the closing price of the Company’s common shares exceeds $
Management
determined that these warrants meet the requirements for equity classification under ASC 815-40 because they are indexed to its own stock.
As of December 31, 2021,
Additional
Statutory reserve
As of December 31, 2021 and 2020, the Company
had statutory reserve in the amount of $
Restricted net assets
As a result of the PRC laws and regulations, the PRC entities are restricted from transferring a portion of their net assets to the Company. Amounts restricted included additional paid-in capital and statutory reserves of the Company’s PRC subsidiaries.
As of December 31, 2021 and 2020, total restricted
net assets were $
Note 14 – CONCENTRATIONS OF CREDIT RISK AND MAJOR CUSTOMERS
Customers
For the years ended December 31, 2021, 2020 and
2019, customers accounting for
| For the Years Ended December 31, | ||||||||||||
| Customer | 2021 | 2020 | 2019 | |||||||||
| Customer A | * | % | % | % | ||||||||
| Customer G | * | % | % | % | ||||||||
| Customer P | * | % | % | % | ||||||||
| * | Less
than |
As of December 31, 2021, Customer Q, Customer R and Customer S accounted
for
As of December 31, 2020, Customer L, Customer
M, Customer N and Customer O accounted for
F-29
Suppliers
For the years ended December 31, 2021, 2020 and
2019, suppliers accounting for
| For the Years Ended December 31, | ||||||||||||
| Supplier | 2021 | 2020 | 2019 | |||||||||
| Supplier A | % | % | % | |||||||||
| Supplier B | % | % | % | |||||||||
| Supplier C | % | % | % | |||||||||
| Supplier D | % | % | % | |||||||||
| Supplier E | % | % | % | |||||||||
| Supplier F | % | % | % | |||||||||
| Supplier G | % | % | % | |||||||||
| * | Less
than |
As of December 31, 2021, Supplier B’s balance
accounted for
As of December 31, 2020, Supplier B’s balance
accounted for
Note 15 – SEGMENT AND REVENUE ANALYSIS
The Company is engaged in the business of manufacturing and selling of pet food and restaurant operations.
An operating segment is a component of the Company that engages in business activities from which it may earn revenues and incur expenses, and is identified on the basis of the internal financial reports that are provided to and regularly reviewed by the Company’s chief operating decision maker in order to allocate resources and assess performance of the segment.
In accordance with ASC 280, Segment Reporting,
operating segments are defined as components of an enterprise about which separate financial information is available that is evaluated
regularly by the chief operating decision maker (“CODM”), or decision making group, in deciding how to allocate resources
and in assessing performance. The Company uses the “management approach” in determining reportable operating segments. The
management approach considers the internal organization and reporting used by the Company’s chief operating decision maker for making
operating decisions and assessing performance as the source for determining the Company’s reportable segments. Management, including
the chief operating decision maker, reviews operation results by the revenue of different services. Based on management’s assessment,
the Company has determined that it has
Certain entity-wide disclosures relating to revenues for the years ended December 31, 2021, 2020 and 2019 are as follows:
| For the year ended December 31, 2021 | ||||||||||||
| Pet food sales | Restaurant business | Total | ||||||||||
| Revenue | $ | $ | $ | |||||||||
| Net loss | $ | ( | ) | $ | ( | ) | $ | ( | ) | |||
| Depreciation and amortization | $ | $ | $ | |||||||||
| Capital expenditure | $ | $ | $ | |||||||||
| Total assets | $ | $ | $ | |||||||||
| For the year ended December 31, 2020 | ||||||||||||
| Pet food sales | Restaurant business | Total | ||||||||||
| Revenue | $ | $ | $ | |||||||||
| Net loss | $ | ( | ) | $ | $ | ( | ) | |||||
| Depreciation and amortization | $ | $ | $ | |||||||||
| Capital expenditure | $ | $ | $ | |||||||||
| Total assets | $ | $ | $ | |||||||||
| For the year ended December 31, 2019 | ||||||||||||
| Pet food sales | Restaurant business | Total | ||||||||||
| Revenue | $ | $ | $ | |||||||||
| Net loss | $ | ( | ) | $ | $ | ( | ) | |||||
| Depreciation and amortization | $ | $ | $ | |||||||||
| Capital expenditure | $ | $ | $ | |||||||||
| Total assets | $ | $ | $ | |||||||||
F-30
The net revenue generated from different marketing channels consists of the following:
| For the Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| Overseas sales | $ | $ | $ | |||||||||
| Domestic sales | ||||||||||||
| Electronic commerce | ||||||||||||
| Restaurant revenue | ||||||||||||
| Less: Sale tax and addition | ( | ) | ( | ) | ( | ) | ||||||
| Total net revenue | $ | $ | $ | |||||||||
The net revenue generated from different product lines and services is set forth as following:
| For the Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| Pet chews | $ | $ | $ | |||||||||
| Dried pet snacks | ||||||||||||
| Wet canned pet food | ||||||||||||
| Dental health snacks | ||||||||||||
| Baked pet biscuits | ||||||||||||
| Restaurant revenue | ||||||||||||
| Others | ||||||||||||
| Less: Sales tax and addition | ( | ) | ( | ) | ( | ) | ||||||
| Total net revenue | $ | $ | $ | |||||||||
The net revenue generated from different countries is set forth as following:
| For the Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| South Korea | $ | $ | $ | |||||||||
| China | ||||||||||||
| United Kingdom | ||||||||||||
| Germany | ||||||||||||
| U.S. | ||||||||||||
| Other countries | ||||||||||||
| Less: Sales tax and addition | ( | ) | ( | ) | ( | ) | ||||||
| Total net revenue | $ | $ | $ | |||||||||
“Other countries” are comprised of
all countries whose revenue, individually, was less than
The Company’s long-lived assets associated with pet food business are substantially located in the PRC. The Company’s long-lived assets associated with restaurant business operations are located in the United States.
F-31
Note 16 – OPERATING LEASES
The company has signed two lease agreements for
office premises and restaurant premises.
The components of lease expense were as follows:
| For the Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| Operating lease cost | $ | $ | $ | |||||||||
| Short-term lease costs | ||||||||||||
| Total lease cost | $ | $ | $ | |||||||||
Supplemental cash flow information related to leases was as follows:
| For the Years Ended December 31, | ||||||||||||
| 2021 | 2020 | 2019 | ||||||||||
| Cash paid for amounts included in the measurement of lease liabilities: | ||||||||||||
| Operating cash flow from operating leases | $ | $ | $ | |||||||||
| Weighted-average remaining lease term | ||||||||||||
| Weighted-average discount rate | % | % | % | |||||||||
Supplemental balance sheet information related to leases was as follows:
| As of December 31, | ||||||||
| 2021 | 2020 | |||||||
| Operating lease right-of-use assets | $ | $ | ||||||
| Operating lease right-of-use assets, related parties | ||||||||
| Total lease right-of-use assets | ||||||||
| Operating lease liabilities, current | ||||||||
| Operating lease liabilities-related parties, current | ||||||||
| Operating lease liabilities-related party, non-current | ||||||||
| Total operating lease liabilities | $ | $ | ||||||
The following table summarizes the maturity of our operating lease liabilities as of December 31, 2021:
| 2022 | $ | |||
| 2023 | ||||
| 2024 | ||||
| 2025 | ||||
| 2026 | ||||
| Thereafter | ||||
| Total | ||||
| Less imputed interest | ( | ) | ||
| Total operating lease liabilities | $ |
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NOTE 17 – COMMITMENTS AND CONTINGENCIES
COMMITMENTS
The Company provides counter guarantee to Gaochuang
including a cash deposit of RMB
During the year ended December 31, 2019, the Company did not make repayment on certain notes payables as scheduled, and Gaochuang, as one of the guarantors, paid on behalf of the Company to the holders of such notes payables. As a result, the unpaid notes payables were reclassified to loan payable to Gaochuang and the amount was included in short-term loans on the consolidated balance sheets as of December 31, 2021 and 2020. The loan payable to Gaochuang was pledged and guaranteed by the aforementioned assets and guarantors, respectively, under the counter guarantee.
Future minimum lease payments for operating lease commitments as of December 31, 2021 are disclosed in Note 16.
CONTINGENCIES
The Company is involved in a number of claims pending in various courts, in arbitration, or otherwise unresolved as of December 31, 2021. These claims are substantially related to non-payment of wage payables, non-payment of vendor payables and non-payment of loans and notes payables. Adverse results in these claims may include awards of damages and may also result in, or even compel, a change in the Company’s business practices, which could impact the Company’s future financial results. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd. Accordingly, these legal claims are now subject to the bankruptcy proceedings.
| I) | Labor arbitration claims by former employees |
Since November 2019, certain former employees
of the Company commenced arbitration proceedings against the Company under applicable labor rules and standards, claiming, among others,
lost wages and/or severance payments. The Company accrued approximately $
| II) | Legal claims by vendors |
Since November 2019, the Company has been the subject of multiple lawsuits by its raw material suppliers, printing and packaging suppliers, transportation companies and other vendors due to its non-payment of various invoices for vendor services rendered. As of the date of this report, substantially all cases have been concluded. The mediation and judgement involved with claims of liabilities arose before December 31, 2019 and the Company has included substantially all such claims in accounts payable on the consolidated balance sheets as of December 31, 2021 and 2020.
| III) | Legal claims by lenders |
Since November 2019, the Company has defaulted on multiple loans and notes payable from various lenders. As a consequence, the Company has been subjected to multiple lawsuits by various Chinese banks and other lenders. The claims raised in these lawsuits pertain to the Company’s non-payment of principals and interests as scheduled in the loan agreements and note payable agreements. The claims pertained to liabilities arose before December 31, 2019, and the Company has included substantially all such claims in short-term loans on the consolidated balance sheets as of December 31, 2021 and 2020. The court has ruled on the litigations and among others, request the Company to pay for litigation related fees; repay the outstanding loans and interests to the lenders within a short period, normally 10 days, from the date of the rulings and grant the lenders with priority right of the repayment from the auction proceeds of the pledged real estate in case of non-performance by the Company. As of December 31, 2021, the Company has not fulfilled the court order.
The above legal proceedings led to, among others, the Company’s certain bank accounts and property, plant and equipment judicially frozen by the court as of December 31, 2021 and 2020. On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd. entered into bankruptcy proceedings. Accordingly, these legal claims are now subject to the bankruptcy proceedings. See recent development of legal proceedings at Note 20.
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Note 18 – LONG-TERM INVESTMENTS
In February 2018, the Company acquired
In March 2018, the Company invested RMB
Note 19 – DISPOSAL OF SUBSIDIARIES
During the year ended December 31, 2019, Kangkang
Development, Yichong, Lingchong and Lile were deconsolidated from the Company’s consolidated financial statements (also see Note
1). The Company recognized losses of $
TDH Petfood LLC had no active business operations since its incorporation, and it has been deregistered and dissolved in 2021.
TDH Japan has been deregistered and dissolved in February 2021.
The disposals mentioned above did not constitute a strategic shift that would have a major effect on the Company’s operations or financial results and as such, the disposals were not classified as discontinued operations in the accompanying consolidated financial statements.
Note 20 – SUBSEQUENT EVENTS
Progress of legal proceedings
On March 16, 2022, the People’s Court of Huangdao District, Qingdao City, Shandong Province made a civil ruling and announced the acceptance of creditors’ application of bankruptcy liquidation of Qingdao Tiandihui Foodstuffs Co., Ltd., and it entered into bankruptcy proceedings.
Subsequent warrants exercise
Pending Nasdaq compliance issue
On February 23, 2022,
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