moho-20f_20191231.htm

 

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C.  20549

 

FORM 20-F

REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934

OR

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2019

OR

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

OR

SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Date of event requiring this shell company report

For the transition period from                to                

Commission file number: 001-39121

 

ECMOHO Limited

(Exact name of Registrant as specified in its charter)

 

N/A

(Translation of Registrant’s name into English)

 

Cayman Islands

3rd Floor, 1000 Tianyaoqiao Road

Xuhui District

Shanghai, 200030

The People’s Republic of China

(Jurisdiction of incorporation or organization)

(Address of principal executive offices)

Zoe Wang

Tel.: +86 21 6113 2270

Email: ir@ecmoho.com

Address:

3rd Floor, 1000 Tianyaoqiao Road

Xuhui District

Shanghai, 200030

The People’s Republic of China

(Name, Telephone, Email 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 

 

Trading Symbol(s) 

 

Name of each exchange on which registered 

American depositary shares, each representing four Class A ordinary shares

Class A ordinary shares, par value US$0.00001 per share*

 

MOHO

 

The Nasdaq Stock Market LLC

 

The Nasdaq Stock Market LLC

 

*Not for trading, but only in connection with the listing on the Nasdaq Stock Market LLC of American depositary shares, each representing four (4) Class A ordinary Shares.  

 

 


Securities registered or to be registered pursuant to Section 12(g) of the Act:

None

(Title of Class)

Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:

None

(Title of Class)

Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report.

As of December 31, 2019, there were (i) 63,567,099 Class A ordinary shares, par value US$0.00001 per share, including 18,700,000 Class A ordinary shares represented by 4,675,000 American depositary shares, and (ii) 75,150,400 Class B ordinary shares, par value US$0.00001 per share.  Each American depositary share represents four (4) Class A ordinary shares as of December 31, 2019.  

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.       Yes      No

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      No

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.       Yes      No

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted 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 such files).       Yes      No

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 the definition of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.  

Large accelerated filer      Accelerated filer      Non-accelerated filer      Emerging growth company  

If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act.     

† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.

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.

 

U.S. GAAP  

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

(APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PAST FIVE YEARS)

Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.    Yes      No  

 

 

 

 


 

Reliance on SEC Relief from Filing Requirements

We are filing this annual report on Form 20-F for the year ended December 31, 2019, in reliance on the order Release No. 34-88465 (the “Order”) issued by the Securities and Exchange Commission (the “SEC”) on March 25, 2020, pursuant to Section 36 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), granting exemptions from specified provisions of the Exchange Act and certain rules thereunder.  

On April 30, 2020, we furnished a report on Form 6-K to the SEC to indicate our intention to rely on the relief granted by the Order.  As a result of the COVID-19 pandemic and the containment measures and restrictions implemented by the Chinese government since late January 2020, we were unable to resume normal business operations at our corporate headquarters in Shanghai until the middle of March 2020.  As a result, our finance department was unable to complete the preparation of our consolidated financial statements and this annual report on Form 20-F until after the original filing deadline of April 30, 2020.  

Conventions that apply to this Annual Report on Form 20-F

In this annual report on Form 20-F, each of the following terms has the meaning ascribed to it below:

 

“we,” “us,” “our company” and “our” refer to ECMOHO Limited, a Cayman Islands exempted company with limited liability (or its predecessors as the context requires), and its subsidiaries, consolidated affiliated entities (including our variable interest entity) and their respective subsidiaries;

 

“ADRs” refers to our American depository receipts, which evidence our ADSs;

 

“ADSs” refers to our American depositary shares, each of which represents four (4) of our Class A ordinary shares;

 

“brand partners” refers to owners of non-proprietary brands (represented in our brand portfolio), each of which is managed by a dedicated operations team;

 

“China” or “PRC” refers to the People’s Republic of China, excluding, for the purpose of this annual report on Form 20-F only, Taiwan, Hong Kong and Macau;

 

“Class A ordinary share” refers to a Class A ordinary share in the capital of our company, with a par value of US$0.00001 per share;

 

“Class B ordinary share” refers to a Class B ordinary share in the capital of our company, with a par value of US$0.00001 per share;

 

“ECMOHO Hong Kong” refers to ECMOHO (Hong Kong) Health Technology Limited, a limited company established under the Laws of Hong Kong;

 

“ECMOHO Shanghai” refers to Shanghai ECMOHO Health Biotechnology Co, Ltd., a limited liability company established under the Laws of the PRC;

 

“EIT Law” refers to the Enterprise Income Tax Law of the PRC;

 

“initial public offering” refers to our initial public offering of of 4,675,000 ADSs (including ADSs sold in connection with the over-allotment offering), representing 18,700,000 of our Class A ordinary shares;

 

“integrated solution provider” refers to entities that provide services connecting producers with consumers by combining global sourcing capabilities with local distribution channels and coverage.  Such providers typically offer integrated solutions consisting of one-stop information technology solutions, online and offline store operations, digital marketing, warehousing and logistics, and customer management;

 

“KOLs” refers to key opinion leaders who have extensive experience or industry insights in the various subsectors of the health and wellness industry;

i


 

 

“major brand partners” refers to our brand partners, each of which contributed over US$10.0 million to our product sales revenues in the designated period;

 

“ordinary shares” refers, collectively, to our Class A ordinary shares and Class B ordinary shares;

 

“our variable interest entity” or “our VIE” refers to Shanghai Yibo;

 

“RMB” or “Renminbi” refers to the legal currency of China;

 

“Shanghai Yibo” refers to Shanghai Yibo Medical Equipment Co., Ltd.;

 

“SKU” refers to stock keeping unit, which, for the purpose of this annual report on Form 20-F, can be a combination of other stock keeping units;

 

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

 

“Xianggui Shanghai” refers to Xianggui (Shanghai) Biotechnology Co., Ltd; and

 

“Yang Infinity” refers to Yang Infinity (Shanghai) Biotechnology Co., Limited.

Cautionary Note Regarding Forward-looking Statements

This annual report on Form 20-F contains certain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act.  All statements other than statements of historical fact in this annual report on Form 20-F are forward-looking statements.  These forward-looking statements can be identified by words or phrases such as “anticipate,” “believe,” “estimate,” “expect,” “intend,” “is/are likely to,” “may,” “plan,” “should,” “will” and similar expressions.  These forward-looking statements include, without limitation, statements relating to:

 

the continued growth of the e-commerce market or the health and wellness industry in China;

 

our ability to manage the expansion of our business and implement our business strategies;

 

our ability to anticipate changes in customer and consumer preferences;

 

our ability to maintain and develop favorable relationships with e-commerce channels, brand partners, content generators and other third parties involved in our ecosystem;

 

our ability to compete with other companies and new entrants to the market;

 

our capital needs and ability to source such capital on acceptable terms;

 

dependence on key management personnel and quality and retention of personnel generally;

 

regulatory changes in the PRC and compliance with such regulations;

 

the impact of the COVID-19 pandemic on the PRC economy, our major brand partners in the United States and Europe and our operations and financial performance;

 

our ability to effectively manage our inventory and warehousing capabilities;

 

our own information technology systems and infrastructure;

 

other factors that may affect our business, financial condition and results of operations; and

 

other risk factors discussed under Item 3. Key Information – D. Risk Factors.

ii


 

Forward-looking statements are not guarantees of performance and are based on certain assumptions, discuss future expectations, describe plans and strategies, contain projections of results of operations or of financial condition or state other forward-looking information.  Our ability to predict results or the actual effect of plans or strategies is inherently uncertain, particularly given the current economic environment.  Although we believe that the expectations reflected in such forward-looking statements are based on reasonable assumptions, our actual results and performance could differ materially from those set forth in the forward-looking statements and you should not unduly rely on these statements.  These forward-looking statements involve risks, uncertainties and other factors that may cause our actual results in future periods to differ materially from those forward-looking statements.  

All forward-looking statements included herein are based upon information available to us on the date hereof and we undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.  

iii


 

TABLE OF CONTENTS

 

PART I

 

 

 

1

 

Item 1.

 

Identity of Directors, Senior Management and Advisers

1

 

 

A.

Directors and Senior Management

1

 

 

B.

Advisers

1

 

 

C.

Auditors

1

 

Item 2.

 

Offer Statistics and Expected Timetable

1

 

 

A.

Offer Statistics

1

 

 

B.

Method and Expected Timetable

1

 

Item 3.

 

Key Information

1

 

 

A.

Selected Financial Data

1

 

 

B.

Capitalization and Indebtedness

4

 

 

C.

Reasons for the Offer and Use of Proceeds

4

 

 

D.

Risk Factors

4

 

Item 4.

 

Information on the Company

38

 

 

A.

History and Development of the Company

38

 

 

B.

Business Overview

39

 

 

C.

Organizational Structure

59

 

 

D.

Property, Plants and Equipment

61

 

Item 4A.

 

Unresolved Staff Comments

62

 

Item 5.

 

Operating and Financial Review and Prospects

62

 

 

A.

Operating Results

62

 

 

B.

Liquidity and Capital Resources

75

 

 

C.

Research and Development, Patents and Licenses

77

 

 

D.

Trend Information

77

 

 

E.

Off-balance Sheet Arrangements

77

 

 

F.

Tabular Disclosure of Contractual Obligations

77

 

 

G.

Safe Harbor

77

 

Item 6.

 

Directors, Senior Management and Employees

77

 

 

A.

Directors and Senior Management

77

 

 

B.

Compensation

78

 

 

C.

Board Practices

80

 

 

D.

Employees

82

 

 

E.

Share Ownership

83

 

Item 7.

 

Major Shareholders and Related Party Transactions

84

 

 

A.

Major Shareholders

84

 

 

B.

Related Party Transactions

84

 

 

C.

Interests of Experts and Counsel

87

 

Item 8.

 

Financial Information

87

 

 

A.

Consolidated Statements and Other Financial Information

87

 

 

B.

Significant Changes

87

 

Item 9.

 

The Offer and Listing

87

 

 

A.

Offer and Listing Details

87

 

 

B.

Plan of Distribution

87

 

 

C.

Markets

87

 

 

D.

Selling Shareholders

87

 

 

E.

Dilution

88

 

 

F.

Expenses of the Issue

88

 

Item 10.

 

Additional Information

88

 

 

A.

Share Capital

88

 

 

B.

Memorandum and Articles of Association

88

 

 

C.

Material Contracts

94

 

 

D.

Exchange Controls

94

 

 

E.

Taxation

95

 

 

F.

Dividends and Paying Agents

99

 

 

G.

Statement by Experts

99

 

 

H.

Documents on Display

99

iv


 

 

 

I.

Subsidiary Information

99

 

Item 11.

 

Quantitative and Qualitative Disclosures about Market Risk

99

 

Item 12.

 

Description of Securities Other than Equity Securities

100

 

 

A.

Debt Securities

100

 

 

B.

Warrants and Rights

101

 

 

C.

Other Securities

101

 

 

D.

American Depositary Shares

101

PART II

 

 

 

 

 

Item 13.

 

Defaults, Dividend Arrearages and Delinquencies

103

 

Item 14.

 

Material Modifications to the Rights of Security Holders and Use of Proceeds

103

 

Item 15.

 

Controls and Procedures

103

 

Item 16A.

 

Audit Committee Financial Expert

104

 

Item 16B.

 

Code of Ethics

104

 

Item 16C.

 

Principal Accountant Fees and Services

105

 

Item 16D.

 

Exemptions from the Listing Standards for Audit Committees

105

 

Item 16E.

 

Purchases of Equity Securities by the Issuer and Affiliated Purchasers

105

 

Item 16F.

 

Change in Registrant’s Certifying Accountant

105

 

Item 16G.

 

Corporate Governance

105

 

Item 16H.

 

Mine Safety Disclosure

106

PART III

 

 

 

107

 

Item 17.

 

Financial Statements

107

 

Item 18.

 

Financial Statements

107

 

Item 19.

 

Exhibits

107

 

 

v


 

PART I

Item 1.

Identity of Directors, Senior Management and Advisers

A.  Directors and Senior Management

Not applicable.  

B.  Advisers

Not applicable.  

C.  Auditors

Not applicable.  

Item 2.

Offer Statistics and Expected Timetable

A.  Offer Statistics

Not applicable.  

B.  Method and Expected Timetable

Not applicable.  

Item 3.

Key Information

A.  Selected Financial Data

The following tables set forth selected consolidated financial data for our company.  The selected consolidated statements of comprehensive income data and selected consolidated statements of cash flow data for the years ended December 31, 2017, 2018 and 2019 and the selected consolidated balance sheets data as of December 31, 2018 and 2019 have been derived from our audited U.S. GAAP consolidated financial statements, which are included in this annual report on Form 20-F beginning on page F-1.

You should read our selected financial data in conjunction with “Item 3. Key Information – D.  Risk Factors,” “Item 5. Operating and Financial Review and Prospects” and the Consolidated Financial Statements included elsewhere in this annual report on Form 20-F.  Historical results for any period are not necessarily indicative of results for any future period.

1


 

Selected Consolidated Statements of Comprehensive Income Data

The following table sets forth our selected consolidated results of operations for the periods presented, both in absolute terms and as a percentage of our total net revenues for the periods presented.

 

 

 

Year ended December 31,

 

 

 

2017

 

 

2018

 

 

2019

 

 

 

Amount

 

 

% of total

net revenues

 

 

Amount

 

 

% of total

net revenues

 

 

Amount

 

 

% of total

net revenues

 

 

 

(in thousands of U.S. dollars, except for share, per share data and percentages)

 

Net revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Product sales

 

 

95,573

 

 

 

97.3

%

 

 

176,098

 

 

 

88.5

%

 

 

302,099

 

 

 

91.7

%

Services

 

 

2,665

 

 

 

2.7

 

 

 

22,917

 

 

 

11.5

 

 

 

27,381

 

 

 

8.3

 

Total net revenues

 

 

98,238

 

 

 

100.0

 

 

 

199,015

 

 

 

100.0

 

 

 

329,480

 

 

 

100.0

 

Total cost of revenue

 

 

(69,124

)

 

 

(70.4

)

 

 

(140,153

)

 

 

(70.4

)

 

 

(257,431

)

 

 

(78.1

)

Gross profit

 

 

29,114

 

 

 

29.6

 

 

 

58,862

 

 

 

29.6

 

 

 

72,049

 

 

 

21.9

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fulfillment expenses

 

 

(6,217

)

 

 

(6.3

)

 

 

(13,097

)

 

 

(6.6

)

 

 

(16,957

)

 

 

(5.1

)

Sales and marketing expenses

 

 

(15,529

)

 

 

(15.8

)

 

 

(27,462

)

 

 

(13.8

)

 

 

(40,206

)

 

 

(12.2

)

General and administrative expenses

 

 

(4,004

)

 

 

(4.1

)

 

 

(9,069

)

 

 

(4.6

)

 

 

(8,497

)

 

 

(2.6

)

Research and development expenses

 

 

(485

)

 

 

(0.5

)

 

 

(1,669

)

 

 

(0.8

)

 

 

(1,808

)

 

 

(0.5

)

Other operating income

 

 

 

 

 

 

 

 

 

 

 

 

 

 

35

 

 

 

0.0

 

Total operating expenses

 

 

(26,235

)

 

 

(26.7

)

 

 

(51,297

)

 

 

(25.8

)

 

 

(67,433

)

 

 

(20.5

)

Operating income

 

 

2,879

 

 

 

2.9

 

 

 

7,565

 

 

 

3.8

 

 

 

4,616

 

 

 

1.4

 

Finance expenses, net

 

 

(145

)

 

 

(0.1

)

 

 

(926

)

 

 

(0.4

)

 

 

(2,513

)

 

 

(0.8

)

Foreign exchange gain/(loss), net

 

 

106

 

 

 

0.1

 

 

 

(306

)

 

 

(0.2

)

 

 

(393

)

 

 

(0.1

)

Other income, net

 

 

(36

)

 

 

0.0

 

 

 

234

 

 

 

0.1

 

 

 

475

 

 

 

0.1

 

Income before income tax expenses

 

 

2,804

 

 

 

2.9

 

 

 

6,567

 

 

 

3.3

 

 

 

2,185

 

 

 

0.7

 

Income taxes expenses

 

 

(80

)

 

 

(0.1

)

 

 

(417

)

 

 

(0.2

)

 

 

(250

)

 

 

(0.1

)

Net income

 

 

2,724

 

 

 

2.8

%

 

 

6,150

 

 

 

3.1

%

 

 

1,935

 

 

 

0.6

%

Net income attributable to ECMOHO Limited

 

 

2,825

 

 

 

2.9

%

 

 

6,124

 

 

 

3.1

%

 

 

2,297

 

 

 

0.7

%

Less: Accretion on Round A convertible redeemable

   preferred shares to redemption value

 

 

(1,559

)

 

 

 

 

 

 

(1,018

)

 

 

 

 

 

 

 

 

 

 

 

Less: Accretion on Round B convertible redeemable

   preferred shares to redemption value

 

 

(2,413

)

 

 

 

 

 

 

(1,575

)

 

 

 

 

 

 

 

 

 

 

 

Less: Accretion on Series A convertible redeemable

   preferred shares to redemption value

 

 

 

 

 

 

 

 

 

(445

)

 

 

 

 

 

 

(1,023

)

 

 

 

 

Less: Accretion to redemption value of redeemable

   non-controlling interests

 

 

 

 

 

 

 

 

 

(130

)

 

 

 

 

 

 

(312

)

 

 

 

 

Less: Extinguishment of convertible redeemable

   preferred shares

 

 

 

 

 

 

 

 

 

(24,764

)

 

 

 

 

 

 

 

 

 

 

 

 

Net (loss)/income attributable to ECMOHO

   Limited’s ordinary shareholders

 

 

(1,147

)

 

 

 

 

 

 

(21,808

)

 

 

 

 

 

 

962

 

 

 

 

 

 

 

 

Year ended December 31,

 

 

 

2017

 

 

2018

 

 

2019

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(in thousands of U.S. dollars, except for share and per share data)

 

Net (loss)/income attributable to ECMOHO Limited’s ordinary shareholders

 

 

(1,147

)

 

 

(21,808

)

 

 

962

 

Net (loss)/earnings per share attributable to ECMOHO Limited’s

   ordinary shareholders

 

 

 

 

 

 

 

 

 

 

 

 

—basic

 

 

(0.01

)

 

 

(0.26

)

 

 

0.01

 

—diluted

 

 

(0.01

)

 

 

(0.26

)

 

 

0.01

 

Weighted average number of Ordinary Shares

 

 

 

 

 

 

 

 

 

 

 

 

—basic

 

 

81,162,400

 

 

 

84,970,000

 

 

 

98,104,216

 

—diluted

 

 

81,162,400

 

 

 

84,970,000

 

 

 

115,644,864

 

 

2


 

Selected Consolidated Cash Flow Data

The following table presents our selected consolidated cash flow data for the periods indicated.

 

 

 

Year ended December 31,

 

 

 

2017

 

 

2018

 

 

2019

 

 

 

(in thousands of U.S. dollars)

 

Net cash used in operating activities

 

 

(2,444

)

 

 

(40,756

)

 

 

(14,189

)

Net cash used in investing activities

 

 

(508

)

 

 

(1,748

)

 

 

(813

)

Net cash provided by financing activities

 

 

1,583

 

 

 

44,036

 

 

 

54,337

 

Cash, cash equivalents and restricted cash at beginning of the period

 

 

12,079

 

 

 

10,689

 

 

 

12,965

 

Cash, cash equivalents and restricted cash at end of the period

 

 

10,689

 

 

 

12,965

 

 

 

51,099

 

 

Selected Consolidated Balance Sheet Data

The following table presents our selected consolidated balance sheet data for the periods indicated.

 

 

 

As of December 31,

 

 

 

2018

 

 

2019

 

 

 

(in thousands of U.S. dollars)

 

Current assets:

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

 

10,336

 

 

 

49,099

 

Accounts receivable, net

 

 

33,840

 

 

 

49,829

 

Inventories, net

 

 

53,683

 

 

 

49,895

 

Total current assets

 

 

111,747

 

 

 

172,189

 

Total assets

 

 

117,772

 

 

 

178,460

 

Total current liabilities

 

 

74,829

 

 

 

93,562

 

Total liabilities

 

 

75,148

 

 

 

93,770

 

Total mezzanine equity

 

 

74,847

 

 

 

 

Total shareholders’ (deficit)/equity

 

 

(32,223

)

 

 

84,690

 

 

Non-GAAP Measures

We use the following non-GAAP performance indicators to monitor financial performance: adjusted operating income and adjusted net income.  

We use adjusted operating income and adjusted net income, each a non-GAAP financial measure, in evaluating our operating results and for financial and operational decision-making purposes.  Adjusted operating income represents operating income excluding share-based compensation expenses.  Adjusted net income represents net income excluding share-based compensation expenses.  These adjustments have no impact on income tax.  

We believe that adjusted operating income and adjusted net income help identify underlying trends in our business that could otherwise be distorted by the effect of certain expenses that we include in operating income and net income.  We also believe that adjusted operating income and adjusted net income provide useful information about our operating results, enhance the overall understanding of our past performance and future prospects and allow for greater visibility with respect to key metrics used by our management in its financial and operational decision-making.  

 

 

 

Year ended December 31,

 

 

 

2017

 

 

2018

 

 

2019

 

 

 

(unaudited)

 

 

 

(in thousands of U.S. dollars)

 

Adjusted operating income

 

 

2,879

 

 

 

7,922

 

 

 

6,191

 

Adjusted net income

 

 

2,724

 

 

 

6,507

 

 

 

3,510

 

 

3


 

 The non-GAAP financial measures are not defined under U.S. GAAP and are not presented in accordance with U.S. GAAP.  They should not be considered in isolation or construed as alternatives to net loss or any other measure of performance or as an indicator of our operating performance.  Investors are encouraged to review the historical non-GAAP financial measures in light of the most directly comparable GAAP measures, as shown below.  The non-GAAP financial measures presented here may not be comparable to similarly titled measures presented by other companies.  Other companies may calculate similarly titled measures differently, limiting their usefulness as comparative measures to our data.  We encourage investors and others to review our financial information in its entirety and not rely on a single financial measure.

The table sets forth a reconciliation of our adjusted operating income and adjusted net income in the years presented to the most directly comparable financial measures calculated and presented in accordance with U.S. GAAP, which are operating income and net income:

 

 

 

Year ended December 31,

 

 

 

2017

 

 

2018

 

 

2019

 

 

 

(unaudited)

 

 

 

(in thousands of US$)

 

Operating income

 

 

2,879

 

 

 

7,565

 

 

 

4,616

 

Add: share-based compensation expenses

 

 

 

 

 

357

 

 

 

1,575

 

Adjusted operating income

 

 

2,879

 

 

 

7,922

 

 

 

6,191

 

Net income

 

 

2,724

 

 

 

6,150

 

 

 

1,935

 

Add: share-based compensation expenses

 

 

 

 

 

357

 

 

 

1,575

 

Adjusted net income

 

 

2,724

 

 

 

6,507

 

 

 

3,510

 

 

Exchange Rate Information

Our reporting currency is the U.S. dollar.  This annual report on Form 20-F contains translations of certain foreign currency amounts into U.S. dollars for the convenience of the reader.  Unless otherwise stated, all translations of Renminbi into U.S. dollars as at December 31, 2019 were made at RMB6.9762 to US$1.00, the exchange rate set by the People’s Bank of China on December 31, 2019.  

B.  Capitalization and Indebtedness

Not applicable.  

C.  Reasons for the Offer and Use of Proceeds

Not applicable.  

D.  Risk Factors

This section describes the risks that we currently believe may materially affect our business, financial condition and results of operations.  The factors below should be considered in connection with any forward-looking statements in this annual report on Form 20-F.  Although we will make reasonable efforts to mitigate or minimize these risks, one or more of a combination of these risks could materially and adversely impact our business, revenues, sales, net assets, financial condition, results of operations, liquidity, capital resources and prospects.  Additional risks and uncertainties that we are unaware of, or that we currently believe to be immaterial, may also become important factors that affect us.  

Risks Related to Our Business and Industry

Our company’s business, financial position, liquidity and results of operations have been, and are likely to continue to be, materially and adversely affected by the COVID-19 pandemic.

The outbreak of a novel strain of coronavirus that causes the disease now known as COVID-19 was first identified in Wuhan, China, in December 2019.  Since late-January 2020, the Chinese government has imposed a series of strict and protracted containment measures, including lockdowns across the Hubei province and in many other parts of the country.  Despite these efforts, the disease has continued to spread globally and, in March 2020, the World Health Organization declared the COVID-19 outbreak a pandemic and recommended the implementation of containment and mitigation measures worldwide.  

4


 

Governments across the globe have responded to contain the spread and reduce the risk of exposure to infection through international travel restrictions, lockdowns of cities and wider regions, business closures and strict social distancing measures.  In China, as of June 2020, such measures appear to have successfully contained the spread of the virus, with restrictions now being lifted across the country and businesses resuming operations.  While other parts of the world are showing increased control over the spread of the virus, substantial uncertainty surrounding the duration of existing restrictions remains.  

The COVID-19 pandemic and the associated efforts to contain the spread of the disease have caused unprecedented disruptions to the global economy, impacted business operations across many industries and geographies and created significant volatility and uncertainty, all of which have had a material adverse effect on our results of operations, cash flows and overall financial position.  For example, during the implementation of lockdown measures in China, our operations were affected as many of our employees were unable to return to work following the Lunar New Year public holiday.  We only resumed full operations and achieved full staffing levels in mid-March 2020.  In addition, there has been a significant increase in international freight costs in light of the COVID-19 pandemic and such increases have had an impact on our fulfillment expenses.  Moreover, during the first quarter of calendar year 2020 some of our third-party business partners in China, in particular domestic logistics and transport services providers, experienced temporary shut-downs or worker absenteeism and were unable to meet their obligations to us.  This has had an adverse impact on our ability to promptly provide our customers with the products they purchased, which, in turn, has affected our financial performance.  Furthermore, we have experienced and expect to continue to experience disruptions to our supply chains if our brand partners, especially international brand partners based in the United States and Europe, are severely impacted by the COVID-19 pandemic or government-imposed containment measures.  If we are unable to procure products from our major brand partners when required, our operations, financial condition and results of operations may be adversely impacted in the foreseeable future and such impacts may be material.  If we choose to increase the levels of inventory we hold, when possible, to minimize the risk of experiencing product shortages, we may be exposed to increased inventory risk due to accumulated excess inventory, which may have an adverse impact on our results of operations and financial condition.  See “– If we fail to effectively manage our inventory, our reputation, results of operations and financial condition may be materially and adversely affected.”  

We are currently unable to predict with certainty the duration and severity of the COVID-19 pandemic, and its ultimate impact on our business, financial condition, liquidity and results of operations, as these depend on rapidly evolving and uncertain developments and factors that are beyond our control.  Such factors include the speed of the contagion, the ultimate effect of the various containment measures imposed, the development of effective medical treatment solutions, financial and market reactions to the foregoing and general consumer sentiment.  On March 30, 2020, we withdrew the guidance for the fiscal year 2020 we previously provided to the market on November 25, 2019.  COVID-19-related disruptions have had an adverse impact on our results of operations in the first quarter of fiscal year 2020 and may continue to have an adverse impact on our results of operations in the foreseeable future.  While our product revenue had a slight year-over-year increase in the first quarter of fiscal year 2020, the extent of such increase was significantly less than in previous periods in 2019.  

Each of the following risk factors should be read in the context of the foregoing uncertain trends, events and developments as they affect us, whether or not we make specific reference to the COVID-19 pandemic, given the potentially materially adverse effect of the pandemic on our business.  

If the e-commerce market or the health and wellness industry in China does not grow, or grows more slowly than we expect, the demand for our products and solutions could be materially and adversely affected.  

Continued demand for our products and solutions depends on whether the e-commerce market and the health and wellness industry in China will continue to grow.  The long-term viability and prospects of the online retail business in China remain relatively untested.  Our future results of operations will depend on numerous factors affecting the development of the e-commerce industry in China, which may be beyond our control, including:

 

the penetration rates of Internet services, personal computers and mobile connectivity;

 

the trust and confidence level of e-commerce consumers in China, as well as changes in consumers’ demographics and preferences;

 

whether alternative retail channels or business models that better address the needs and preferences of consumers emerge in China; and

 

the development of fulfillment, payment and other ancillary services associated with online purchasing.  

5


 

Additionally, our future results of operations will depend on numerous factors affecting the development of the health and wellness industry in China, including:

 

changes in the spending power of Chinese consumers;

 

the prevalence of health issues and chronic diseases among Chinese consumers;

 

the impact of the COVID-19 pandemic; and

 

the ongoing health and wellness market deficiencies and consumer mistrust of incumbent health and wellness product and service providers.  

If consumer utilization of e-commerce channels in China does not grow, or grows more slowly than we expect, demand for our products and services would be adversely affected, our revenues would be negatively impacted and our ability to pursue our growth strategies would be compromised.  

We may not be able to effectively manage the expansion of our business or optimally implement our business strategies.  

To realize our mission of providing comprehensive health and wellness solutions to our consumers, we have expanded our business, and plan to continue expanding our business.  We have continued to widen our relationships with existing brand partners to include more offerings, procuring new brand partners with different products, improving our logistic and fulfillment capabilities to support our expanded offering and growing through acquisitions of complementary businesses.  This expansion has contributed to a heightened level of complexity of our business, in terms of both the type and scale of our operations, which may place a significant strain on our operational, financial and technical resources and increase demands on our management and employees.  We cannot assure you that we will be able to continue to manage our expansion successfully, and failure to do so may materially and adversely affect our business, financial condition and results of operations.

We are also continuously executing a number of growth initiatives, strategies and operating plans designed to enhance our business, including launching various new services, such as offering strategy, marketing, products, digitalization, consumer insights, supply chain and SaaS solutions to assist our business partners deliver customized products and services to consumers.  The anticipated benefits from these efforts are based on assumptions that may prove to be inaccurate.  Moreover, we may not be able to successfully complete these growth initiatives, strategies and operating plans and realize all of the benefits that we expect to achieve, such as expanding our product and service offerings, or it may be more costly to do so than we anticipate.  In addition, profitability, if any, in the new areas that we expand into may be lower than in our existing business, and we may not be successful enough in these newer areas to recoup our investments in them.  If any of these circumstances were to occur, our business, financial condition and results of operations may be materially and adversely affected.

If we fail to anticipate evolving consumer preferences for health and wellness products and/or fail to cater effectively to consumer demands, our ability to attract and retain customers may be materially and adversely affected.  

Our ability to attract and retain our consumers depends largely on our ability to offer health and wellness products that they find attractive.  The success of our business relies on our ability to anticipate changes in consumer preferences, demographic shifts in our consumer base and broader evolving trends in the industry, and to respond to such changes in a timely and cost-effective manner.  If we rely on misleading industry intelligence or consistently misinterpret the consumer data we collect, we may fail to cater to the preferences of our consumers or fail to continue to retain our consumers.  Consequently, our business, financial condition and results of operations may be materially and adversely affected.  

Our success depends on our ability to maintain relationships with existing brand partners and to develop relationships with new brand partners.  

Our success is closely tied to our relationships with our existing brand partners, who supply the products that we sell through various platforms.  We also identify and target potential new brand partners whose products complement our established inventory or that represent new opportunities for us to meet consumer demand.  Many of our brand partners deal with us on a non-exclusive basis, and a number of our brand partner relationships are relatively recent, having been established over the last three to four years.  Because of these factors, we face, and expect to continue to face, constant and intense competition for the business of our brand partners from other Chinese distributors in the health and wellness market.  Our relationships with our brand partners may weaken and we may lose our market share if our competitors offer their services to them.  The e-commerce market is characterized by rapid technological developments and frequent changes in regulation, specifications and other requirements for how our brand partners

6


 

should sell their merchandise through particular channels.  This could negatively affect our ability to retain existing brand partners and attract new brand partners, our future financial and operating results, and our potential for growth.  If we are unable to maintain these relationships or enter into advantageous new arrangements through our targeted approaches to specific potential brand partners, our ability to attract new brand partners may decrease.  

In addition, a small number of brand partners contribute a significant portion of our total revenues.  For example, in 2019, the single largest brand partner in terms of the revenue contribution of its products accounted for 15.9% of our total net revenues.  In the same period, the ten largest brand partners in terms of the revenue contribution of their products, in the aggregate, accounted for 71.9% of our total net revenues.  Moreover, four of the ten largest brand partners in terms of revenue contribution in 2019 are under the common control of a global food and beverage company.  While our relationships with these four brand partners were developed independently and they are each managed by a dedicated operations team, we cannot assure you that failure to maintain a satisfactory relationship with one of these brand partners in the future will not adversely affect our reputation with the other brand partners under common control.  Furthermore, the loss of one or more of our largest brand partners may result in a material and adverse effect on our financial condition and results of operation.  

In such a rapidly changing market, the needs of our brand partners are also constantly evolving to keep pace with consumer demands.  If we fail to respond to the evolving needs of our brand partners, our continuing relationships with existing brand partners, our reputation and the demand for our services may be adversely affected.  This may have a material and adverse impact on our business, financial position and results of operations.  

We may be unable to compete effectively against stronger and better-resourced e-commerce companies, offline competitors or new entrants to the health and wellness market, and we may lose market share as a result.  

The health and wellness market is intensely competitive in China.  We may not be able to command the same price for our services and solutions or we may face a decrease in our market share, which may affect our future financial and operating results, and our ability to grow our business.  In addition, competition may intensify if our competitors increase their resources and product range and if established companies in other market segments or geographic markets expand into our market segments or geographic markets.  If we cannot compete successfully, our business, financial condition and operating results could be materially and adversely affected.  

We face competition in a number of areas.  We compete to attract, engage and retain consumers based on the variety, value and personalization of the products and services we offer, and overall user experience and convenience.  We compete to attract and retain brand partners based on our scale of operation and the capability of engaging consumers, the sales and growth solutions offered to brand partners as a result of our consumer and industry analysis and the efficiency of our logistics infrastructure in facilitating the delivery of our brand partners’ products to consumers.  We also compete for experienced and effective talent and personnel, who serve critical functions in the development of our products and our ecosystem.  

Our ability to compete effectively depends on a number of factors, some of which may be beyond our control, including brand partners choosing to develop in-house e-commerce platforms or infrastructure, offline competitors with a broader product range, e-commerce channels deciding to directly compete with us and consolidations within the Chinese health and wellness industry that may result in stronger competitors.  

If we are not able to compete effectively, we may lose market share and face a decrease in consumer engagement and sales, which could materially and adversely affect our business, financial condition and results of operations as well as our reputation.  

Some of our current or future competitors may have, or may develop, greater brand recognition, better supplier relationships, larger customer bases or greater financial, technical or marketing resources than us.  Any smaller companies or potential new entrants to the Chinese health and wellness market may be acquired by, receive investment from or enter into strategic relationships with well-established and well-financed companies or investors which may enhance their competitive positions.  Some of our competitors may be able to secure more favorable terms from suppliers, devote greater resources to marketing and promotional campaigns, adopt more aggressive pricing or inventory policies and devote substantially more resources to their technology and infrastructure systems than us.  We cannot be certain that we will be able to compete successfully against current or future competitors, and competitive pressures may have a material adverse effect on our business, financial condition and results of operations.  

7


 

We may need additional capital but may not be able to obtain it on acceptable terms, or at all.  

In order for us to continue to grow, we need significant amount of working capital to fund our inventory.  In addition, we may require additional capital in case of operating losses as well as any investments or acquisitions we may decide to pursue.  For example, net cash used in operating activities reached US$2.4 million in 2017, US$40.8 million in 2018 and US$14.2 million in 2019.  Such amount may continue to increase due to the expansion of our business and the corresponding increase in inventory.  See “—If we fail to effectively manage our inventory, our reputation, results of operations and financial condition may be materially and adversely affected.”  

If our cash resources are insufficient to satisfy our cash requirements, we may seek to issue additional equity or debt securities, including convertible notes, or obtain new or expanded credit facilities.  

Our ability to obtain external financing in the future is subject to a variety of uncertainties, including our future financial condition, results of operations, cash flows, share price performance, liquidity of international capital and lending markets and the PRC governmental regulations over foreign investment and the health and wellness industry.  Any debt financing, if available, may involve restrictive covenants and could restrict our operational flexibility and reduce our profitability.  In addition, incurring indebtedness would subject us to increased debt service obligations.  There can be no assurance that financing would be available in a timely manner or in amounts or on terms acceptable to us, or at all, particularly in light of the ongoing COVID-19 pandemic.  Any such failure could severely restrict our liquidity as well as have a material adverse effect on our business, financial condition and results of operations.  Moreover, any issuance of equity or equity-linked securities could result in significant dilution to the interests of our existing shareholders.  

If we are unable to obtain increased financing, any resultant cash flow shortage may materially affect our ability to procure products from our brand partners and meet our financial obligations, which may damage our reputation and brand partner relationships.  Such damage to our reputation or relationships would have a material and adverse effect on our business, financial condition and results of operations.  

We depend on key management as well as experienced and capable personnel generally, and any failure to attract, motivate or retain our staff could hinder our ability to maintain and grow our business.  

Our future success depends substantially upon the continued service of our key executives and other key employees, particularly our co-founders, Ms. Wang and Mr. Zeng.  If we lose the services of any member of management or key personnel, we may not be able to locate suitable or qualified replacements, and we may incur additional expenses to recruit and train new staff, which could severely disrupt our business and growth.  

The size and scope of our ecosystem also require us to hire and retain a wide range of experienced and capable personnel who can adapt to a dynamic, competitive and challenging business environment.  We will need to continue to attract and retain experienced and capable personnel at all levels as we expand our business and operations.  Competition for such talent is intense, and the availability of suitable and qualified candidates in the PRC is limited.  This high level of competition could compel us to offer higher compensation and other benefits to attract and retain the right candidate.  Even if we were to offer higher compensation and other benefits, there is no assurance that these individuals will choose to join us or continue to work for us.  Any failure to attract or retain key management and personnel could severely disrupt our business and growth.  

We are subject to evolving regulatory requirements, non-compliance with which, or changes in which, may materially and adversely affect our business and prospects.  

As a provider of an e-commerce platform for health and wellness products, we are subject to legal and regulatory requirements applicable to multiple industries in the PRC.  These industries primarily include the Internet and health and wellness industries.  We have been subject to penalties by PRC regulatory authorities in the past due to our failure to comply with their requirements, including those in relation to pricing.  

The regulations to which we are subject in this area are new and evolving.  As a result, the interpretation of these laws and their enforcement is often uncertain.  Predicting the application of these laws can be difficult, and unexpected outcomes in the interpretation and enforcement of the applicable regulations may have an adverse impact on our business and operations.  Additionally, any future changes in regulation may render our business non-compliant or require changes to our business practices or licensing arrangements to ensure compliance.  These changes may involve significant costs, which in turn may adversely affect our business and prospects.  

8


 

Various regulatory authorities of the PRC government regulate value-added telecommunications services, food business, pharmaceutical operations and services, online drug and medical device operations and online trading and e-commerce.  Violations of regulations may lead to the imposition of significant penalties which may affect our business, operations, reputation and financial prospects.  In respect of the healthcare industry, in particular, any violation of the relevant laws, rules and regulations may result in harsh penalties and, under certain circumstances, lead to criminal prosecution.  

As we introduce new products and services to our customers, we may be required to comply with additional laws and regulations that are yet to be determined.  To comply with such additional laws and regulations, we may be required to obtain necessary certificates, licenses or permits, as well as expend additional resources to monitor regulatory and policy developments.  Our failure to adequately comply with such additional laws and regulations may delay, or possibly prevent, some of our products or services from being offered to users, which may have a material adverse effect on our business, financial condition and results of operations.  

Additionally, the PRC has enacted laws and regulations governing Internet access and the distribution of products, services, news, information, audio-video programs and other content through the Internet.  The PRC government has prohibited the distribution of information through the Internet that it deems to be in violation of PRC laws and regulations.  If any of the information disseminated through our marketplaces and websites were deemed by the PRC government to violate any content restrictions, we would not be able to continue to display such content and could become subject to penalties, including confiscation of income, fines, suspension of business and revocation of required licenses, which could materially and adversely affect our business, financial condition and results of operations.  

We may be subject to claims under consumer protection laws, including health and safety claims and product liability claims, if property or people are harmed by the products sold on our platform.  

Due to several high-profile consumer complaint incidents that have occurred in China in recent years and attendant media and advocacy group attention, there has been increased governmental focus in the PRC on consumer protection.  Operators of e-commerce marketplaces and platforms are subject to certain provisions of consumer protection laws even where such operator is not the seller of the product or service purchased by the consumer.  In addition, if we do not take appropriate remedial action against sellers or service providers for actions they engage in that we know, or should have known, would infringe upon the rights and interests of consumers, we may be held jointly and severally liable with the seller or service provider for such infringement.  

Moreover, applicable PRC consumer protection laws hold that trading platforms will be held liable for failing to meet any undertakings such platforms make to consumers with regard to products listed on their websites.  Furthermore, we are required to report to the State Administration for Market Regulation, or the SAMR, or its local branches any violation of applicable laws, regulations or SAMR rules by sellers or service providers, such as sales of goods without proper license or authorization, and to take appropriate remedial measures, including ceasing to provide services to such sellers or service providers.  If claims are brought against us under any of these laws, we could be subject to damages and reputational damage as well as action by regulators, which could have a material adverse effect on our business, financial condition and results of operations.  

We do not maintain product liability insurance for products and services transacted on our platform, and any other insurance policies may not cover us, adequately or at all, for any liability we may incur.  Even unsuccessful claims could result in the expenditure of funds and management time and resources and could materially reduce our net income and profitability.  

If counterfeit products are distributed by us, our reputation and financial results could be materially and adversely affected.  

We source health and wellness products from reputable brand partners.  However, their measures of safeguarding against counterfeit products may not be adequate.  In addition, we engage third-party warehousing and logistics service providers and third-party couriers to conduct product fulfillment, and we may not be able to detect and prevent all potential instances of misconduct or negligence committed by them or by our employees involved in the fulfillment process.  If counterfeit products are distributed by us, we may suffer reputational damage.  If we are deemed to have participated or assisted in infringement activities associated with counterfeit products, we may be subject to sanctions under applicable laws and regulations, which may include injunctions to cease infringing activities, rectification, compensation, administrative penalties and even criminal liability, depending on the gravity of such misconduct.  Furthermore, counterfeit products may be defective or inferior in quality as compared to authentic products and may pose safety risks to consumers.  If consumers are injured by counterfeit products distributed by us, we may be subject to lawsuits, severe administrative penalties and criminal liability.  See “— We may be subject to claims under consumer protection laws, including health and safety claims and product liability claims, if property or people are harmed by the products sold on our platform.”

9


 

If we fail to effectively manage our inventory, our reputation, results of operations and financial condition may be materially and adversely affected.  

In order to operate our business effectively and meet our consumers’ demands and expectations, we must maintain a certain level of inventory to ensure prompt deliveries when required.  We determine the levels of inventory we hold on the basis of our experience, assessment of consumer demand in a certain period of time and the lead time required to have the inventory in our warehouse.  

We forecast consumer demand by relying on a number of factors, including:

 

the purchase history of consumers;

 

performance metrics from our customers, especially third-party e-commerce channels;

 

market intelligence, including intelligence on product innovation and introduction;

 

changes in consumer spending patterns; and

 

event-driven factors, such as cyclical demand for preventative products.  

We use such metrics to forecast consumer demand more accurately and thereby optimize our inventory management in terms of product portfolio and volume.  

However, forecasts are inherently uncertain, and demand for products can change significantly between the inventory order date and the projected sale date.  In addition, the acquisition of certain types of inventory may require significant lead time and prepayment and they may not be returnable.  Moreover, we normally do not have the right to return unsold items to our suppliers, save for in a limited range of circumstances, such as in the case of quality defects, as set out in our supply agreements.  

If we overestimate demand for our products, we may be exposed to increased inventory risks due to accumulated excess inventory.  Prolonged periods of excess inventory may lead to pressures on our warehousing system and fulfillment capabilities, increases in inventory holding costs and the risk of inventory obsolescence.  In addition, if we fail to manage our inventory effectively we may experience a decline in inventory values and significant inventory write-downs or write-offs due to product expiration.  Moreover, we may be required to lower sale prices in order to reduce inventory levels, which may lead to lower gross margins.  Conversely, if we underestimate demand for our products, or if our brand partners fail to supply quality products in a timely manner, we may experience inventory shortages, which might result in lost revenues and diminished consumer satisfaction, which could harm our business and reputation.  

Any of the above may materially and adversely affect our results of operations and financial condition.  As we plan to continue to expand our product offerings, we may continue to face challenges in effectively managing our inventory.  

Any interruption in our product inventory or fulfillment operations may have an adverse impact on our business.  

Our ability to process and fulfill orders accurately depends on the efficient operation of our fulfillment and logistics network and our ability to accurately take orders through the various platforms on which we distribute products and our ability to fulfill such orders.  Our fulfillment and logistics infrastructure, including our warehousing facilities and transportation services, may be vulnerable to damage or interruption caused by fire, flood, power outage, telecommunications failure, break-ins, earthquake, human error, transportation disruptions and other events.  If any of our fulfillment and logistics infrastructures were to be rendered incapable of operations, then we may be unable to fulfill any orders.  We do not carry business interruption insurance, and the occurrence of any of the foregoing risks could have a material adverse effect on our business, prospects, financial condition and results of operations.  

10


 

As a result of the COVID-19 pandemic, from late January 2020 until late March 2020, our third-party couriers have been unable to consistently fulfill online orders to our customers in a timely manner.  We also experienced delays in getting products from our suppliers and incurred higher shipping costs in inbound and outbound shipments, all of which have had an adverse impact on our business.  See “Risks Related to Our Business and Industry —Our company’s business, financial position, liquidity and results of operations have been, and are likely to continue to be, materially and adversely affected by the COVID-19 pandemic.”  On March 31, 2020, we furnished to the SEC our preliminary unaudited selected financial results for the year ended December 31, 2019 and the fourth quarter ended December 31, 2019.  We withdrew the guidance for the fiscal year 2020 we previously provided to the market on November 25, 2019, and estimated that the disruptions caused by the COVID-19 pandemic will have an adverse impact on our financial results in the first quarter of fiscal year 2020.  

Our results of operations are subject to fluctuations due to the seasonality of our business and other events.  

We have experienced and expect to continue to experience seasonal fluctuations in our financial performance.  These seasonal patterns have caused and will continue to cause fluctuations in our operating results.  Historically, we have recorded stronger performance in the fourth quarter, primarily because consumers increase their purchases during e-commerce festivals in China, such as the periods around Singles Day (which is an online sales promotion event that falls on November 11 of each year) and Double Twelves (which is another online sales promotion event that falls on December 12 of each year).  In addition, we generally experience a lower level of sales activity in the first quarter due to the Lunar New Year public holiday, during which the volumes of online purchases and logistical operations drop significantly due to vacations and business closures.  

In anticipation of increased sales activity prior to shopping festivals, we increase our inventory levels and incur additional expenses such as procuring additional working capital and increasing the size of our workforce on a temporary basis.  If our seasonal sales patterns become more pronounced in the future, this may strain our personnel, customer service operations, fulfillment operations and shipment activities and may cause a shortfall in revenues compared to expenses in a given period.  As a result, our financial results may be materially and adversely affected.  In addition to increasing our own inventory levels, we also rely on our brand partners to increase their inventory levels to match projected seasonal demand.  If we and our brand partners do not increase inventory levels for popular products in sufficient amounts or if we are unable to restock popular products from our brand partners in a timely manner, we may fail to fulfill customer demand.  This may harm our reputation and damage the trust that consumers have in our business, which is a key part of our business model.  As a result, we may experience a material and adverse effect on our financial conditions and results of operations.  

Our dependence on a small number of e-commerce channels could materially and adversely affect our business or results of operations.  

We depend on a small number of e-commerce channels to sell products to consumers.  As a result, we derive a substantial portion of our revenue from activity on these channels.  For example, in 2017, 2018 and 2019, sales on Alibaba’s Tmall platform contributed approximately 52%, 34% and 21% of our total net revenues, respectively.  

If the sales on e-commerce channels in China do not grow or grow more slowly than we expect, demand for our products would be adversely affected, our revenues would be negatively impacted, and our ability to pursue our growth strategy would be compromised.  Moreover, if the e-commerce channels that we rely on are not successful in attracting consumers or their reputations are adversely affected for any reason, we may experience reduced demand for our products.  

Our business may be harmed if the e-commerce channels we rely upon decide to make significant changes to their respective business models, policies, systems or plans.  Currently, large e-commerce channels influence to a certain extent terms that affect our profitability and financial condition, including the return policies we offer and the sharing of marketing expenses and payables or receivables between the e-commerce channels and us.  We may not be able to negotiate such policies or agreements on terms most favorable to us in the future.  

In addition, we cannot guarantee that we will be able to access such e-commerce channels in the long term.  If we fail to maintain our relationships with such channels, they may decide at any time and for any reason to significantly limit our ability to integrate our solutions with their platforms.  Given that online retail in China is dominated by a few large e-commerce channels, we may not be able to adapt or build new relationships on terms favorable to us with any other emerging channels.  

Any of the above may adversely affect our revenue, financial condition and results of operations.  

11


 

We use third-party couriers to deliver orders.  If these couriers fail to provide reliable delivery services on commercially acceptable terms, our business and reputation may be materially and adversely affected.  

We maintain cooperation arrangements with third-party couriers to deliver our products to our customers.  We rely on a select number of third-party delivery services, for example Cainiao, the primary deliverer of cross-border sales through the Tmall platform.  In 2017, 2018 and 2019, Cainiao was paid approximately 33%, 39% and 32%, respectively, of our third-party delivery fees, and the goods delivered by Cainiao accounted for approximately 20%, 19% and 11%, respectively, of our revenue in the same periods.  As such, we may face adverse consequences if there are interruptions to, or failures in, these third parties’ delivery services.  Such interruptions or failures could prevent the timely or proper delivery of our products to consumers, eroding consumer confidence and reducing repeat orders.  These interruptions may be due to events that are beyond our control or the control of these delivery companies, such as inclement weather, natural disasters, transportation disruptions, including as a result of public health emergencies, or labor unrest.  While we may claim compensation for disruptions under our standard agreements with third-party delivery services, such claims are subject to a complicated review process and we cannot provide assurance that any compensation payments would make up for the lost consumer goodwill.  Also, any significant increase in delivery fees charged by these third parties may result in a significant increase in our online distribution expenses.  If we fail to find other reliable third-party couriers on commercially acceptable terms, our profitability may be harmed.  

In addition, if our third-party couriers fail to comply with applicable PRC rules and regulations, our delivery services may be materially and adversely affected.  We may not be able to find alternative delivery companies to provide delivery services in a timely and reliable manner, or at all.  Delivery of our products could also be affected or interrupted by the merger, acquisition, insolvency or government shut-down of the delivery companies we engage to make deliveries.  If our products are not delivered in proper condition or on a timely basis, our reputation could suffer and we may experience a material adverse effect on our financial condition and results of operations.  

We have adopted favorable return policies with certain customers and a higher-than-expected rate of returns could materially and adversely affect our results of operations and financial condition.  

In certain instances, we sell the products of our brand partners to third-party e-commerce platforms, which in turn sell those products to consumers.  We have adopted contractual product return policies with certain of these third-party e-commerce platforms.  These return policies are generally favorable to the third-party e-commerce platforms, and provide in certain cases that products may be returned in unlimited quantities and without cause, albeit subject to a limited return period.  If we experience a higher-than-expected rate of returns from these third-party e-commerce platforms, this may result in wastage, overstock and monetary loss, which may materially and adversely affect our financial condition and results of operations.  

In addition, we may from time to time be required to amend our existing return policies or implement new return policies pursuant to changes in applicable laws and regulations, which may lead to a larger group of customers being able to take advantage of our return policies, potentially resulting in increased costs.  If our return policy is misused, we may experience significantly increased costs, which may materially and adversely affect our financial condition and results of operations.  If we seek to set limits on such return policies in order to reduce costs, the reaction from our customers may be negative, which may materially and adversely affect our reputation and results of operations.

Any damage to our reputation, including negative publicity against us or our brand partners, may materially and adversely affect our business operations and prospects.  

We have cultivated a reputation of trustworthiness and excellence among our brand partners and our consumers.  We believe that our reputation is a key reason for consumers to make purchases, and for brand partners who choose us to distribute their products and provide them with market insights and strategies.  As a result, we depend on our reputation for the continued success of our business operations and for generating revenue.  However, we cannot be certain that we will be able to maintain our positive reputation in the future.  Our reputation may be materially and adversely affected by a number of factors, many of which are beyond our control, including:

 

negative developments or events relating to our proprietary products or the products of our brand partners which are sold on our platform, or which we provide to third-party e-commerce platforms, including with respect to their efficacy or side effects;

 

lawsuits and regulatory investigations against us or otherwise relating to products associated with us or our industry in general;

12


 

 

improper or illegal conduct by our employees or brand partners that is not authorized by us; and

 

adverse publicity associated with us, our products or our industry, whether founded or unfounded.  

Any damage to our reputation as a result of these or other factors may cause our products to be perceived unfavorably by consumers, existing or potential brand partners or the Chinese health and wellness market in general, which may materially and adversely affect our reputation, results of operations and financial position.  

If our brand partners develop sophisticated knowledge of the Chinese health and wellness market, or increase their in-house e-commerce capabilities, demand for our solutions and services may be materially and adversely affected.  

Our brand partners value our solutions and services because of our ability to assist with marketing their products to the Chinese health and wellness market.  This ability is founded on our extensive experience in, and local knowledge of, the Chinese health and wellness market, and our technical proficiency in connecting our brand partners to end-consumers in China.  If our brand partners significantly develop their local expertise and market knowledge, or choose to sell their products directly through third-party e-commerce platforms, our solutions and services may become less important or attractive to our brand partners, and demand for our solutions and services may decline.  This may cause a decrease in customer retention and revenue, materially and adversely affecting our business, financial condition and results of operations.  

We may be liable for any false or misleading statements or representations made by the healthcare experts on our platforms.  

We may be held liable for any false or misleading statements or representations made by the healthcare experts on our platforms.  When these healthcare experts publish health management plans, respond to consumer inquiries and make health and wellness recommendations, they may make false or misleading statements or representations in relation to the suitability, effectiveness, use or potential side effects of such plans or products.  These healthcare experts may also be negligent in their observations or fail to specify that their recommendation is general in nature and may not apply to the circumstances of particular consumers.  We may not always have appropriate disclaimers in place on our platforms.  

We may be subject to legal proceedings and claims from time to time where these statements or representations are found to result in harm to our customers.  These claims and legal proceedings may be expensive and time consuming to investigate and defend and may divert resources and management attention from the operation of our business.  Although these claims may be unsuccessful, they may harm our reputation and reduce our ability to attract customers and users.  

Changes in international trade policies and international barriers to trade, or the escalation of trade tensions, may have an adverse effect on our business and expansion plans.  

Recent international trade disputes and the uncertainties created by such disputes may disrupt the transnational flow of goods and significantly undermine the stability of the global and Chinese economy, thereby harming our business.  

Changes to trade policies, treaties and tariffs in the jurisdictions in which we operate, or are contemplating operating, or the perception that these changes could occur, could adversely affect the financial and economic conditions in such jurisdictions, as well as our international and cross-border operations, our financial condition and results of operations.  The U.S. administration under President Trump has advocated greater restrictions on trade generally, and has imposed and significantly increased tariffs on certain goods imported into the United States, particularly from China.  Such trade developments could materially impact our business as certain of our brand partners are based in the United States, and thus may face increased difficulty in sourcing base ingredients for their products, or cost-effectively developing new products with restricted or more expensive base ingredients.  As a result, we may face an increase in our operating costs as our suppliers raise their prices to absorb their increased costs, or an inability to meet the demands of the consumers who purchase from us, and a resulting decrease in our profits.  

Increases in tariffs and the prolongation of uncertainty surrounding international trade between the United States and China could have an adverse effect on our ability to source products from certain of our United States-based partners, either at an acceptable cost or at all, to sell in China.  If the products of our brand partners become subject to increased tariffs or other trade barriers, the resultant increase in cost or difficulty of importation may force us to find alternative providers of comparable products.  We cannot be certain that these alternative providers would be acceptable to Chinese consumers, given that the level of trust in the brands that we supply is a primary driver of purchasing decisions made by Chinese consumers.  As a result, we may experience a decrease in demand, and a material and adverse effect on our financial condition and results of operations.  

13


 

Therefore, any escalation in existing trade tensions or the advent of a trade war, or news and rumors of the escalation of a potential trade war, could affect the supply chains of participants within our ecosystem, increase their and our costs and have a material adverse effect on our business, results of operations and, ultimately, the trading price of our ADSs.  

Exchange rate fluctuations may negatively affect our results of operations.  

We source our products from brand partners globally.  We purchase these products primarily using U.S. dollars, and these products are ultimately sold to the Chinese domestic market, whose participants primarily make their purchases in Renminbi.  There is ordinarily a temporal gap between the point at which we purchase products and the point at which we receive payment for the products sold.  As a result, we are subject to the fluctuations of the currency exchange markets, particularly in the value of RMB to the U.S. dollar.  If the value of Renminbi declines during the temporal gap relative to the U.S. dollar, we may face a lower profit margin, or in some cases a loss, on the products sold.  For example, in 2017 we had an exchange rate gain of US$106.0 thousand, in 2018 we had an exchange rate loss of USS$306.7 thousand and in 2019 we had an exchange rate loss of US$393.0 thousand.  

In addition, substantially all of our operating expenses are denominated in Renminbi, and a significant portion of our financial assets are also denominated in Renminbi while a significant portion of our debt is denominated in U.S. dollars.  We are a holding company and we rely on dividends paid by our operating subsidiaries in China for our cash needs.  Any significant revaluation of the Renminbi may materially reduce any dividends payable on our ADSs in U.S. dollars.  To the extent that we need to convert U.S. dollars into Renminbi for our operations, appreciation of the Renminbi against the U.S. dollar would have an adverse effect on the Renminbi amount we would receive.  Conversely, if we decide to convert our Renminbi into U.S. dollars for the purpose of making payments for dividends on our Class A ordinary shares or ADSs or for other business purposes, appreciation of the U.S. dollar against the Renminbi would have a negative effect on the U.S. dollar amount we would receive.  As such, currency fluctuations may materially and adversely affect our financial condition and results of operations.  

Any failure to comply with PRC regulations regarding advertising may subject us to civil claims, fines and other legal or administrative sanctions.  

PRC advertising laws and regulations require the content of advertisements to be fair, accurate, not misleading and in full compliance with applicable laws.  Pursuant to the Interim Administrative Measures for the Examination of Advertisements for Drugs, Medical Devices, Health Food and Formula Food for Special Medical Purposes, promulgated by the SAIC on December 24, 2019, the content of healthcare food advertisements must follow the registration certificate or filing certificate approved by the administration for market regulation or the registered or filed specifications.  We have made efforts to ensure our advertisements and related advertising practices are in compliance with applicable regulations.  However, we cannot assure you that we have fully complied with the requirements of PRC regulatory authorities or will be able to fully comply with the requirements of PRC regulatory authorities regarding advertising.  If we are found in violation of applicable advertising laws and regulations, we may face serious penalties, including fines, revocation of our business licenses and discontinuance of our advertising activities.  As a result, we may not be able to publish new advertisements in a timely manner, and our turnover and reputation could be materially affected.  Moreover, governmental actions and civil claims may be filed against us for misleading or inaccurate advertising.  We may have to spend significant resources in defending against such actions, and these actions may damage our reputation, result in reduced turnover and negatively affect our results of operations.  

We may not be able to conduct our marketing activities effectively, properly or at reasonable costs.  

We conduct a variety of marketing and brand promotion efforts designed to enhance our brand recognition and increase sales of our products.  However, our brand promotion and marketing activities may not be well received and may not result in the levels of sales that we anticipate.  Additionally, marketing approaches and tools in the Chinese health and wellness market are continually evolving, which may further require us to experiment with new marketing methods to keep pace with industry developments.  Failure to refine our existing marketing approaches or to introduce new marketing approaches in a cost-effective manner may materially and adversely affect our financial condition and results of operations.  

We are subject to limitations in promoting our products, which may have an impact on our business operations.  

We are subject to certain limitations in promoting products.  The healthcare experts we work with and other relevant parties in the provision of our health and wellness content may have to comply with rules and regulations that restrict the promotion or dissemination of certain healthcare-related information, such as information on the professional healthcare services and practice provided by licensed medical practitioners.  Such restrictions may affect our ability to further enhance our brand recognition or secure new business opportunities in the future.  

14


 

There can be no assurance that our existing practices of monitoring our content dissemination process and publication would continue to be effective and would comply fully with laws and regulations.  Should there be any change in the relevant rules and regulations, or change of interpretation thereof, we, the healthcare experts we work with and other relevant third parties may be regarded as breaching the relevant rules and regulations and may be subject to regulatory penalties or disciplinary actions, which may materially and adversely affect our business and reputation.  

Our own information technology systems and infrastructure could fail or be subject to disruption.  

Our platform depends on the efficient and uninterrupted operation of our computer and communications systems.  Substantially all of our computer hardware and our cloud computing services are currently located in China.  In addition, we retain substantial quantities of data related to transactions, consumer information and other data that enables the operation and management of online stores.  Although we have prepared for contingencies through redundancy measures and disaster recovery plans, such preparation may not be sufficient and we do not carry business interruption insurance.  

Despite any precautions we take, the occurrence of a natural disaster, such as an earthquake, flood or wildfire, or other unanticipated problems at our facilities in China, including power outages, telecommunications delays or failures, break-ins to our systems or computer viruses, could result in delays or interruptions to our website or other portions of our platform, loss of data and significant business interruption.  Any of these events could damage our reputation, significantly disrupt our operations and subject us to liability, which could adversely affect our business, financial condition and results of operations.  

Security breaches and attacks against our systems and network, and any potentially resulting breach or failure to otherwise protect confidential and proprietary information could adversely affect our business, reputation, financial condition and results of operations.  

Our business generates and processes a large amount of data, and the improper use or disclosure of such data could harm our reputation as well as have a material adverse effect on our business and prospects.  

Our business collects and processes a large quantity of personal, transaction and behavioral data.  We face risks in the handling and securing of these large volumes of data.  In particular, we face a number of challenges relating to data from transactions and other activities on our platform, including:

 

protecting the data in and hosted on our system, including against attacks on our system by outside parties or fraudulent behavior by our employees;

 

addressing concerns related to privacy and sharing, safety, security and other factors; and

 

complying with applicable laws, rules and regulations relating to the collection, use, disclosure or security of personal information, including any requests from regulatory and governmental authorities relating to such data.  

Any systems failure or security breach or lapse that results in the release of user data could harm our reputation and brand and, consequently, our business, in addition to exposing us to potential legal liability.  

As we expand our operations, we may be subject to additional laws in other jurisdictions where our brand partners, consumers and other participants are located.  The laws, rules and regulations of other jurisdictions may impose requirements and penalties that are more stringent than, or conflict with, those under PRC law, compliance with which could require significant resources and costs.  Our privacy policies and practices concerning the collection, use and disclosure of user data are located on our websites.  Any failure, actual or perceived, by us to comply with our posted privacy policies or with any regulatory requirements or privacy protection-related laws, rules and regulations could result in proceedings or actions against us by governmental entities or others.  These proceedings or actions may subject us to significant penalties and negative publicity and require us to change our business practices.  Any such occurrence could increase our costs and materially and adversely affect our reputation, financial condition and results of operations.

15


 

If the contents we distribute or the online interaction we offer are deemed by the relevant authorities in the PRC to be in the nature of medical rather than non-medical, we may be subject to additional regulations and incur substantial compliance cost, and our business prospects, results of operations and financial condition may be materially and adversely affected.  

The distribution of medical information and medical advertisements are subject to PRC regulations.  Any website operator that provides medical information services must obtain certain licenses and approvals by relevant authorities before engaging in such businesses in the PRC.  We believe it is improbable for PRC governmental authorities to deem the contents distributed by us to be medical information or medical advertisements, and we have not been subject to any regulatory authority’s inquiries or investigations in connection with the content displayed on our platforms.  However, if certain information displayed on the online stores that we operate or otherwise distributed by us is considered medical information or medical advertisement by relevant authorities, it will subject us to additional regulations.  As a non-medical health and wellness integrated solution provider, we do not possess the required licenses or approvals.  Consequently, if required by relevant authorities, we may need to scale back, rearrange or alter the content or information displayed on our platforms.  

In addition, online medical consultation in the PRC requires medical service providers to be associated with approved physical hospitals and such providers to obtain regulatory approvals and licenses.  We have not yet acquired or established a hospital, and thus are not licensed to provide online medical consultation.  If certain consultation services offered by us are considered online medical consultation by relevant authorities, such services may be suspended until we acquire or establish our own hospital and obtain necessary approvals and licenses.  

Therefore, if the contents we distribute or the online interaction we offer is deemed to be in the nature of medical, our business model may be affected, and substantial compliance costs may be incurred.  As a result, our business prospects, results of operations and financial condition may be adversely affected.  

Substantial uncertainties exist with respect to the PRC Cyber Security Law and cybersecurity regulations, including any impact they may have on our business operations.  

On November 7, 2016, the PRC enacted its Cyber Security Law, which took effect on June 1, 2017, to establish more stringent requirements applicable to operators of computer networks, especially to operators of networks which involve critical information infrastructure.  Because of its exceptional breadth in scope, ambiguous requirements and broadly defined terminology, we are concerned about the law’s potential impact on our operations in China, particularly in relation to the safeguarding of user information.  The Cyber Security Law contains an overarching framework for regulating Internet security, protection of private and sensitive information, and safeguards for national cyberspace security and provisions for the continued government regulation of the Internet and content available in China.  The Cyber Security Law emphasizes requirements for network products, services, operations and information security, as well as monitoring, early detection, emergency response and reporting.  

Despite the law having taken effect, there remains a high degree of uncertainty in its interpretation and enforcement, especially in terms of protection of personal information.  This uncertainty presents a risk for us due to the large volume of personal data that we collect through our various touchpoints.  As it is not clear what the law will require in a given scenario or how these requirements may be interpreted, we cannot assure you that we would be able to comply with such requirements in a timely manner.  Failure to comply may lead to fines, orders of rectification, confiscation of illegal gains, revocation of the business permit or license and other government actions, which may materially and adversely affect our business, financial condition and results of operations.  

Further, as the legal and regulatory framework for the protection of information in cyberspace in China continues to evolve, we may be required to adjust our business practices or incur additional operating expenses, which may adversely affect our results of operations and financial condition.  

16


 

The successful operation of our business depends upon the performance and reliability of the Internet and telecommunications infrastructures in China.  

Our business depends on the reliable performance of the Internet and telecommunications infrastructures in China.  Almost all access to the Internet is maintained through state-owned telecommunication operators under the administrative control and regulatory supervision of the Ministry of Industry and Information Technology of China.  In addition, the national networks in China are connected to the Internet through state-owned international gateways, which are the only channels through which a domestic user can connect to the Internet outside China.  We may not have access to equivalent or sufficient alternative networks in the event of disruptions, failures or other problems with China’s Internet infrastructure.  As this vital infrastructure is state-owned, we are subject to governmental policy which may disrupt supply, and may have fewer avenues of recourse to remedy any losses caused by disruption pursuant to governmental policy.  In addition, the Internet infrastructure in China might not support the demands associated with continued growth in Internet usage.  

The failure of telecommunications network operators to provide us with the requisite bandwidth could also interfere with the speed and availability of our websites.  We have no control over the costs of the services provided by the national telecommunications operators.  If the cost of telecommunications and Internet services rises significantly, or if the telecommunication network in China is disrupted or fails, our gross margins could be adversely affected.  Technical limitations on Internet use could also be developed or implemented.  For example, restrictions could be implemented on personal Internet use in the workplace in general or access to our platform in particular.  This could lead to a reduction of consumer activity or a loss of consumers altogether, which in turn could have an adverse effect on our financial position and results of operations.  In addition, if Internet access fees or other charges to Internet users increase, our user traffic might decrease, which in turn could significantly decrease our revenues and have a material and adverse effect on our financial condition and results of operations.  

A severe or prolonged downturn in the global or Chinese economy could materially and adversely affect our business and our financial condition.  

The global macroeconomic environment is facing challenges, including, amongst other things:

 

uncertainty regarding the impact of the coronavirus epidemic in China and several major economies around the world;

 

ongoing political and economic tensions between the United States and China; and

 

the ongoing uncertainty in the wake of the United Kingdom’s recent exit from the European Union.

Our business and operations are primarily based in China and substantially all of our revenues are derived directly and indirectly from our operations in China.  Accordingly, our financial results have been, and are expected to continue to be, affected by the economy in general and the health and wellness market in China in particular.  Although the economy in China has grown significantly in the past decades, it is still facing difficulties and has experienced inconsistent growth in recent years.  The COVID-19 pandemic has had, and is expected to continue to have, an adverse impact on general economic conditions in China.

Economic conditions in China are sensitive to the global economic conditions described above, the ultimate duration and impact of the COVID-19 pandemic, changes in domestic economic and political circumstances and the expected or perceived overall economic growth rate in China.  Any prolonged slowdown in the global or Chinese economy may have an adverse impact on the levels of disposable income of Chinese consumers, and impede the growth of the rising Chinese middle class.  As a result, demand for our products, which is strongly driven by members of the Chinese middle class, may be negatively affected.  Such a decrease in demand may have a material and adverse impact on our business, results of operations and financial condition.  

We may be the subject of anti-competitive, harassing or other detrimental conduct by third parties, including complaints to regulatory agencies, negative blog postings, and the public dissemination of malicious assessments of our business that could harm our reputation and cause us to lose customers and revenues and materially and adversely affect the price of our ADSs.  

We may be the target of anti-competitive, harassing or other detrimental conduct by third parties.  Such conduct includes complaints, anonymous or otherwise, to regulatory agencies.  We may be subject to government or regulatory investigation as a result of such third-party conduct and may be required to expend significant time and incur substantial costs to address such third-party conduct, and there is no assurance that we will be able to conclusively refute each of the allegations within a reasonable period of time, or at all.  Additionally, allegations, directly or indirectly against us, may be posted in Internet chat rooms or on blogs or websites by anyone, whether or not associated with us, on an anonymous basis.  Consumers value readily available information concerning retailers, manufacturers, and their goods and services and often act on such information without further investigation or authentication

17


 

and without regard to its accuracy.  The availability of information on social media platforms and devices is virtually immediate, as is its impact.  Social media platforms and devices immediately publish the content their subscribers and participants post, often without filters or checks on the accuracy of the content posted.  Information posted may be inaccurate and adverse to us, and it may harm our financial performance, prospects or business.  The harm may be immediate without affording us an opportunity for redress or correction.  Our reputation may be negatively affected as a result of the public dissemination of anonymous allegations or malicious statements about our business, which in turn may cause us to lose market share, customers and revenues and adversely affect the price of our ADSs.  

Our business may be materially and adversely affected by adverse news, scandals or other incidents associated with the general health and wellness industry.  

Incidents that inspire doubt as to the quality or safety of health and wellness products manufactured, distributed or sold by other participants in the general health and wellness industry in China or around the world, particularly those who primarily operate in the e-commerce space, have been, and may continue to be, subject to widespread media attention.  Such incidents may damage the reputation of not only the parties involved, but also the health and wellness industry in general, even if such parties or incidents have no relation to us, our management, our employees, our brand partners, our platform or the third-party e-commerce websites through which we also market products.  There may also be a decrease in consumer demand for healthcare-related products if these negative incidents diminish the trust of consumers in the Chinese health and wellness market.  Such negative publicity, and any resultant decrease in demand for our products and services, may adversely affect our reputation and business operations.  In addition, incidents not related to product quality or safety, or other negative publicity or scandals implicating us or our employees, regardless of merit, may also have an adverse impact on our reputation, financial condition and results of operations.  

We may not be able to protect our intellectual property rights.  

We rely on a combination of trademark, fair trade practice, patent, copyright and trade secret protection laws in the PRC and other jurisdictions in which we hold intellectual property rights, as well as confidentiality procedures and contractual provisions with employees, suppliers and third parties, to protect our intellectual property rights.  

Intellectual property protection may not be sufficient in the PRC or in the other jurisdictions in which we hold intellectual property.  Confidentiality agreements may be breached by counterparties, and there may not be adequate remedies available to us for any such breach.  Accordingly, we may not be able to effectively protect our intellectual property rights or to enforce our contractual rights in the PRC or elsewhere.  In addition, policing any unauthorized use of our intellectual property is difficult, time-consuming and costly, and the steps we have taken may be inadequate to prevent the misappropriation of our intellectual property.  In the event that we resort to litigation to enforce our intellectual property rights, such litigation could result in substantial costs and a diversion of our managerial and financial resources.  We can provide no assurance that we will prevail in such litigation.  In addition, our trade secrets may be leaked or otherwise become available to, or be independently discovered by, our competitors.  Any failure in protecting or enforcing our intellectual property rights could have a material adverse effect on our business, financial condition and results of operations.  

We may be accused of infringing intellectual property rights of third parties and content restrictions of relevant laws.  

Third parties may claim that the technology used in the operation of our platforms infringes upon their intellectual property rights.  Although we have not previously faced material litigation involving direct claims of infringement by us, the possibility of intellectual property claims against us increases as we expand.  Such claims, whether meritorious or not, may result in injunctions against us, payment of damages and expenditure of significant financial and management resources.  If we are found to have infringed the intellectual property rights of third parties in the future, we may need to obtain licenses to continue to operate our platforms and such licenses may not be available on terms acceptable to us or at all.  These risks are amplified by the increase in the number of third parties whose sole or primary business is to assert such claims.  

We may from time to time become party to litigation, other legal or administrative disputes and proceedings that may materially and adversely affect us.  

In the course of our ordinary business operations, we may become a party to litigation, legal proceedings, claims, disputes or arbitration proceedings from time to time.  For example, in March 2016, we entered into a cooperation framework agreement to establish a joint venture with Shanghai Heng Shou Tang Health Food Co. Ltd., Shanghai Heng Shou Tang Pharmaceutical Co., Ltd. and Mr. Wei Song, or our joint venture partners.  As part of the agreement, Shanghai Heng Shou Tang Health Food Co. Ltd. and Shanghai Heng Shou Tang Pharmaceutical Co., Ltd. agreed to contribute their ownership in a number of trademarks to the joint venture.  However, only a portion of such trademarks were transferred to us.  In October 2018, we filed a civil claim against the joint

18


 

venture partners in the Shanghai Xuhui People’s Court to enforce the transfer of the remaining trademarks, claim damages in the amount of RMB7.19 million (US$1.05 million) and request that Shanghai Heng Shou Tang Health Food Co. Ltd. and Shanghai Heng Shou Tang Pharmaceutical Co., Ltd. be enjoined from using the brand name “Heng Shou Tang” in all categories.  In January 2019, the joint venture partners filed a counterclaim to rescind the agreement and allege damages in the amount of RMB3.25 million (US$472.7 thousand).  In July 2019, the Shanghai Xuhui People’s Court ruled that we shall pay damages in the amount of RMB3.25 million (US$472.7 thousand) to the joint venture partners for breaching our contractual obligation to contribute capital to our joint venture, and that the joint venture partners shall continue to perform their contractual obligations by transferring the remaining trademarks to the joint venture and cease to use the brand name “Heng Shou Tang” in all categories.  Both we and our joint venture partners filed appeals with the Shanghai First Intermediate People's Court.  In November 2019, the Shanghai First Intermediate People's Court delivered its judgment, which provides, amongst other matters, that we shall not pay damages to our joint venture partners and our joint venture partners shall continue to perform their contractual obligations by transferring the remaining trademarks to our joint venture.

Were any proceedings, claims, disputes or arbitration to arise, these may distract our senior management’s attention and consume our time and other resources.  In addition, even if we ultimately succeed in such proceedings, there may be negative publicity created in the course of or surrounding that proceeding, which may materially and adversely affect our reputation.  In the case of an adverse verdict, we may be required to pay significant monetary damages, assume significant liabilities or suspend or terminate parts of our operations.  As a result, our business, financial condition, results of operations and prospects may be materially and adversely affected.  

Future strategic alliances, acquisitions or divestments may have a material adverse effect on our business, financial condition and results of operations.  

We regularly examine a range of corporate opportunities, including acquisitions and divestments, with a view to determining whether such opportunities will enhance our strategic position and financial performance.  We plan to expand our business both geographically and in terms of the products and services that we offer to our customers and brand partners.  In pursuit of this strategy, we may enter into strategic alliances, including joint ventures or equity investments, with various third parties to further our business purpose from time to time.  These alliances could subject us to a number of risks, including risks associated with sharing proprietary information, non-performance by a third party and increased expenses in establishing new strategic alliances, any of which may materially and adversely affect our business.  We may have limited ability to monitor or control the actions of these third parties and, to the extent any of these strategic third parties suffers negative publicity or harm to their reputation from events relating to their business, we may also suffer negative publicity or harm to our reputation by virtue of our association with any such third party.  

In addition, when appropriate opportunities arise, we may acquire additional assets, products, technologies or businesses that are complementary to our existing business or we may divest certain of our assets.  In addition to possible shareholder approval, any proposed acquisition may also require us to obtain approvals and licenses from relevant governmental authorities and to comply with any applicable PRC laws and regulations, which could result in increased delay and costs, and may derail our business strategy if we fail to do so.  Any international operations that we absorb as part of any acquisitions may give rise to risks and challenges that could adversely affect our business, such as compliance with international legal and regulatory requirements, further management of fluctuations in currency exchange rates or competition from local incumbents with superior local market knowledge and competitive advantages.  Moreover, we cannot be certain that any international expansion efforts can be completed as planned or achieve the intended results, or that any negative results from acquired interests would not affect our business as a whole.  Any separation of a divested asset may be complex and costly, and may include separating relevant accounting and data processing systems and management controls, as well as managing relevant relationships with employees, customers, regulators, counterparties, suppliers and other business partners.

Furthermore, past and future acquisitions or divestments and the subsequent integration or separation of new assets and businesses require significant attention from our management and could result in a diversion of resources from our existing business, which in turn could have a material adverse effect on our business operations.  Acquired assets or businesses may not generate the financial results we expect.  Acquisitions could result in the use of substantial amounts of cash, potentially dilutive issuances of equity securities, the occurrence of significant goodwill impairment charges, amortization expenses for other intangible assets and exposure to potential unknown liabilities of the acquired business.  Moreover, the costs of identifying and consummating acquisitions may be significant.  Furthermore, our equity investees may generate significant losses, a portion of which will be shared by us in accordance with U.S. GAAP.  Any such negative developments could have a material adverse effect on our business, financial condition and results of operations.  

19


 

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

The Chinese economy has been experiencing increases in inflation and labor costs in recent years.  As a result, average wages in China are expected to continue to grow.  In addition, various PRC laws and regulations designed to enhance labor protection require us to pay certain statutory employee benefits, including pensions, housing funds, medical insurance, work-related injury insurance, unemployment insurance and maternity insurance to designated government agencies for the benefit of our employees.  The relevant government agencies may examine whether an employer has made adequate payments of the requisite statutory employee benefits, and those employers who fail to make adequate payments could be subject to late payment fees, fines and/or other penalties.  As the interpretation and implementation of these laws and regulations are still evolving, our employment practices may not at all times be deemed to be in compliance with the applicable laws and regulations.  If the relevant authorities determine that we should make supplemental social insurance and housing fund contributions and that we are subject to fines and legal sanctions, our business, financial condition and results of operations could be adversely affected.  We expect that our labor costs, including wages and employee benefits, will continue to increase.  Unless we are able to pass on these increased labor costs to our customers by increasing the prices of our products and services, our financial condition and results of operations could be adversely affected.  

In addition, we may face labor unrest if our employees form the view that we do not pay them adequately or provide adequate working conditions.  Such labor unrest may take the form of labor disputes, strike actions or protests against us.  This may have an adverse impact on our reputation and cause a loss of public trust in our company.  If this were to occur, such loss of trust may materially and adversely affect our financial condition and results of operations.  

If we fail to maintain proper and effective internal controls, our ability to produce accurate financial statements on a timely basis could be impaired.  

As a result of the initial public offering, we have become subject to the reporting requirements of the Exchange Act, the Sarbanes-Oxley Act of 2002 and the rules and regulations of the Nasdaq Stock Market.  The Sarbanes-Oxley Act requires, among other things, that we maintain effective disclosure controls and procedures and internal controls over financial reporting.  Commencing with our fiscal year ending December 31, 2020, we must perform system and process evaluation and testing of our internal controls over financial reporting to allow management to report on the effectiveness of our internal controls over financial reporting in our Form 20-F filing for that year, as required by Section 404 of the Sarbanes-Oxley Act.  In addition, when we cease to be an “emerging growth company” as the term is defined in the Jumpstart Our Business Startups Act, our independent registered public accounting firm must attest to and report on the effectiveness of our internal control over financial reporting.  Our management may conclude that our internal control over financial reporting is not effective.  Moreover, even if our management concludes that our internal control over financial reporting is effective, our independent registered public accounting firm, after conducting its own independent testing, may issue a report that is qualified if it is not satisfied with our internal controls or the level at which our controls are documented, designed, operated or reviewed, or if it interprets the relevant requirements differently from us.  This will require that we incur substantial additional professional fees and internal costs to expand our accounting and finance functions and that we expend significant management efforts.  We may experience difficulty in meeting these reporting requirements in a timely manner.  

In the course of preparing and auditing our consolidated financial statements for the years ended December 31, 2017, 2018 and 2019, we and our independent registered public accounting firm identified one material weakness in our internal control over financial reporting as of December 31, 2019.  In accordance with U.S. GAAP and financial reporting requirements set forth by the SEC, a “material weakness” is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our company’s annual or interim consolidated financial statements will not be prevented or detected on a timely basis.  

The material weakness, which was first identified in the course of preparing our consolidated financial statements for the year ended December 31, 2018, relates to our lack of sufficient financial reporting and accounting personnel with appropriate knowledge of U.S. GAAP and SEC reporting requirements to formalize key controls over financial reporting and to prepare consolidated financial statements and related disclosures.  Neither we nor our independent registered public accounting firm undertook a comprehensive assessment of our internal control under the Sarbanes-Oxley Act for purposes of identifying and reporting any weakness in our internal control over financial reporting.  Had we performed a formal assessment of our internal control over financial reporting or had our independent registered public accounting firm performed an audit of our internal control over financial reporting, additional control weaknesses may have been identified.  

20


 

To remedy our identified material weakness, we plan to undertake steps to strengthen our internal control over financial reporting, including: (i) implementing regular and continuous U.S. GAAP accounting and financial reporting training programs for our accounting and financial reporting personnel; (ii) hiring more qualified personnel equipped with relevant U.S. GAAP and SEC reporting experience and qualifications to strengthen the financial reporting function; (iii) establishing effective oversight and clarifying reporting requirements for non-recurring and complex transactions to ensure consolidated financial statements and related disclosures are accurate, complete and in compliance with SEC reporting requirements; and (iv) preparing comprehensive accounting policies, manuals and closing procedures to improve the quality and accuracy of our period-end financial closing process.  However, we cannot assure you that we will remediate our material weakness in a timely manner.

In addition, our internal control over financial reporting will not prevent or detect all errors and all fraud.  A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met.  Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud will be detected.  

An occurrence of a natural disaster, pandemic or other events could have a material adverse effect on our business, financial condition and results of operations.  

Our business could be materially and adversely affected by natural disasters, such as earthquakes, wildfires or floods or other events, such as pandemics, wars, acts of terrorism, states of emergency, environmental accidents, power shortages, labor unrest or communication interruptions.  The occurrence of such an event in China or elsewhere could materially disrupt our business and operations.  Such events could also cause a temporary closure of the facilities we use for our operations, which would severely disrupt our operations and have a material adverse effect on our business, financial condition and results of operations.  Our operations could be disrupted if any of our employees were suspected of having any of the epidemic illnesses, since this could require us to quarantine some or all of such employees or disinfect the facilities used for our operations.  In addition, our revenue and profitability could be materially reduced to the extent that a natural disaster or other outbreak harms the global or Chinese economy in general.  Our operations could also be severely disrupted if our users or other participants were affected by such natural disasters, pandemics or other events.  

For example, the COVID-19 pandemic and the associated business uncertainty and volatility has had an adverse impact on our business, financial condition and results of operations.  See “— Risks Related to Our Business and Industry — Our company’s business, financial position, liquidity and results of operations have been, and are likely to continue to be, materially and adversely affected by the COVID-19 pandemic.”  On March 31, 2020, we furnished to the SEC our preliminary unaudited selected financial results for the year ended December 31, 2019 and the fourth quarter ended December 31, 2019.  We withdrew the guidance for the fiscal year 2020 we previously provided to the market on November 25, 2019, and estimated that the disruptions caused by the COVID-19 pandemic will have an adverse impact on our financial results in the first quarter of fiscal year 2020.

We may not have sufficient insurance coverage.  

We have obtained insurance to cover certain potential risks and liabilities, such as property damage.  However, insurance companies in China offer limited business insurance products.  As a result, we may not be able to acquire any insurance for certain types of risks such as business liability or service disruption insurance for our operations in China, and our coverage may not be adequate to compensate for all losses that may occur, particularly with respect to loss of business or operations.  We do not maintain business interruption insurance or product liability insurance, nor do we maintain key-man life insurance.  This could leave us exposed to potential claims and losses.  Any business disruption, litigation, regulatory action, outbreak of epidemic disease or natural disaster could also expose us to substantial costs and diversion of resources.  We cannot assure you that our insurance coverage is sufficient to prevent us from any loss or that we will be able to successfully claim our losses under our current insurance policy on a timely basis, or at all.  If we incur any loss that is not covered by our insurance policies, or the compensated amount is significantly less than our actual loss, our business, financial condition and results of operations could be materially and adversely affected.  

Failure to renew our current leases or locate desirable alternatives for our leased properties could materially and adversely affect our business.  

We lease properties for our offices and the warehousing facilities that we operate.  We may not be able to successfully extend or renew such leases upon expiration of the current term on commercially reasonable terms, or at all, and may therefore be forced to relocate our affected operations.  This could disrupt our operations and result in significant relocation expenses, which could adversely affect our business, financial condition and results of operations.  

21


 

In addition, we compete with other businesses for premises at certain locations or of desirable sizes.  As a result, even though we could extend or renew our leases, rental payments may significantly increase as a result of the high demand for the leased properties.  Moreover, we may not be able to locate desirable alternative sites for our current leased properties as our business continues to grow and failure in relocating our affected operations could adversely affect our business and operations.  

Certain of our leasehold interests in leased properties have not been registered with the relevant PRC governmental authorities as required by relevant PRC laws and some of our leased properties have title defects.  

We have not registered certain of our lease agreements with the relevant governmental authorities.  Under the relevant PRC laws and regulations, we may be required to register and file with the relevant governmental authority executed leases.  The failure to register the lease agreements for our leased properties will not affect the validity of these lease agreements, but the competent housing authorities may order us to register the lease agreements in a prescribed period of time and impose a fine ranging from RMB1,000 (US$143) to RMB10,000 (US$1,433) for each non-registered lease if we fail to complete the registration within the prescribed timeframe.  

In addition, the actual use of some of our leased properties was inconsistent with the planned use on the property ownership certificates.  If relevant governmental authorities require the lessor to correct such inconsistency or request land resumption, we may be unable to continue to lease such properties and as a result we may be forced to relocate the properties and incur additional expenses relating to such relocation.  If we fail to find suitable replacement sites in a timely manner or on terms acceptable to us, our business and results of operations could be materially and adversely affected.  

Risks Related to Our Corporate Structure

We are a “controlled company” within the meaning of the Nasdaq corporate governance requirements, which may result in public investors having less protection than they would if we were not a controlled company.  

Our co-founders, Ms. Zoe Wang, who serves as our Chairman and Chief Executive Officer, and Mr. Leo Zeng, who serves as our Chief Operating Officer, collectively hold 92.0% of the total voting rights in our company and we are, and expect to continue to be, a “controlled company” as defined under the Nasdaq Stock Market Rules.  As a controlled company, we rely on certain exemptions that are available to controlled companies from the Nasdaq corporate governance requirements.  Examples of the requirements from which we are exempt include the requirements that:

 

the majority of our board of directors consists of independent directors;

 

our compensation committee be composed entirely of independent directors; and

 

our corporate governance and nominating committee be composed entirely of independent directors.  

We are not required to and do not voluntarily meet these requirements.  As a result of our use of the “controlled company” exemption, our investors do not have the same protection as they would if we were not a controlled company.  

In addition, Ms. Wang and Mr. Zeng have decisive influence in determining the outcome of any corporate transaction or other matter submitted to the shareholders for approval, including mergers, consolidations and the sale of all or substantially all of our assets, election of directors and other significant corporate actions.  Without the consent of Ms. Wang and Mr. Zeng, we may be prevented from entering into transactions that could be beneficial to us.  The interests of Ms. Wang and Mr. Zeng may differ from the interests of our other shareholders.  

If the PRC government finds that the agreements that establish the operating structure for some of our operations in China do not comply with PRC regulations relating to the relevant industries, or if these regulations or the interpretation of existing regulations change in the future, we could be subject to severe penalties or be forced to relinquish our interests in those operations.  

Under current PRC laws and regulations, foreign investors are generally not allowed to own more than 50% of the equity interests in a value-added telecommunications services provider (subject to several exceptions) and any such foreign investor must have experience in providing value-added telecommunications services overseas and maintain a good track record.  

22


 

We are a Cayman Islands holding company and our PRC subsidiaries are considered foreign-invested enterprises, directly or indirectly.  Accordingly, none of these PRC subsidiaries is eligible to provide value-added telecommunications services in China.  We do not currently provide value-added telecommunications services because our sales of goods purchased by us does not constitute providing value-added telecommunications services.  Our variable interest entity, Shanghai Yibo, however, holds an ICP license and may develop e-commerce platforms for other trading parties.  

We entered into a series of contractual arrangements with Shanghai Yibo and its shareholders, which enable us to:

 

exercise effective control over Shanghai Yibo;

 

receive substantially all of the economic benefits of Shanghai Yibo; and

 

have an exclusive option to purchase all or part of the equity interests and assets in Shanghai Yibo when and to the extent permitted by PRC law.  

Because of these contractual arrangements, we are the primary beneficiary of Shanghai Yibo and hence consolidate its financial results as our variable interest entity, or VIE.  

In the opinion of Commerce & Finance Law Offices, our PRC counsel, the ownership structure of our variable interest entity, currently does not result in any violation of the applicable PRC laws or regulations currently in effect; and the agreements under the contractual arrangements among us, our variable interest entity and its shareholders, are governed by PRC laws or regulations, and are currently valid, binding and enforceable in accordance with the applicable PRC laws and regulations currently in effect, and do not result in any violation of the applicable PRC laws or regulations currently in effect.  

However, our PRC counsel, Commerce & Finance Law Offices, advised us that there are substantial uncertainties regarding the interpretation and application of current and future PRC laws, regulations and rules and there can be no assurance that the PRC government will ultimately take a view that is consistent with the opinion of our PRC counsel.  If the PRC government finds the agreements that establish our Internet-based business do not comply with PRC government restrictions on foreign investment in the aforesaid business we engage in, we could be subject to severe penalties, including being prohibited from continuing operations.  

If we or our VIE is found to be in violation of any existing or future PRC laws or regulations, or fails to obtain or maintain any of the required permits or approvals, the relevant PRC regulatory authorities would have broad discretion to take action in dealing with such violations or failures, including:

 

revoking the business licenses and/or operating licenses of our VIE;

 

shutting down our website, or discontinuing or restricting the conducting of any transactions between certain of our PRC subsidiaries and VIE;

 

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

 

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

 

prohibiting or restricting our use of the proceeds of our initial public offering to finance our business and operations in China.  

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

23


 

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

Although substantially all of our revenues are generated by our PRC and Hong Kong subsidiaries, and substantially all of our assets are held by our PRC and Hong Kong subsidiaries, we have relied and expect to continue to rely on contractual arrangements with Shanghai Yibo and its shareholders to hold our Internet Content Provider licenses, or ICP licenses, to enable us to manage value-added telecommunication businesses.  These contractual arrangements may not be as effective as direct ownership in providing us with control over our VIE.

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

All the agreements under our contractual arrangements are governed by PRC law and provide for the resolution of disputes through arbitration in China.  Accordingly, these contracts would be interpreted in accordance with PRC law and any disputes would be resolved in accordance with PRC legal procedures.  The legal system in the PRC is not as developed as in some other jurisdictions, such as the United States.  See “— Risks Related to Doing Business in the People’s Republic of China—There are uncertainties regarding the interpretation and enforcement of PRC laws, rules and regulations”.  Meanwhile, there are very few precedents and little formal guidance as to how contractual arrangements in the context of a VIE should be interpreted or enforced under PRC law, and as a result it may be difficult to predict how an arbitration panel would view such contractual arrangements.  As a result, uncertainties in the PRC legal system could limit our ability to enforce these contractual arrangements.  Additionally, under PRC law, rulings by arbitrators are final, parties cannot appeal the arbitration results in courts, and if the losing parties fail to carry out the arbitration awards within a prescribed time limit, the prevailing parties may only enforce the arbitration awards in PRC courts through arbitration award recognition proceedings, which would require additional expenses and delay.  

Our VIE holds an ICP license.  In the event we are unable to enforce our contractual arrangements, we may not be able to exert effective control over our VIE or to conduct the relevant businesses.  As a result, our business, financial condition, results of operations and prospects would be adversely affected.  

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

The shareholders of our VIE, Ms. Zoe Wang and Mr. Leo Zeng, may have potential conflicts of interest with us.  These shareholders may breach, or cause our VIE to breach, or refuse to renew, the existing contractual arrangements we have with them and our VIE, which would have a material adverse effect on our ability to effectively control our VIE and receive substantially all the economic benefits from them.  For example, the shareholders may be able to cause our agreements with our VIE to be performed in a manner adverse to us by, among other things, failing to remit payments due under the contractual arrangements to us on a timely basis.  We cannot assure you that when conflicts of interest arise, any or all of these shareholders will act in the best interests of our company or such conflicts will be resolved in our favor.  

PRC regulations of loans to PRC entities and direct investment in PRC entities by offshore holding companies may delay or prevent us from using the proceeds of our initial public offering to make loans or additional capital contributions to our majority owned subsidiary, Shanghai ECMOHO Health Biotechnology Co. Limited, or ECMOHO Shanghai.  

We may transfer funds to our majority owned subsidiary, Shanghai ECMOHO Health Biotechnology Co. Limited, or ECMOHO Shanghai, or finance ECMOHO Shanghai by means of shareholder loans or capital contributions.  Any such loans to ECMOHO Shanghai, which is a foreign-invested enterprise, cannot exceed statutory limits, which is the cross-border financing risk weighted balance calculated based on a special formula or the difference between the registered capital and the total investment amount of such subsidiary, and shall be registered with the State Administration of Foreign Exchange, or the SAFE, or its local counterparts.  We may not be able to obtain these government registrations or approvals on a timely basis, if at all.  If we fail to receive such registrations or approvals, our ability to provide loans or capital contributions to ECMOHO Shanghai in a timely manner may be negatively affected, which could materially and adversely affect our liquidity and our ability to fund and expand our business.  

24


 

On March 30, 2015, SAFE promulgated the Notice on Reforming the Administration of Foreign Exchange Settlement of Capital of Foreign-invested Enterprise, or SAFE Circular 19, which launched a nationwide reform of the administration of the foreign exchange settlement of the capital of Foreign-invested Enterprises, or FIEs, and allows FIEs to convert their foreign currency capital contribution into Renminbi funds at their discretion, but continues to prohibit FIEs from using the Renminbi funds converted from their foreign currency capital contribution for expenditure beyond their business scopes, providing entrusted loans or repaying loans between nonfinancial enterprises.  On June 9, 2016, SAFE promulgated the Circular on Reforming and Regulating Policies on the Management of the Settlement of Foreign Exchange of Capital Account, or the SAFE Circular 16.  SAFE Circular 16 reiterates some of the rules set forth in SAFE Circular 19, and also prohibits FIEs from using such Renminbi funds to provide loans to persons other than affiliates unless otherwise permitted under its business scope.  Violations of these Circulars could result in severe monetary or other penalties.  SAFE Circular 19 and SAFE Circular 16 may significantly limit our ability to use Renminbi converted from the net proceeds of our initial public offering, which may adversely affect our business, financial condition and results of operations.  

On October 23, 2019, the SAFE promulgated the Notice of the State Administration of Foreign Exchange on Further Promoting the Convenience of Cross-border Trade and Investment, or the SAFE Circular 28, which, among other things, allows all foreign-invested companies to use Renminbi converted from foreign currency-denominated capital for equity investments in China, as long as the equity investment is genuine, does not violate applicable laws, and complies with the negative list on foreign investment.  However, since the SAFE Circular 28 is newly promulgated, it is unclear how SAFE and competent banks will carry this out in practice.

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

Under applicable PRC laws and regulations, arrangements and transactions among related parties may be subject to audit or challenge by the PRC tax authorities.  We could face material adverse tax consequences if the PRC tax authorities determine that the contractual arrangements among ECMOHO Shanghai, Shanghai Yibo and the shareholders of Shanghai Yibo were not entered into on an arm’s-length basis in such a way as to result in an impermissible reduction in taxes under applicable PRC laws, rules and regulations, and adjust Shanghai Yibo’s income in the form of a transfer pricing adjustment.  A transfer pricing adjustment could, among other things, result in a reduction of expense deductions recorded by Shanghai Yibo for PRC tax purposes, which could in turn increase their tax liabilities.  In addition, the PRC tax authorities may impose punitive interest on Shanghai Yibo for the adjusted but unpaid taxes at the rate of 5% over the basic RMB lending rate published by the People’s Bank of China for a period according to the applicable regulations.  Our financial position could be materially and adversely affected if our VIE’s tax liabilities increase or if it is required to pay punitive interest.  

Our current corporate structure and business operations may be affected by the newly enacted Foreign Investment Law.  

On March 15, 2019, the National People’s Congress promulgated the Foreign Investment Law, which became effective on January 1, 2020 and replaced the Sino-Foreign Equity Joint Venture Enterprise Law, the Sino-Foreign Cooperative Joint Venture Enterprise Law and the Foreign Owned Enterprise Law as the legal basis for foreign investment in the PRC.  The Foreign Investment Law stipulates three forms of foreign investment, which do not include contractual arrangements.  Notwithstanding the above, the Foreign Investment Law provides that a foreign investment includes foreign investors investing in China through “any other methods” under laws, administrative regulations or provisions prescribed by the State Council.  It is possible that future laws, administrative regulations or provisions prescribed by the State Council may regard contractual arrangements as a form of foreign investment, at which time it will be uncertain whether contractual arrangements will be deemed to be in violation of the foreign investment access requirements and how such arrangements will be treated by relevant PRC authorities.  There is no guarantee that the contractual arrangements in relation to our VIE and our business will not be materially and adversely affected in the future due to changes in PRC laws and regulations.  If future laws, administrative regulations or provisions prescribed by the State Council mandate further actions by companies with existing contractual arrangements, we may face substantial uncertainties as to the timely completion of such actions.  In those cases, we may be required to unwind the contractual arrangements and/or dispose of our VIE, which could have a material and adverse effect on our business, financial condition and result of operations.  

Risks Related to Doing Business in the People’s Republic of China

Changes in the political and economic policies of the PRC government may materially and adversely affect our business, financial condition and results of operations and may result in our inability to sustain our growth and expansion strategies.  

Most of our operations are conducted in the PRC, and substantially all of our revenue is sourced from the PRC.  Accordingly, our financial condition and results of operations are affected to a significant extent by economic, political and legal developments in the PRC.  

25


 

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

While the PRC economy has experienced significant growth in the past four decades, growth has been uneven, both geographically and among various sectors of the economy.  In addition, the COVID-19 pandemic has had a severe and negative impact on the Chinese economy.  The Chinese economy contracted in the first quarter of calendar year 2020 and economic growth is likely to be weak in the foreseeable future.  Any severe or prolonged slowdown in the rate of growth of the Chinese economy may adversely affect our operations in China, our growth strategy and may have a materially adverse impact on our business, financial condition and results of operations.  

Various measures implemented by the PRC government to encourage economic growth and guide the allocation of resources may benefit the overall PRC economy, but may also have a negative effect on us.  Our financial condition and results of operation could be materially and adversely affected by government control over capital investments or changes in tax regulations that are applicable to us.  In addition, the PRC government has implemented in the past certain measures, including interest rate increases, to control the pace of economic growth.  These measures may cause decreased economic activity, which in turn could lead to a reduction in demand for our services and consequently have a material adverse effect on our businesses, financial condition and results of operations.  

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

Most of our operations are conducted in the PRC, and are governed by PRC laws, rules and regulations.  Our PRC subsidiaries are subject to laws, rules and regulations applicable to foreign investment in China.  The PRC legal system is a civil law system based on written statutes.  Unlike the common law system, prior court decisions may be cited for reference but have limited precedential value.  

In 1979, the PRC government began to promulgate a comprehensive system of laws, rules and regulations governing economic matters in general.  The overall effect of legislation over the past four decades has significantly enhanced the protections afforded to various forms of foreign investment in China.  However, China has not developed a fully integrated legal system, and recently enacted laws, rules and regulations may not sufficiently cover all aspects of economic activities in China or may be subject to significant degrees of interpretation by PRC regulatory agencies.  In particular, because these laws, rules and regulations are relatively new, and because of the limited number of published decisions and the nonbinding nature of such decisions, and because the laws, rules and regulations often give the relevant regulator significant discretion in how to enforce them, the interpretation and enforcement of these laws, rules and regulations involve uncertainties and can be inconsistent and unpredictable.  In addition, the PRC legal system is based in part on government policies and internal rules, some of which are not published on a timely basis or at all, and which may have a retroactive effect.  As a result, we may not be aware of our violation of these policies and rules until after the occurrence of the violation.  

Any administrative and court proceedings in China may be protracted, resulting in substantial costs and diversion of resources and management attention.  Since PRC administrative and court authorities have significant discretion in interpreting and implementing statutory and contractual terms, it may be more difficult to evaluate the outcome of administrative and court proceedings and the level of legal protection we enjoy than in more developed legal systems.  These uncertainties may impede our ability to enforce the contracts we have entered into and could materially and adversely affect our business, financial condition and results of operations.  

We may be adversely affected by the complexity, uncertainties and changes in PRC regulation of healthcare industry and Internet-related businesses, and any lack of requisite approvals, licenses or permits applicable to our business may have a material adverse effect on our business and results of operations.  

Our business is subject to governmental supervision and regulation by the relevant PRC governmental authorities, including but not limited to the MOFCOM, the MIIT, the NMPA, the NHFPC and SAIC and their counterparts.  Together, these governmental authorities promulgate and enforce regulations that cover many aspects of the operation of food and pharmaceutical businesses, medical and healthcare services and Internet-related businesses, including foreign ownership of, and the licensing and permit requirements pertaining to, companies in such business.  The laws and regulations related to medical and healthcare services and

26


 

Internet-related businesses are evolving rapidly, and their interpretation and enforcement involve significant uncertainties.  As a result, in certain circumstances it may be difficult to determine what actions or omissions may be deemed to be in violation of applicable laws and regulations.  Under PRC laws, an entity must obtain the food operation license from SAIC or its counterpart for conducting healthcare-related products wholesale and retail business, the pharmaceutical operation license from the CFDA or its counterpart for conducting pharmaceutical wholesale and retail business, and the value-added telecommunications services operating licenses from the MIIT or its counterpart for either online information services or third-party e-commerce platforms.  We have made great efforts to obtain all applicable licenses and permits necessary to our main business.  However, the interpretation and application of existing PRC laws, regulations and policies and possible new laws, regulations or policies relating to the pharmaceutical operation, medical and healthcare services, and Internet-related businesses have created substantial uncertainties regarding the legality of existing and future foreign investments in, and the businesses and activities of, pharmaceutical operation and Internet-related business industry in China, including our business, we cannot assure you that we have obtained all the permits or licenses required for conducting our business or will be able to maintain our existing licenses or obtain new ones.  For example, the address on some of our Food Operation Permits is inconsistent with our actual operating address.  If the PRC government considers that we were operating without the proper approvals, licenses or permits or promulgates new laws and regulations that require additional approvals or licenses or imposes additional restrictions on the operation of any part of our business, it has the power, among other things, to levy fines, confiscate our income, revoke our business licenses, and require us to discontinue our relevant business or impose restrictions on the affected portion of our business.  Any of these actions by the PRC government may have a material adverse effect on our business and results of operations.  

PRC regulations regarding acquisitions impose significant regulatory approval and review requirements, which could make it more difficult for us to pursue growth through acquisitions.  

Under the PRC Anti-Monopoly Law, companies undertaking acquisitions relating to businesses in China must notify MOFCOM in advance of any transaction where the parties’ revenues in the China market exceed certain thresholds and the buyer would obtain control of, or decisive influence over, the target, while under the M&A Rules, the approval of MOFCOM must be obtained in circumstances where overseas companies established or controlled by PRC enterprises or residents acquire domestic companies affiliated with such PRC enterprises or residents.  Applicable PRC laws, rules and regulations also require certain merger and acquisition transactions to be subject to security review.  Due to the level of our revenues, our proposed acquisition of control of, or decisive influence over, any company with revenues within China of more than RMB400 million in the year prior to any proposed acquisition would be subject to MOFCOM merger control review.  As a result, many of the transactions we may undertake could be subject to MOFCOM merger review.  Complying with the requirements of the relevant regulations to complete such transactions could be time-consuming, and any required approval processes, including approval from MOFCOM, may delay or inhibit our ability to complete such transactions, which could affect our ability to expand our business or maintain our market share.  In addition, MOFCOM has not accepted antitrust filings for any transaction involving parties that adopt a variable interest entity structure.  If MOFCOM’s practice remains unchanged, our ability to carry out our investment and acquisition strategy may be materially and adversely affected and there may be significant uncertainty as to whether we will be able to complete large acquisitions in the future in a timely manner or at all.  

PRC regulations relating to investments in offshore companies by PRC residents may subject our PRC-resident beneficial owners or our PRC subsidiaries to liability or penalties, limit our ability to inject capital into our PRC subsidiaries or limit our PRC subsidiaries’ ability to increase their registered capital or distribute profits.  

SAFE promulgated the Circular on Relevant Issues Concerning Foreign Exchange Control on Domestic Residents’ Offshore Investment and Financing and Roundtrip Investment through Special Purpose Vehicles, or the SAFE Circular 37, on July 4, 2014, which replaced the former circular commonly known as “SAFE Circular 75” promulgated by SAFE on October 21, 2005.  SAFE Circular 37 requires PRC residents to register with local branches of SAFE in connection with their direct establishment or indirect control of an offshore entity, for the purpose of overseas investment and financing, with such PRC residents’ legally owned assets or equity interests in domestic enterprises or offshore assets or interests, referred to in SAFE Circular 37 as a “special purpose vehicle.”  SAFE Circular 37 further requires amendment to the registration in the event of any significant changes with respect to the special purpose vehicle, such as increase or decrease of capital contributed by PRC individuals, share transfer or exchange, merger, division or other material event.  In the event that a PRC shareholder holding interests in a special purpose vehicle fails to fulfill the required SAFE registration, the PRC subsidiaries of that special purpose vehicle may be prohibited from making profit distributions to the offshore parent and from carrying out subsequent cross-border foreign exchange activities, and the special purpose vehicle may be restricted in its ability to contribute additional capital into its PRC subsidiary.  Moreover, failure to comply with the various SAFE registration requirements described above could result in liability under PRC law for evasion of foreign exchange controls.  

27


 

We have notified substantial beneficial owners of ordinary shares who we know are PRC residents of their filing obligation, and are aware that Ms. Zoe Wang and Mr. Leo Zeng have each completed the necessary registration with the local SAFE branch or qualified banks as required by SAFE Circular 37.  However, we may not at all times be aware of the identities of all of our beneficial owners who are PRC residents.  To our knowledge, some of our beneficial owners who are PRC residents have not completed the necessary registration as required by SAFE Circular 37.  We do not have control over our beneficial owners and cannot assure you that all of our PRC-resident beneficial owners will comply with SAFE Circular 37 and subsequent implementation rules.  The failure of our beneficial owners who are PRC 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 PRC residents to comply with the registration procedures set forth in SAFE Circular 37 and subsequent implementation rules, may subject such beneficial owners or our PRC subsidiaries to fines and legal sanctions.  Furthermore, since SAFE Circular 37 was recently promulgated and it is unclear how this regulation, and any future regulation concerning offshore or cross-border transactions, will be interpreted, amended and implemented by the relevant PRC governmental authorities, we cannot predict how these regulations will affect our business operations or future strategy.  Failure to register or comply with relevant requirements may also limit our ability to contribute additional capital to our PRC subsidiaries and limit our PRC 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.  

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

Pursuant to SAFE Circular 37, PRC residents who participate in share incentive plans in overseas non-publicly listed companies may submit applications to SAFE or its local branches for the foreign exchange registration with respect to offshore special purpose companies.  Our directors, executive officers and other employees who are PRC citizens or who have resided in the PRC for a continuous period of not less than one year and who have been granted restricted shares, RSUs or options may follow SAFE Circular 37 to apply for the foreign exchange registration before our company becomes an overseas listed company.  We and our directors, executive officers and other employees who are PRC citizens or who have resided in the PRC for a continuous period of not less than one year and who have been granted restricted shares, RSUs or options will be subject to the Notice on Issues Concerning the Foreign Exchange Administration for Domestic Individuals Participating in Stock Incentive Plan of Overseas Publicly Listed Company, issued by SAFE in February 2012, according to which, employees, directors, supervisors and other management members participating in any stock incentive plan of an overseas publicly listed company who are PRC citizens or who are non-PRC citizens residing in China for a continuous period of not less than one year, subject to limited exceptions, are required to register with SAFE through a domestic qualified agent, which could be a PRC subsidiary of such overseas listed company, and complete certain other procedures.  Failure to complete the SAFE registrations may subject them to fines and legal sanctions and may also limit their ability to make payment under our equity incentive plans or receive dividends or sales proceeds related thereto, or our ability to contribute additional capital into our wholly foreign-owned enterprises in China and limit our wholly foreign-owned enterprises’ ability to distribute dividends to us.  We also face regulatory uncertainties that could restrict our ability to adopt additional equity incentive plans for our directors and employees under PRC law.  

In addition, the State Administration for Taxation has issued circulars concerning employee share options or restricted shares.  Under these circulars, employees working in the PRC who exercise share options, or whose restricted shares or RSUs vest, will be subject to PRC individual income tax.  The PRC subsidiaries of an overseas listed company have obligations to file documents related to employee share options or restricted shares with relevant tax authorities and to withhold individual income taxes of those employees related to their share options, restricted shares or RSUs.  Although we currently withhold income tax from our PRC employees in connection with their exercise of options and the vesting of their restricted shares and RSUs, if the employees fail to pay, or the PRC subsidiaries fail to withhold, their income taxes according to relevant laws, rules and regulations, the PRC subsidiaries may face sanctions imposed by the tax authorities or other PRC governmental authorities.  

We rely to a significant extent on dividends and other distributions on equity paid by our principal operating subsidiaries to fund offshore cash and financing requirements.  

We are a holding company and rely to a significant extent on dividends and other distributions on equity paid by our principal operating subsidiaries and on remittances from our variable interest entity, for our offshore cash and financing requirements, including the funds necessary to pay dividends and other cash distributions to our shareholders, fund inter-company loans, service any debt we may incur outside China and pay our expenses.  The laws, rules and regulations applicable to our PRC subsidiaries and certain other subsidiaries permit payments of dividends only out of their retained earnings, if any, determined in accordance with applicable accounting standards and regulations.  

28


 

Under PRC laws, rules and regulations, each of our subsidiaries incorporated in China is required to set aside at least 10% of its after-tax profits each year, after making up for previous years’ accumulated losses, if any, to fund certain statutory reserves, until the aggregate amount of such fund reaches 50% of its registered capital.  As a result of these laws, rules and regulations, our subsidiaries incorporated in China are restricted in their ability to transfer a portion of their respective net assets to their shareholders as dividends.  In addition, registered share capital and capital reserve accounts are also restricted from withdrawal in the PRC, up to the amount of net assets held in each operating subsidiary.  As of December 31, 2017, 2018 and 2019, these restricted assets totaled US$36.4 million, US$34.9 million and US$34.6 million, respectively.

Limitations on the ability of the variable interest entities to make remittance to the wholly foreign-owned enterprises to pay dividends to us could limit our ability to access cash generated by the operations of our variable interest entity, including to make investments or acquisitions that could be beneficial to our businesses, pay dividends to our shareholders or otherwise fund and conduct our business.

We may be treated as a resident enterprise for PRC tax purposes under the PRC Enterprise Income Tax Law, and we may therefore be subject to PRC income tax on our global income.  

Under the PRC Enterprise Income Tax Law and its implementing rules, both of which came into effect on January 1, 2008 and were last amended on December 29, 2018, enterprises established under the laws of jurisdictions outside China with “de facto management bodies” located in China may be considered PRC tax resident enterprises for tax purposes and may be subject to the PRC enterprise income tax at the rate of 25% on their global income.  “De facto management body” refers to 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 SAT issued the Notice Regarding the Determination of Chinese-Controlled Offshore-Incorporated Enterprises as PRC Tax Resident Enterprises on the Basis of De Facto Management Bodies, or the Circular 82, on April 22, 2009.  Circular 82 provides certain specific criteria for determining whether the “de facto management body” of a Chinese-controlled offshore-incorporated enterprise is located in China.  Although Circular 82 only applies to offshore enterprises controlled by PRC enterprises, not those controlled by individuals or foreign enterprises, the determining criteria set forth in Circular 82 may reflect the SAT’s general position on how the “de facto management body” test should be applied in determining the tax resident status of offshore enterprises, regardless of whether they are controlled by PRC enterprises.  If we were to be considered a PRC resident enterprise, we would be subject to PRC enterprise income tax at the rate of 25% on our global income, and our profitability and cash flow may be materially reduced as a result of our global income being taxed under the Enterprise Income Tax Law.  We believe that none of our entities outside China is a PRC resident enterprise for PRC tax purposes.  However, the tax resident status of an enterprise is subject to determination by the PRC tax authorities and uncertainties remain with respect to the interpretation of the term “de facto management body.”  

Dividends payable to our foreign investors and gains on the sale of our ADSs or Class A ordinary shares by our foreign investors may be subject to PRC tax.  

Under the Enterprise Income Tax Law and its implementation regulations issued by the State Council, a 10% PRC withholding tax is applicable to dividends payable to investors that are non-resident enterprises, which do not have an establishment or place of business in the PRC or which have such establishment or place of business but the dividends are not effectively connected with such establishment or place of business, to the extent such dividends are derived from sources within the PRC.  Any gain realized on the transfer of ADSs or Class A ordinary shares by such investors is also subject to PRC tax at a current rate of 10% which in the case of dividends will be withheld at source if such gain is regarded as income derived from sources within the PRC.  If we are deemed a PRC resident enterprise, dividends paid on our Class A ordinary shares or ADSs, and any gain realized from the transfer of our Class A ordinary shares or ADSs, may be treated as income derived from sources within the PRC and may as a result be subject to PRC taxation.  Furthermore, if we are deemed a PRC resident enterprise, dividends payable to individual investors who are non-PRC residents and any gain realized on the transfer of ADSs or Class A ordinary shares by such investors may be subject to PRC tax at a current rate of 20%.  Any PRC tax liability may be reduced under applicable tax treaties.  However, it is unclear whether holders of our ADSs or Class A ordinary shares would be able to claim the benefit of income tax treaties or agreements entered into between China and other countries or areas if we are considered a PRC resident enterprise.  If dividends payable to our non-PRC investors or gains from the transfer of our ADSs or Class A ordinary shares by such investors are subject to PRC tax, the value of your investment in our ADSs or Class A ordinary shares may decline significantly.  

29


 

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

On February 3, 2015, the SAT issued the Announcement on Several Issues Concerning the Enterprise Income Tax on Indirect Transfer of Assets by Non-Resident Enterprises, or the SAT Circular 7.  The SAT Circular 7 extends its tax jurisdiction to transactions involving the transfer of taxable assets through offshore transfer of a foreign intermediate holding company.  In addition, SAT Circular 7 has introduced safe harbors for internal group restructurings and the purchase and sale of equity through a public securities market.  SAT Circular 7 also brings challenges to both foreign transferor and transferee (or other person who is obligated to pay for the transfer) of taxable assets.  On October 17, 2017, the SAT issued the Announcement on Issues Relating to Withholding at Source of Income Tax of Non-resident Enterprises, or the SAT Circular 37, which came into effect on December 1, 2017.  The SAT Circular 37 further clarifies the practice and procedure of the withholding of non-resident enterprise income tax.  

Where a non-resident enterprise transfers taxable assets indirectly by disposing of the equity interests of an overseas holding company, which is an Indirect Transfer, the non-resident enterprise as either transferor or transferee, or the PRC entity that directly owns the taxable assets, may report such Indirect Transfer to the relevant tax authority.  Using a “substance over form” principle, the PRC tax authority may disregard the existence of the overseas holding company if it lacks a reasonable commercial purpose and was established for the purpose of reducing, avoiding or deferring PRC tax.  As a result, gains derived from such Indirect Transfer may be subject to PRC enterprise income tax, and the transferee or other person who is obligated to pay for the transfer is obligated to withhold the applicable taxes, currently at a rate of 10% for the transfer of equity interests in a PRC resident enterprise.  Both the transferor and the transferee may be subject to penalties under PRC tax laws if the transferee fails to withhold the taxes and the transferor fails to pay the taxes.  

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

Restrictions on currency exchange may limit our ability to utilize our revenue effectively.  

A portion of our revenue is denominated in Renminbi.  The Renminbi is currently convertible under the “current account,” which includes dividends, trade and service-related foreign exchange transactions, but not under the “capital account,” which includes foreign direct investment and loans, including loans we may secure from our onshore subsidiaries or variable interest entity.  Currently, our PRC subsidiaries, which are wholly foreign-owned enterprises, may purchase foreign currency for settlement of “current account transactions,” including payment of dividends to us, without the approval of SAFE by complying with certain procedural requirements.  However, the relevant PRC governmental authorities may limit or eliminate our ability to purchase foreign currencies in the future for current account transactions.  Since a significant amount of our future revenue will be denominated in Renminbi, any existing and future restrictions on currency exchange may limit our ability to utilize revenue generated in Renminbi to fund our business activities outside of the PRC or pay dividends in foreign currencies to our shareholders, including holders of our ADSs.  Foreign exchange transactions under the capital account remain subject to limitations and require approvals from, or registration with, SAFE and other relevant PRC governmental authorities.  This could affect our ability to obtain foreign currency through debt or equity financing for our subsidiaries and our variable interest entity.

The audit report included in this annual report on Form 20-F is prepared by an auditor who is not inspected by the Public Company Accounting Oversight Board and, as such, our investors are deprived of the benefits of such inspection and are exposed to uncertainties.  

Our auditor, the independent registered public accounting firm that issued the audit reports included elsewhere in this annual report on Form 20-F, as an auditor of companies that are traded publicly in the United States and a firm registered with the Public Company Accounting Oversight Board (United States), or PCAOB, is subject to laws in the United States pursuant to which the PCAOB conducts regular inspections to assess the auditor’s compliance with applicable professional standards.  Our auditor is located in, and organized under the laws of, the PRC, which is a jurisdiction where the PCAOB has been unable to conduct inspections without the approval of the Chinese authorities.  In May 2013, the PCAOB announced that it had entered into a Memorandum of Understanding on Enforcement Cooperation with the China Securities Regulatory Commission, or CSRC and the PRC Ministry of Finance, which establishes a cooperative framework between the parties for the production and exchange of audit documents relevant

30


 

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 the PCAOB and audit Chinese companies that trade on U.S. exchanges.  

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.  On November 4, 2019, the SEC announced that the SEC and the PCAOB had dialogue with the “Big Four” accounting firms, which emphasized the need for effective and consistent global firm oversight of member firms, including those operating in China.  In a statement issued on December 9, 2019, the SEC reiterated concerns over the inability of the PCAOB to conduct inspections of the audit firm work papers with respect to U.S.-listed companies that have operations in China, and emphasized the importance of audit quality in emerging markets, including China.  On February 19, 2020, the SEC and the PCAOB further issued a joint statement on continued dialogue with “Big Four” accounting firms on audit quality in China, highlighting that the PCAOB continues to be prevented from inspecting the audit work and practices of PCAOB-registered audit firms in China.  On April 21, 2020, the SEC and the PCAOB issued a second joint statement, reminding investors that in many emerging markets, including China, there is substantially greater risk that disclosures will be incomplete or misleading and, in the event of investor harm, substantially less access to recourse, in comparison to U.S. domestic companies, and stressing again the PCAOB’s inability to inspect audit work papers in China and its potential harm to investors.  However, it remains unclear what further actions, if any, the SEC and the PCAOB will take to address the problem.

This lack of PCAOB inspections in China prevents the PCAOB from fully evaluating audits and quality control procedures of our independent registered public accounting firm.  As a result, we and investors in our ADSs are 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 our independent registered public accounting firm’s audit procedures or quality control procedures as compared to auditors outside China that are subject to PCAOB inspections, which could cause investors and potential investors in our securities to lose confidence in our audit procedures and reported financial information and the quality of our financial statements.  

In addition, as part of a continued regulatory focus in the United States on access to audit and other information currently protected by national laws, in particular China’s, and in the context of broader concerns over accounting and disclosure practices, in June 2019, a bipartisan group of lawmakers introduced bills in both houses of Congress that would lead to eventual delisting from U.S. stock exchanges of issuers whose financial statements are audited by accounting firm branches or offices that are not subject to PCAOB inspection.  On May 20, 2020, the U.S. Senate passed the Holding Foreign Companies Accountable Act, which in effect would result in the delisting of non-U.S. companies (particularly from China) whose financial statements have, for a period of three years after the Act comes into effect, been audited by an accounting firm branch or office that is not subject to PCAOB inspection.  If  this bill is passed by the House of Representatives and become law, or were other legislative or regulatory action taken to restrict the ability of Chinese issuers to list, or remain listed, in the United States, it could cause investor uncertainty for affected issuers, including us, and the market price of our ADSs could be adversely affected.  It is unclear if this bill will be enacted and, if it is, what the ultimate resolution, over which we have no control, of the PCAOB inspection issue will be.  Concurrently, Nasdaq has proposed to codify its existing discretion in considering whether to deny initial or continued listing or to apply more stringent criteria when the auditor of a Nasdaq-listed company has not been, or cannot be, inspected by the PCAOB or the auditor does not demonstrate sufficient resources, geographic reach or experience as it relates to the audit.  Nasdaq also has proposed to clarify that it may use its discretionary authority to impose additional or more stringent criteria for continued listing where the local jurisdiction restricts access by U.S. securities regulators to information.

Furthermore, on June 4, 2020, President Trump issued a memorandum directing the President’s Working Group on Financial Markets, or PWG, which is chaired by the Secretary of the Treasury and includes the Chairman of the Board of Governors of the Federal Reserve System, the Chairman of the SEC and the Chairman of the Commodity Futures Trading Commission, to convene to discuss the risks faced by U.S. investors in Chinese companies and companies with significant operations in China that are listed on U.S. stock exchanges related to the Chinese government’s position on the inability of the PCAOB to conduct inspections of auditors in China.  The memorandum also directs the PWG to submit to the President a report within 60 days with recommendations for actions (i) the U.S. executive branch may take to protect investors in U.S. financial markets from the failure of the Chinese government to allow PCAOB-registered audit firms to comply with U.S. securities laws and investor protections; (ii) the SEC or PCAOB should take, including inspection or enforcement actions, with respect to PCAOB-registered audit firms that fail to provide requested audit working papers or otherwise fail to comply with U.S. securities laws; and (iii) the SEC or any other U.S. federal agency or department should take as a means to protect U.S. investors in Chinese companies, or companies from other countries that do not comply with U.S. securities laws and investor protections, including initiating a notice of proposed rulemaking that would set new listing rules or governance safeguards.  It is uncertain what recommendations the PWG may ultimately make; however, as with the proposed legislation described above, such recommendations could cause investor uncertainty for affected issuers, including us, adversely affect the market price of our ADSs and result in prohibitions on the trading of our ADSs on U.S. national securities, among other things.  

31


 

Proceedings instituted by the SEC against certain PRC-based accounting firms, including the affiliate of our independent registered public accounting firm, and/or any related adverse regulatory development in the PRC, could result in our financial statements being determined to not be in compliance with the requirements of the Exchange Act.  

In December 2012, the SEC instituted administrative proceedings against the Big Four PRC-based accounting firms, including our independent registered public accounting firm, alleging that these firms had violated U.S. securities laws and the SEC’s rules and regulations thereunder by failing to provide to the SEC the firms’ audit work papers with respect to certain PRC-based companies that are publicly traded in the United States.  

On January 22, 2014, the administrative law judge presiding over the matter rendered an initial decision that each of the firms had violated the SEC’s rules of practice by failing to produce audit papers and other documents to the SEC.  The initial decision censured each of the firms and barred them from practicing before the SEC for a period of six months.  

On February 6, 2015, the four China-based accounting firms each agreed to a censure and to pay a fine to the SEC to settle the dispute and avoid suspension of their ability to practice before the SEC and audit U.S.-listed companies.  The settlement required the firms to follow detailed procedures and to seek to provide the SEC with access to Chinese firms’ audit documents via the CSRC.  Under the terms of the settlement, the underlying proceeding against the four China-based accounting firms was deemed dismissed with prejudice four years after entry of the settlement.  The four-year mark occurred on February 6, 2019.  While we cannot predict if the SEC will further challenge the four China-based accounting firms’ compliance with U.S. law in connection with U.S. regulatory requests for audit work papers or if the results of such a challenge would result in the SEC imposing penalties such as suspensions, if the accounting firms are subject to additional remedial measures, our ability to file our financial statements in compliance with SEC requirements could be impacted.  A determination that we have not timely filed financial statements in compliance with SEC requirements could ultimately lead to the delisting of our ADSs from the Nasdaq Stock Market or the termination of the registration of our ADSs under the Exchange Act, or both, which would substantially reduce or effectively terminate the trading of our ADSs in the United States.  See “— The audit report included in this annual report on Form 20-F is prepared by an auditor who is not inspected by the Public Company Accounting Oversight Board and, as such, our investors are deprived of the benefits of such inspection and are exposed to uncertainties” for more information.  

It may be difficult for overseas regulators to conduct investigation or collect evidence within China.

Shareholder claims or regulatory investigation that are common in the United States generally are difficult to pursue as a matter of law or practicality in China. For example, in China, there are significant legal and other obstacles to providing information needed for regulatory investigations or litigation initiated outside China.  Although the authorities in China may establish a regulatory cooperation mechanism with the securities regulatory authorities of another country or region to implement cross-border supervision and administration, such cooperation with the securities regulatory authorities in the Unities States may not be efficient in the absence of mutual and practical cooperation mechanism. Furthermore, according to Article 177 of the PRC Securities Law, or Article 177, which became effective in March 2020, no overseas securities regulator is allowed to directly conduct investigation or evidence collection activities within the territory of the PRC.  While detailed interpretation of or implementation rules under Article 177 have yet to be promulgated, the inability for an overseas securities regulator to directly conduct investigation or evidence collection activities within China may further increase difficulties faced by you in protecting your interests.

Failure to make adequate contributions to various employee benefit plans and withhold individual income tax on employees’ salaries as required by PRC regulations may subject us to penalties.  

Companies operating in China are required to participate in various government-mandated employee benefit contribution plans, including certain social insurance, housing funds and other welfare-oriented payment obligations, and to contribute to the plans in amounts equal to certain percentages of salaries, including bonuses and allowances, of our employees up to a maximum amount specified by the local government from time to time at locations where we operate our businesses.  The requirement of employee benefit contribution plans has not been implemented consistently by the local governments in China given the different levels of economic development in different locations.  Companies operating in China are also required to withhold individual income tax on employees’ salaries based on the actual salary of each employee upon payment.  We may be subject to late fees and fines in relation to the underpaid employee benefits and under-withheld individual income tax, and, if so, our financial condition and results of operations may be adversely affected.  

32


 

Risks Related to Our ADSs

The trading price of our ADSs may be volatile, which could result in substantial losses to you.  

The trading price of our ADSs is volatile and could fluctuate widely due to factors beyond our control.  This may happen because of broad market and industry factors, like the performance and fluctuation in the market prices or the underperformance or deteriorating financial results of other listed companies based in China.  The securities of some of these companies have experienced significant volatility since their initial public offerings, including, in some cases, substantial price declines in the trading prices of their securities.  The trading performances of other Chinese companies’ securities after their offerings, including technology companies and transaction service platforms, may affect the attitudes of investors toward Chinese companies listed in the United States, which consequently may impact the trading performance of our ADSs, regardless of our actual operating performance.  In addition, any negative news or perceptions about inadequate corporate governance practices or fraudulent accounting, corporate structure or matters of other Chinese companies may also negatively affect the attitudes of investors towards Chinese companies in general, including us, regardless of whether we have conducted any inappropriate activities.  Furthermore, securities markets may from time to time experience significant price and volume fluctuations that are not related to our operating performance, such as the large decline in share prices in the United States, China and other jurisdictions in late 2008, early 2009, the second half of 2011 and in 2015, including as a result of concerns over the impact of the COVID-19 pandemic, which may have a material adverse effect on the trading price of our ADSs.  

In addition to the above factors, the price and trading volume of our ADSs may be highly volatile due to multiple factors, including the following:

 

regulatory developments affecting us or our industry;

 

announcements of studies and reports relating to the quality of our credit offerings or those of our competitors;

 

changes in the economic performance or market valuations of other transaction service platforms;

 

actual or anticipated fluctuations in our quarterly results of operations and changes or revisions of our expected results;

 

changes in financial estimates by securities research analysts;

 

conditions in the market for health and wellness products;

 

announcements by us or our competitors of new product and service offerings, acquisitions, strategic relationships, joint ventures, capital raisings or capital commitments;

 

additions to or departures of our senior management;

 

fluctuations of exchange rates between the Renminbi and the U.S. dollar;

 

release or expiry of lock-up or other transfer restrictions on our outstanding shares or ADSs; and

 

sales or perceived potential sales of additional Class A ordinary shares or ADSs.  

Substantial future sales or perceived potential sales of our ADSs, Class A ordinary shares or other equity securities in the public market could cause the price of our ADSs to decline significantly.  

Sales of our ADSs, Class A ordinary shares or other equity securities in the public market, or the perception that these sales could occur, could cause the market price of our ADSs to decline significantly.  As of May 31, 2020, we had 66,343,407 Class A ordinary shares outstanding, including 40,287,140 Class A ordinary shares represented by ADSs.  All of our ADSs are freely transferable by persons other than our “affiliates” without restriction or additional registration under the U.S. Securities Act of 1933, as amended, or the Securities Act.  

33


 

If securities or industry analysts do not publish research or publish inaccurate or unfavorable research about our business, the market price for our ADSs and trading volume could decline.  

It is our policy not to offer guidance on earnings.  The trading market for our ADSs depends in part on the research and reports that securities or industry analysts publish about us or our business.  If research analysts do not establish and maintain adequate research coverage or if one or more of the analysts who cover us downgrade our ADSs or publish inaccurate or unfavorable research about our business, the market price for our ADSs would likely decline.  If one or more of these analysts cease coverage of our company or fail to publish reports on us regularly, we could lose visibility in the financial markets, which, in turn, could cause the market price or trading volume for our ADSs to decline significantly.  

Our dual-class share structure with different voting rights limits our investors’ ability to influence corporate matters and could discourage others from pursuing any change of control transactions that holders of our Class A ordinary shares and holders of our ADSs may view as beneficial.  

We have a dual-class share structure such that our ordinary shares consist of Class A ordinary shares and Class B ordinary shares.  In respect of matters requiring the votes of shareholders, holders of Class A ordinary shares are entitled to one vote per share, while holders of Class B ordinary shares are entitled to 10 votes per share.  One (1) of our ADSs represents four (4) of our Class A ordinary shares.  Each Class B ordinary share is convertible into one Class A ordinary share at any time by the holder thereof, while Class A ordinary shares are not convertible into Class B ordinary shares under any circumstances.  

As of May 31, 2020, Ms. Zoe Wang and Mr. Leo Zeng beneficially own all of our issued and outstanding Class B ordinary shares.  These Class B ordinary shares constitute approximately 52.2% of our total issued and outstanding share capital and 91.6% of the aggregate voting power of our total issued and outstanding share capital as of May 31, 2020, due to the disparate voting powers associated with our dual-class share structure.  See “Item 6.  Directors, Senior Management and Employees – E.  Share Ownership.” As a result of the dual-class share structure and the concentration of ownership, holders of Class B ordinary shares have considerable influence over matters such as decisions regarding mergers, consolidations and the sale of all or substantially all of our assets, election of directors and other significant corporate actions.  Such holders may take actions that are not in the best interest of us or our other shareholders.  This concentration of ownership may discourage, delay or prevent a change in control of our company, which could have the effect of depriving our other shareholders of the opportunity to receive a premium for their shares as part of a sale of our company and may reduce the price of our ADSs.  This concentrated control limits our investors’ ability to influence corporate matters and could discourage others from pursuing any potential merger, takeover or other change of control transactions that holders of Class A ordinary shares and holders of our ADSs may view as beneficial.

As a foreign private issuer, we are permitted to, and we will continue to, rely on exemptions from certain Nasdaq corporate governance standards applicable to domestic U.S. issuers.  This may afford less protection to holders of our Class A ordinary shares and holders of the ADSs than they would enjoy if we were a domestic U.S. company.  

We are exempted from certain corporate governance requirements of Nasdaq by virtue of being a foreign private issuer.  We are required to provide a brief description of the significant differences between our corporate governance practices and the corporate governance practices required to be followed by domestic U.S. companies listed on the Nasdaq Stock Market.  The standards applicable to us are considerably different than the standards applied to domestic U.S. issuers.  Currently, we plan to rely on home country practice with respect to our corporate governance.  Specifically, we do not plan to (i) have a majority of the board be independent; (ii) have a compensation committee or a nominations or corporate governance committee consisting entirely of independent directors; or (iii) have an audit committee be composed of at least three members.  These practices may afford less protection to shareholders than they would enjoy if we complied fully with the Nasdaq corporate governance requirements.  

As a foreign private issuer, we are exempt from certain disclosure requirements under the Exchange Act, which may afford less protection to our shareholders than they would enjoy if we were a domestic U.S. company.  

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

 

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

 

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

34


 

 

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

 

the selective disclosure rules by issuers of material nonpublic information under Regulation FD.  

We intend to continue to publish our results on a quarterly basis as press releases, distributed pursuant to the rules and regulations of the Nasdaq Stock Market.  Press releases relating to financial results and material events will also be furnished to the SEC on Form 6-K.  However, the information we are required to file with or furnish to the SEC is less extensive and less timely compared to that required to be filed with the SEC by U.S. domestic issuers.  As a result, our investors may not be afforded the same protections or information that would be made available to our investors were they investing in a U.S. domestic issuer.  

As an emerging growth company, we are exempt from certain reporting requirements.  

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

The JOBS Act also provides that an emerging growth company does not need to comply with any new or revised financial accounting standards until such date that a private company is otherwise required to comply with such new or revised accounting standards.  We have elected not to “opt out” of such extended transition period, which means that when a standard is issued or revised and it has different application dates for public or private companies, we will adopt the new or revised standard at the time private companies adopt the new or revised standard and will do so until such time that we either (i) irrevocably elect to “opt out” of such extended transition period or (ii) no longer qualify as an emerging growth company.  As a result, our operating results and financial statements may not be comparable to the operating results and financial statements of other companies who have adopted the new or revised accounting standards.  

You may face difficulties in protecting your interests, and your ability to protect your rights through the U.S. federal courts may be limited because we are incorporated under Cayman Islands law, we conduct substantially all of our operations in China and most of our directors and all of our executive officers reside outside the United States.  

We are incorporated in the Cayman Islands and conduct substantially all of our operations in China through our wholly foreign-owned enterprises and our variable interest entity.  Most of our directors and all of our executive officers reside outside the United States and a substantial portion of their assets are located outside of the United States.  As a result, it may be difficult or impossible for you to bring an action against us or against these individuals in the Cayman Islands or in China in the event that you believe that your rights have been infringed under the securities laws of the United States or otherwise.  Even if you are successful in bringing an action of this kind, the laws of the Cayman Islands and China may render you unable to enforce a judgment against our assets or the assets of our directors and officers.  There is no statutory recognition in the Cayman Islands of judgments obtained in the United States or China, although the courts of the Cayman Islands will generally recognize and enforce a non-penal judgment of a foreign court of competent jurisdiction without retrial on the merits.  

Our corporate affairs are governed by our memorandum and articles of association, as amended and restated from time to time, and by the Companies Law (2020 Revision) (as amended) and common law of the Cayman Islands.  The rights of shareholders to take legal action against us and our directors, actions by minority shareholders and the fiduciary responsibilities of our directors are to a large extent governed by the common law of the Cayman Islands.  The common law of the Cayman Islands is derived in part from comparatively limited judicial precedent in the Cayman Islands as well as from English common law, which provides persuasive, but not binding, authority in a court in the Cayman Islands.  The rights of our shareholders and the fiduciary responsibilities of our directors under Cayman Islands law are not as clearly established as they would be under statutes or judicial precedents in the United States.  In particular, the Cayman Islands has a less developed body of securities laws than the United States and provides significantly less protection to investors.  In addition, shareholders in Cayman Islands companies may not have standing to initiate a shareholder derivative action in U.S. federal courts.  

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

35


 

You, as holders of our ADSs, may have fewer rights than holders of our Class A ordinary shares and must act through the depositary to exercise those rights.  

Holders of ADSs do not have the same rights of our shareholders and may only exercise the voting rights with respect to the underlying Class A ordinary shares in accordance with the provisions of the deposit agreement.  Under our memorandum and articles of association, the minimum notice period required to convene a general meeting is seven days.  When a general meeting is convened, you may not receive sufficient notice of a shareholders’ meeting to permit you to withdraw your Class A ordinary shares to allow you to cast your vote with respect to any specific matter.  In addition, the depositary and its agents may not be able to send voting instructions to you or carry out your voting instructions in a timely manner.  We will make all reasonable efforts to cause the depositary to extend voting rights to you in a timely manner, but we cannot assure you that you will receive the voting materials in time to ensure that you can instruct the depositary to vote your ADSs.  Furthermore, the depositary and its agents will not be responsible for any failure to carry out any instructions to vote, for the manner in which any vote is cast or for the effect of any such vote.  As a result, you may not be able to exercise your right to vote and you may lack recourse if your ADSs are not voted as you requested.  In addition, in your capacity as an ADS holder, you will not be able to call a shareholders’ meeting.  

You may be subject to limitations on transfer of your ADSs.  

Your ADSs are transferable on the books of the depositary.  However, the depositary may close its transfer books at any time or from time to time when it deems expedient in connection with the performance of its duties.  In addition, the depositary may refuse to deliver, transfer or register transfers of ADSs generally when our books or the books of the depositary are closed, or at any time if we or the depositary deems it advisable to do so because of any requirement of law or of any government or governmental body, or under any provision of the deposit agreement, or for any other reason.  

You may not receive distributions on our Class A ordinary shares or any value for such Class A ordinary shares if it is illegal or impractical to make them available to you.  

The depositary of our ADSs has agreed to pay you the cash dividends or other distributions it or the custodian for our ADSs receives on our Class A ordinary shares or other deposited securities after deducting its fees and expenses.  You will receive these distributions in proportion to the number of our Class A ordinary shares that your ADSs represent.  However, the depositary is not responsible for making such payments or distributions if it is unlawful or impractical to make a distribution available to any holders of ADSs.  For example, it would be unlawful to make a distribution to a holder of ADSs if it consists of securities that require registration under the Securities Act but that are not properly registered or distributed pursuant to an applicable exemption from registration.  The depositary is not responsible for making a distribution available to any holders of ADSs if any government approval or registration required for such distribution cannot be obtained after reasonable efforts made by the depositary.  We have no obligation to take any other action to permit the distribution of our ADSs, Class A ordinary shares, rights or anything else to holders of our ADSs.  This means that you may not receive the distributions we make on our Class A ordinary shares or any value for them if it is illegal or impractical for us to make them available to you.  These restrictions may materially reduce the value of your ADSs.  

Your rights to pursue claims against the depositary as a holder of ADSs are limited by the terms of the deposit agreement and the deposit agreement may be amended or terminated without your consent.  

Under the deposit agreement, any action or proceeding against or involving us or the depositary, arising out of or based upon the deposit agreement or the transactions contemplated thereby or by virtue of owning the ADSs (including any such action or proceeding that may arise under the U.S. federal securities laws), may only be instituted in a state or federal court in the city of New York, and you, as a holder of our ADSs, will have irrevocably waived any objection which you may have to the laying of venue of any such proceeding, and irrevocably submitted to the exclusive jurisdiction of such courts in any such action or proceeding.  Such exclusive jurisdiction may, among other things, discourage lawsuits against or involving us or the depositary, lead to increased costs to bring a claim or limit your ability to bring a claim in a judicial forum you find favorable.  Also, we may amend or terminate the deposit agreement without your consent.  If you continue to hold your ADSs after an amendment to the deposit agreement, you will be deemed to have agreed to be bound by the deposit agreement as amended, unless such amendment is found to be invalid under any applicable laws, including the U.S. federal securities laws.

36


 

ADSs holders may not be entitled to a jury trial with respect to claims arising under the deposit agreement, which could result in less favorable outcomes to the plaintiffs in any such action.  

The deposit agreement governing the ADSs representing our Class A Ordinary Shares provides that, to the fullest extent permitted by applicable law, ADSs holders waive the right to a jury trial of any claim they may have against us or the depositary arising out of or relating to our shares, the ADSs or the deposit agreement, including any claim under the U.S. federal securities laws.  The waiver to right to a jury trial of the deposit agreement is not intended to be deemed a waiver by any holder or beneficial owner of ADSs of our or the depositary’s compliance with the U.S. federal securities laws and the rules and regulations promulgated thereunder.  

If we or the depositary oppose a jury trial demand based on the waiver, the court would determine whether the waiver was enforceable based on the facts and circumstances of that case in accordance with the applicable state and federal law.  The enforceability of a contractual pre-dispute jury trial waiver in connection with claims arising under the federal securities laws has not been finally adjudicated by the United States Supreme Court.  However, we believe that a contractual pre-dispute jury trial waiver provision is generally enforceable, including under the laws of the State of New York, which govern the deposit agreement.  In determining whether to enforce a contractual pre-dispute jury trial waiver provision, courts will generally consider whether a party knowingly, intelligently and voluntarily waived the right to a jury trial.  We believe that this is the case with respect to the deposit agreement and the ADSs.  It is advisable that you consult legal counsel regarding the jury waiver provision before investing in the ADSs.  

If you or any other holders or beneficial owners of ADSs bring a claim against us or the depositary in connection with matters arising under the deposit agreement or the ADSs, including claims under federal securities laws, you or such other holder or beneficial owner may not be entitled to a jury trial with respect to such claims, which may have the effect of limiting and discouraging lawsuits against us and/or the depositary.  If a lawsuit is brought against us and/or the depositary under the deposit agreement, it may be heard only by a judge or justice of the applicable trial court, which would be conducted according to different civil procedures and may result in a different outcome than a trial by jury would have had, including results that could be less favorable to the plaintiffs in any such action.  

Nevertheless, if this jury trial waiver is not permitted by applicable law, an action could proceed under the terms of the deposit agreement with a jury trial.  No condition, stipulation or provision of the deposit agreement or our ADSs serves as a waiver by any holder or beneficial owner of ADSs or by us or the depositary of compliance with any provision of the U.S. federal securities laws and the rules and regulations promulgated thereunder.  

We may incur increased costs as a result of being a public company, particularly when we cease to qualify as an “emerging growth company,” which may strain our resources.  

As a public company, we incur significant legal, accounting and other expenses that we did not incur as a private company.  The Sarbanes-Oxley Act, as well as rules subsequently implemented by the SEC and the Nasdaq Stock Market, imposes various requirements on the corporate governance practices of public companies.  We qualify as an “emerging growth company” pursuant to the JOBS Act.  An emerging growth company may take advantage of specified reduced reporting and other requirements that are otherwise applicable generally to public companies.  These provisions include exemption from the auditor attestation requirement under Section 404 of the Sarbanes-Oxley Act in the assessment of the emerging growth company’s internal control over financial reporting and permission to delay adopting new or revised accounting standards until such time as those standards apply to private companies.  We have elected not to “opt out” of such extended transition period, which means that when a standard is issued or revised and it has different application dates for public or private companies, we will adopt the new or revised standard at the time private companies adopt the new or revised standard and will do so until such time that we either (i) irrevocably elect to “opt out” of such extended transition period or (ii) no longer qualify as an emerging growth company.  

Compliance with these rules and regulations has increased and will continue to increase our legal and financial compliance costs and has made and will continue to make some corporate activities more time-consuming and costly.  When we are no longer an “emerging growth company,” we expect to incur significant expenses and devote substantial management effort toward ensuring compliance with the requirements of Section 404 of the Sarbanes-Oxley Act and the other rules and regulations of the SEC.  In addition, we have incurred additional costs associated with our public company reporting requirements.  It may also be more difficult for us to find qualified persons to serve on our board of directors or as executive officers.  We expect these rules and regulations to increase our legal and financial compliance costs, but we cannot predict or estimate the additional costs we may incur or the timing of such costs.  

37


 

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

Item 4.

Information on the Company

A.

History and Development of the Company

Our Company

Our business commenced operations in December 2011, when our co-founders, Ms. Zoe Wang and Mr. Leo Zeng, established our predecessor, Shanghai ECMOHO Health Biotechnology Co., Ltd., or ECMOHO Shanghai, incorporated under the laws of the PRC.  

In May 2013, we became the exclusive distributor and brand manager in China of our first international brand partner, Puritan’s Pride, a U.S.-based manufacturer of vitamins, minerals, herbs and other nutritional supplements.  We remain Puritan’s Pride’s exclusive distributor and brand manager in China as of today.  

In January 2014, we commenced operation of the Puritan’s Pride cross-border flagship store on Tmall Global.  

In July 2016, we began working with Gerber Baby Products, an established U.S.-based manufacturer and distributor of infant healthcare products.  

In September 2017, we began working with Wyeth Nutrition, an established international brand that focuses on nutrition products for mothers, infants and young children.  

In June 2018, ECMOHO Limited was incorporated under the laws of the Cayman Islands, and ECMOHO (Hong Kong) Health Technology Limited, or ECMOHO Hong Kong, was incorporated under the laws of Hong Kong and wholly owned by ECMOHO Limited.  In July 2018, ECMOHO Hong Kong acquired 97.5% of the equity interest of ECMOHO Shanghai from our co-founders and certain other shareholders of ECMOHO Shanghai.  See “Item 7. Major Shareholders and Related Party Transactions – Related Party Transactions – Transactions with our co-founders” for more information.  

In April 2019, we launched XG Health, our proprietary integrated family health management and service platform, which offers offline retailers and consumers a range of health and wellness products and rich content.  In April 2020, we divested our 60% interest in Xianggui Shanghai, our subsidiary through which we operated the XG Health platform.  See “— Divestment of our interest in the XG Health platform” and “Item 7. Major Shareholders and Related Party Transactions – Related Party Transactions – Divestment of equity interest in Xianggui Shanghai” for more information.

In June 2019, ECMOHO Hong Kong, through an onshore subsidiary, entered into an agreement to acquire the remaining 2.5% of the equity interest of ECMOHO Shanghai from its minority shareholders.  

In November 2019, we completed an initial public offering of 4,675,000 ADSs (including ADSs sold in connection with the over-allotment offering), representing 18,700,000 of our Class A ordinary shares.  Our ADSs commenced trading on the Nasdaq Global Market under the trading symbol “MOHO” on November 8, 2019.  

In the first quarter of calendar year 2020, we entered into various business cooperation arrangements with certain companies to offer digital marketing, data analytics services and other services.  For example, in March 2020, we commenced offering online and offline marketing services to Beingmate Baby & Child Food Co., Ltd. and in April 2020 we commenced offering marketing services to L&P Cosmetic Co., Limited.  

38


 

Divestment of our interest in the XG Health platform  

We developed XG Health, an integrated family health management and service platform that connects consumers and specialty offline retailers with our brand partners and healthcare experts and offers health management plans such as blood pressure control and weight management programs.  These health management plans, prepared by the doctors and nutritionists, contain detailed guidelines on dietary plans and other daily routines and, where relevant, include product recommendations.  Consumers may reach out to these healthcare experts for further inquiries and receive customized non-medical health and wellness recommendations.  XG Health also provides a rich array of carefully selected health and wellness products.  Consumers may purchase these products for themselves or promote these products on social media and earn commissions on an actual sale.  In addition, in mid-2019, we launched an XG Health mobile app for retailers, enabling them to source health and wellness products from us and we rolled out a pilot program to invite owners of specialty stores in “lower-tier” cities, townships and rural area in Anhui Province in China to register on this app, and we plan to expand our offline coverage nationwide.  

We operated XG Health through our PRC-incorporated subsidiary Xianggui Shanghai.  In 2019, sales through our XG Health platform accounted for less than 1.0% of our total net revenues.  In early 2020, during the COVID-19 pandemic, as cities, towns and municipalities across China, including Anhui province, began implementing lockdown and virus containment measures, some specialty stores that had registered on our XG Health app were experiencing financial difficulties and were unable to engage in e-commerce with us.  In April 2020, we divested our 60% equity interests in Xianggui Shanghai to Shanghai Xianggui Health Management Co. Ltd., an entity controlled by our co-founders, for a consideration of RMB 3.4 million (US$487.4 thousand).  See “Item 7. Major Shareholders and Related Party Transactions – Related Party Transactions – Divestment of equity interest in Xianggui Shanghai” for more information.  

Additional Information

Cogency Global Inc. is acting as our company’s authorized representative in the United States.  The address of Cogency Global Inc. is 122 E. 42nd Street, 18th Floor, New York, NY 10168, the United States of America.