View:
United States securities and exchange commission logo
September 19, 2022
Chao Xu
General Counsel
Xiao-I Corporation
7th floor, Building 398, No. 1555 West
Jinshajiang Rd
Shanghai, China 201803
Re: Xiao-I Corporation
Amendment No. 1 to
Draft Registration Statement on Form F-1
Submitted September
2, 2022
CIK No. 0001935172
Dear Mr. Xu:
We have reviewed your amended draft registration statement and
have the following
comments. In some of our comments, we may ask you to provide us with
information so we
may better understand your disclosure.
Please respond to this letter by providing the requested
information and either submitting
an amended draft registration statement or publicly filing your
registration statement on
EDGAR. If you do not believe our comments apply to your facts and
circumstances or do not
believe an amendment is appropriate, please tell us why in your
response.
After reviewing the information you provide in response to these
comments and your
amended draft registration statement or filed registration statement, we
may have additional
comments. Unless we note otherwise, our references to prior comments are
to comments in our
August 5, 2022 letter.
Amendment No. 1 to Draft Registration Statement on Form F-1 submitted
September 2, 2022
Cover Page
1. We note the revisions
made in response to prior comments 1, 2 and 10. Disclosure here
and elsewhere states
that a VIE is an entity that "exercises operational control, bears the
risk of, and enjoys the
rewards normally associated with ownership of the entity." Please
revise to ensure you
refrain from implying that the contractual agreements are equivalent
to equity ownership in
the business of the VIE. In this regard, we note neither the
investors in the
holding company nor the holding company itself have an equity
ownership in, direct
foreign investment in, or control of, through such ownership or
Chao Xu
FirstName LastNameChao Xu
Xiao-I Corporation
Comapany 19,
September NameXiao-I
2022 Corporation
September
Page 2 19, 2022 Page 2
FirstName LastName
investment, the VIE.
2. In your response to prior comment 37 you state that you do not elect
to opt out of the
extended transition period for complying with new or revised financial
accounting
standards; however, on the cover page you indicate that you have
elected not to use the
extended transition period. Please revise for consistency. Also,
revise your disclosures on
pages 26, 69 and F-24 to clearly disclose your election to use the
extended transition
period and to disclose that your financial statements may not be
comparable to companies
that comply with public company effective dates.
3. We note the disclosure you added regarding the Statement of Protocol
signed by the
PCAOB and the CSRC. Please revise to clarify that the PCAOB will be
required to assess
whether it is able to inspect and investigate completely registered
pubic accounting firms
headquartered in China and Hong Kong by the end of 2022.
About this Prospectus
Conventions that apply to this Prospectus, page 1
4. We note the revisions made in response to prior comment 6. In light of
your operations in
Hong Kong, please ensure that disclosure throughout your prospectus
clarifies that the
legal and operational risks associated with operating in China also
apply to operations in
Hong Kong. In this regard, please discuss the commensurate laws and
regulations in
Hong Kong and any risks and consequences to the company associated
with those laws
and regulations. For example, please:
provide additional disclosure related to the enforceability of
civil liabilities in Hong
Kong;
disclose on the cover page how any regulatory actions related
to data security or anti-
monopoly concerns in Hong Kong have or may impact the company s
ability to
conduct its business, accept foreign investments, or list on a
U.S. or foreign
exchange; and
provide risk factor disclosure to explain whether there is any
commensurate laws or
regulations in Hong Kong which result in oversight over data
security and explain
how this oversight impacts the company s business and the
offering and to what
extent the company believes that it is compliant with the
regulations or policies that
have been issued.
5. We note the revisions made in response to prior comment 7. Please
revise your definition
of "'we,' 'us,' or the 'Company'" to exclude the variable interest
entity, Shanghai Xiao-i.
Prospectus Summary
Our History and Corporate Structure, page 7
6. We note your response to prior comment 9. Please revise to disclose
the ownership of the
VIE, Shanghai Xiao-i, and the ownership of the remaining 30% of
Guizhou Xiao-i.
Chao Xu
FirstName LastNameChao Xu
Xiao-I Corporation
Comapany 19,
September NameXiao-I
2022 Corporation
September
Page 3 19, 2022 Page 3
FirstName LastName
Our Competitive Advantages, page 16
7. We note the revisions made in response to prior comment 25. While we
note your
disclosure that the court confirmed the validity of your patent in
your 2012 patent
infringement against a subsidiary of Apple, please revise to clearly
state whether the court
ruled on or determined whether Apple was infringing upon your patent.
Additionally,
with respect to the 2020 lawsuit against Apple discussed on page 113,
please clarify
whether the court has ruled on your behavior preservation application
(injunction).
Consolidation, page 18
8. We note your response and revised disclosure in response to prior
comment 13. The
Investment deficit in VIE and Share of loss/income in VIE
line item titles and your
explanation implies the VIE arrangement is similar to an equity method
investment.
Pursuant to the Exclusive Business Cooperation Agreement, the WFOE
receives benefits
of the VIE in the form of service fees and has an obligation to
provide financial support to
the VIE as needed. As you state that there were no services fees
recognized for the years
ended December 31, 2020 and 2021 and that there were no loans or
capital contributions
to the VIE for the three years ended December 31, 2021, please revise
these line items to
more appropriately describe the nature of the amounts. Also, as the
Parent has no direct
relationship with the VIE or its subsidiaries revise the line item
titles Investment deficit
in VIE s subsidiaries and Share of loss/income in the VIE s
subsidiaries .
Permission Required from the PRC Authorities..., page 24
9. We note the revisions made in response to prior comment 15 and
re-issue this comment in
part. Please revise your summary to state affirmatively whether you
have received all
requisite permissions or approvals that you, your subsidiaries, or the
VIEs are required to
obtain from Chinese authorities to operate your business and to offer
the securities being
registered to foreign investors a and whether any permissions or
approvals have been
denied. Also, we note that you believe that CSRC approval is not
required for the
offering. Please revise to indicate if you relied on the opinion of
counsel to reach this
conclusions and, if so, identify counsel. If you did not rely on
counsel, please explain
why you did not consult counsel.
Dilution, page 76
10. Your response to prior comment 19 indicates that you revised the
disclosure regarding
dilution to exclude contract costs from net tangible book value;
however, the amounts on
page 76 were not revised. Please revise or advise.
Principal Shareholders, page 134
11. We note the revisions made in response to prior comment 27 and we
re-issue this
comment in part. Please revise to disclose the natural person or
persons who exercise the
voting and/or dispositive powers, or have the right to receive the
economic benefit, with
Chao Xu
FirstName LastNameChao Xu
Xiao-I Corporation
Comapany 19,
September NameXiao-I
2022 Corporation
September
Page 4 19, 2022 Page 4
FirstName LastName
respect to the securities owned by River Hill China Fund L.P.
Additionally, please ensure
you disclose all of the information required by Item 7.A of Form 20-F.
Consolidated Financial Statements
Note 1. Organization and Principal Activities, page F-9
12. We note your revised disclosure in response to prior comment 32.
Please revise to explain
how your ability to receive all of the economic benefit from and
obligation to absorb all of
the losses of the VIE and its subsidiaries is impacted by the
non-controlling interest in
Guizhou Xiao-I. In this regard, you disclose that you receive
substantially all of the
economic benefits of the VIE; however there is a 30 percent
non-controlling interest in
one of the VIE's subsidiaries. In addition, explain why the amount of
the shareholder
deficit attributable to non-controlling interest is such a significant
portion of the VIE total
shareholders deficit as of December 31, 2020 and 2021.
Note 4. Prepaid Expenses and Other Assets, page F-25
13. We note your response and revised disclosure in response to prior
comment 40. Footnote
(2) on page F-25 indicates that the prepaid case acceptance fee for
the Apple litigation was
approximately $1.6 million; however the prepaid case acceptance fee
balance is $3.9
million. Please explain why these amounts differ. Also, explain why
you have recorded a
prepaid asset considering the amounts were paid by third parties. In
addition, reconcile
this disclosure with the amount of litigation payable as of December
31, 2021 that you
disclose mainly consists of the litigation fee of the Apple lawsuit
paid by the third parties
on behalf of the Group.
14. In the revised disclosure in response to prior comment 38 you disclose
that receivables
from third parties mainly includes "funds lent to third parties."
Please revise to clarify
your relationship to these third parties and explain why the company
has lent funds to
these third parties. In addition, revise your MD&A to separately
discuss bad debt expense
related to customer receivables and bad debt related to receivables
from third parties. In
this regard we note that on page 84 you disclose an increase in bad
debt expenses of
US$0.89 million, however we are unable to reconcile this to the
amounts disclosed as bad
debt expense on pages F-24 and F-25.
Note 9. Convertible Loans, page F-28
15. Please clarify the following in relation to your response and revised
disclosure in response
to prior comment 39:
Your reference to issuing ordinary shares of an "affiliate" is
unclear. Revise to
clarify whether the shares to be issued if such loans were
converted would be
ordinary shares of Xiao-I Corporation upon completion of this
IPO.
As these convertible loans are an obligation of the VIE it
remains unclear how shares
of Xiao-I Corporation could be issued in settlement of the VIE's
obligations. On
Chao Xu
FirstName LastNameChao Xu
Xiao-I Corporation
Comapany 19,
September NameXiao-I
2022 Corporation
September
Page 5 19, 2022 Page 5
FirstName LastName
page F-14 you disclose that creditors of the VIE s third party
liabilities do not have
recourse to the general credit of the Company and the Company is
not a party to or
guarantor on the Investment Agreement. Please advise.
Clarify where the conversion formula described in your response
as "converted into
predetermined number of ordinary shares held by the Company,
which equal to the
proportion of loan's principal to target enterprise market value
times the numbers of
outstanding shares of the Company as of December 31, 2020" is
addressed in the
Investment Agreement in Exhibit 10.8.
Revise to disclose the aggregate number of shares that would be
issued in a
hypothetical conversion of the total loans outstanding at
December 31, 2021
assuming an IPO with an implied enterprise market value of $465
million, the
minimum enterprise market value that could trigger conversion
option.
Clarify the timing of the repayment in cash or conversion into
shares in relation to
completion of this IPO.
Tell us whether the Xu*** and Shi***loans were settled or were
extended
and disclose this in your subsequent event footnote.
Related Party Transactions, page F-33
16. We note your response to prior comment 28. Please revise to ensure you
disclose the
nature of the related party transactions and the material terms of the
related party loans
described on page F-33 for the previous three financial years up to
the date of the
document. For each loan, please disclose the nature of the loan and
the transaction in
which it was incurred and the interest rate on the loan. Refer to Item
7.B of Form 20-F.
Exhibit Index, page II-3
17. We note your response to prior comment 24. While the disclosure on
page 82 references
an "Intelligent Drawing Platform Operation and Technical Support
Agreement", we note
that Exhibit 10.11 is titled as "Operation and Technical Service
Agreement of Intelligent
Plan Review Platform Agreement." To the extent the highlighted
disclosure on page 82
references Exhibit 10.11, please revise to refer to this agreement in
a consistent manner in
both locations. Alternatively, if these are distinct agreements,
please also file
the Intelligent Drawing Platform Operation and Technical Support
Agreement.
General
18. Please revise to clarify how you intend to hold the NFTs such as
whether they will be held
in digital wallet, exchanges, or hardware wallets, and the security
precautions you will
take to keep your crypto assets secure. To the extent that you intend
to utilize a third
party, expand your risk factors to discuss the risks associated with
reliance on having a
third-party have custody of your crypto assets.
19. Please supplementally provide us with your legal analysis as to
whether the NFTs that will
be offered and sold through your marketplace will be securities under
Section 2(a)(1) of
Chao Xu
Xiao-I Corporation
September 19, 2022
Page 6
the Securities Act of 1933. In responding to this comment, please address
your operation
of the marketplace. See Gary Plastic Packaging Corp. v. Merrill Lynch,
Pierce, Fenner
& Smith, Inc., 756 F.2d 230 (2d Cir. 1985). Moreover, in preparing your
legal analysis,
please address not only the instruments themselves but also your role in
the operation of
the marketplace and creation of the instruments, as well as your ongoing
interest in the
NFTs after resale.
20. Tell us whether you will maintain royalty interest in or intellectual
property ownership of
the NFTs sold on your platform. Discuss the intellectual property
underlying the NFTs
and explain to us how disputes over such rights will be resolved and your
role in such
resolution, including your role in the enforcement of such rights.
21. Please revise your summary risk factors to include blockchain, crypto
asset, and NFT
specific risks associated with your planned business operations. As
non-exclusive
examples only, discuss the impact of lack of liquidity and volatility as
is relates to the
NFT marketplace
22. Please describe in detail your internal processes for how you determine,
or will determine
as you expand your business, whether particular crypto assets are
securities within the
meaning of the U.S. federal securities laws, and clarify that such
processes are risk based
assessments and are not a legal standard or binding on regulators. Also,
include a risk
factor addressing the uncertainty and consequences of making an incorrect
assessment or
a regulator disagreeing with your assessment.
You may contact Joyce Sweeney, Senior Staff Accountant, at 202-551-3449
or Christine
Dietz, Senior Staff Accountant, at 202-551-3408 if you have questions regarding
comments on
the financial statements and related matters. Please contact Charli
Gibbs-Tabler, Staff
Attorney, at 202-551-6388 or Mitchell Austin, Staff Attorney, at 202-551-3574
with any other
questions.
Sincerely,
FirstName LastNameChao Xu
Division of
Corporation Finance
Comapany NameXiao-I Corporation
Office of
Technology
September 19, 2022 Page 6
cc: Fred Summer
FirstName LastName