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United States securities and exchange commission logo
January 26, 2023
Samuel Lui
Chief Executive Officer
ESGL Holdings Limited
101 Tuas South Avenue 2
Singapore 637226
Re: ESGL Holdings
Limited
Registration
Statement on Form F-4
Filed December 30,
2022
File No. 333-269078
Dear Samuel Lui:
We have reviewed your 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 amending your registration
statement and providing the
requested information. 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 any amendment to your registration statement and
the information you
provide in response to these comments, we may have additional comments.
Form F-4 filed on December 30, 2022
Do any of GUCC's directors or officers have interests that may conflict
with my interests with
respect to the Business Combination?, page 9
1. Please quantify the
aggregate dollar amount and describe the nature of what the Sponsor
and its affiliates have
at risk that depends on completion of a business combination.
Include the current
value of securities held, loans extended, fees due, and out-of-pocket
expenses for which the
Sponsor and its affiliates are awaiting reimbursement. Provide
similar disclosure for
the company s officers and directors, if material. For example, we
note your discussion
elsewhere in your filing regarding the promissory notes held by the
Sponsor, and note that
you have not disclosed the current market value of securities held
by the Sponsor.
2. We note your disclosure
that Samuel Lui may have a conflict of interest with respect to
Samuel Lui
FirstName LastNameSamuel Lui
ESGL Holdings Limited
Comapany
January 26,NameESGL
2023 Holdings Limited
January
Page 2 26, 2023 Page 2
FirstName LastName
evaluating the Business Combination in light of his ownership of
outstanding ordinary
shares of ESGL and, following the closing of the Business Combination,
ownership of
PubCo ordinary shares. Please revise to clarify how the board
considered such conflict in
negotiating and recommending the business combination. In addition,
please disclose the
approximate dollar value of the interest based on the transaction
value and recent trading
prices as compared to the price paid. Disclose in this section also
that Mr. Lui is the sole
member and manager of the Sponsor.
3. We note that the Genesis Unicorn Capital Corp. (GUCC) charter waived
the corporate
opportunities doctrine. Please address this potential conflict of
interest and whether it
impacted GUCC s search for an acquisition target.
Will I experience dilution as a result of the Business Combination?, page 16
4. Revise your disclosure to show the potential impact of redemptions on
the per share value
of the shares owned by non-redeeming shareholders by including a
sensitivity analysis
showing a range of redemption scenarios, including minimum, maximum
and interim
redemption levels.
5. Please revise to disclose all possible sources and extent of dilution
that shareholders who
elect not to redeem their shares may experience in connection with the
business
combination. Provide disclosure of the impact of each significant
source of dilution,
including the amount of equity held by founders, convertible
securities, including warrants
retained by redeeming shareholders, at each of the redemption levels
detailed in your
sensitivity analysis, including any needed assumptions.
6. It appears that underwriting fees remain constant and are not adjusted
based on
redemptions. Revise your disclosure to disclose the effective
underwriting fee on a
percentage basis for shares at each redemption level presented in your
sensitivity analysis
related to dilution.
What happens to the funds deposited in the Trust Account following the Business
Combination?,
page 17
7. Please revise to clarify the estimated per share amount to be paid to
investors exercising
their redemption rights. For example, we note your reference on page
17 to $10.26 per
share and your reference on page iii to $10.38 per share.
Conditions to Closing, page 21
8. We note your disclosure on page 82 that it is a condition to the
obligations of GUCC and
ESGL to close the Business Combination that your Class A common stock
remain listed
on the Nasdaq Global Market. We also note your disclosure that as a
result, if the Nasdaq
Proposal is not adopted, the Business Combination may not be completed
"unless this
condition is waived." However, we also note your disclosure at page v
and elsewhere that
the Acquisition Merger Proposal is conditioned upon the approval of
the Reincorporation
Samuel Lui
FirstName LastNameSamuel Lui
ESGL Holdings Limited
Comapany
January 26,NameESGL
2023 Holdings Limited
January
Page 3 26, 2023 Page 3
FirstName LastName
Merger Proposal and the Nasdaq Proposal. Please revise to clarify
whether waiver of the
adoption of the Nasdaq Proposal is being considered, and whether the
Acquisition Merger
Proposal is conditioned upon the approval of the Nasdaq Proposal.
9. Please define in this section the "Outside Date" for closing of the
Merger, as referenced on
page 22.
The Group has engaged in transactions with related parties, and such
transactions present
potential conflicts of interest, page 37
10. We note your disclosure that the Group has entered into a number of
transactions with
related parties, and your reference to the section entitled Certain
Relationships and
Related Party Transactions - ESGL Related Party Transactions for a
more detailed
discussion with respect to the Group s related party transactions.
However, such
information does not appear to be provided in the section Related
Party Transactions of
the Group on page 182. Please advise.
GUCC's search for a business combination, and any target business with which we
ultimately
consummate a business combination, page 42
11. Please update your risk factor disclosure under this caption to
reflect your entry into the
merger agreement.
The Sponsor controls a substantial interest in GUCC and thus may influence
certain actions
requiring a stockholder vote, page 42
12. You state that "if a significant number of GUCC stockholders vote, or
indicate an
intention to vote, against the Business Combination, the Sponsor, the
Initial Stockholders
or their affiliates, could make purchases of GUCC common stock in the
open market or in
private transactions in order to influence the vote." At page 24, you
also indicate that
"... the Sponsor or its affiliates may purchase GUCC securities in
open market or private
transactions outside of the redemption process, for purposes of
ensuring that certain
Nasdaq initial listing requirements will be met and therefore,
increasing the likelihood that
the Business Combination will close. Any such securities purchased
would not be voted
in favor of approving the Business Combination." Please provide us
with your analysis as
to how such purchases would comply with Exchange Act Rule 14e-5. To
the extent that
you are relying on Tender Offer Compliance and Disclosure
Interpretation 166.01 (March
22, 2022), please provide an analysis regarding how it applies to your
circumstances.
Background of the Business Combination, page 66
13. Please revise your disclosure to describe how discussions between GUCC
and ESGL were
initiated. Substantially revise your disclosure throughout this
section to discuss in greater
detail the substance of meetings and discussions among representatives
of GUCC and
ESGL, including the material terms that were discussed, how parties'
positions differed,
and how issues were resolved. For example, please discuss how the
parties determined the
Samuel Lui
FirstName LastNameSamuel Lui
ESGL Holdings Limited
Comapany
January 26,NameESGL
2023 Holdings Limited
January
Page 4 26, 2023 Page 4
FirstName LastName
transaction structure and valuation of ESGL. In addition, expand the
discussion of the
meetings and negotiations among "representatives" of the parties to
name the individuals
involved from GUCC and from ESGL.
14. We note your disclosure regarding the "detailed investment
recommendation paper"
GUCC's board discussed on November 14, 2022. Please provide the
information required
by Item 4(b) of Form F-4 with respect to such investment
recommendation paper, or
provide your analysis as to why such information is not required.
Proposal No. 2 - The Acquisition Merger Proposal
Projected Financial Information, page 69
15. Please describe the reasons the projections were prepared and the
purpose for their
inclusion in the filing. In addition, we note your disclosure that
"ESGL has made
numerous estimates and material assumptions with respect to, among
other things,
regulatory, market and financial conditions and competition, market
size, commercial
efforts, industry performance, general business and economic
conditions and numerous
other matters...." Please expand your disclosure to describe the
material assumptions and
limitations underlying the referenced projections, including the
forecasted capital
expenditures. In that regard, we note disclosure on page 74 regarding
such forecasted
capital expenditures with respect to the fairness opinion. We also
note that while ESGL
has a history of losses, the forecasts project achieving profit
starting in 2024. Please
provide additional details to support this growth in profit and
describe factors or
contingencies considered that would affect the projected growth
ultimately materializing.
Opinion of Marshall & Stevens as an Independent Professional Valuation Advisor
to GUCC,
page 71
16. We note your disclosure regarding the fairness opinion provided by
Marshall & Stevens
with respect to the fairness of the transaction, from a financial
point of view, to GUCC.
Please revise to provide a clear explanation as to the reason the
fairness opinion was
obtained. In addition, revise to clarify, if true, that the fairness
opinion addresses fairness
to all GUCC shareholders as a group as opposed to only those
shareholders unaffiliated
with the Sponsor or its affiliates.
17. Revise to explain further your reference to ESGL's "expected growth
profile" including
the nature and components of this expected growth. We note the
statement under your
Guideline Public Company Analysis at page 77 that "Given the expected
growth profile of
ESGL, the fourth and fifth year forecasted value indications were
weighted equally to
arrive at the final range of value."
Proposal No. 4 -- The Governance Proposals, page 83
18. We note your description of an exclusive forum provision proposed to
be included in
PubCo s Amended and Restated Memorandum and Articles of Association.
However,
such provision does not appear to be included in the Form of Amended
and Restated
Samuel Lui
FirstName LastNameSamuel Lui
ESGL Holdings Limited
Comapany
January 26,NameESGL
2023 Holdings Limited
January
Page 5 26, 2023 Page 5
FirstName LastName
Memorandum and Articles of Association of ESGL Holdings Limited
provided in
Appendix B. Please ensure that your discussion accurately reflects the
contents of the
proposed amended and restated memorandum and articles of association.
U.S. Federal Income Tax Consequences, page 86
19. Please revise to clarify the material tax consequences of the Business
Combination, and
obtain and file an opinion of counsel with regard to such material tax
consequences. See
Item 4(a)(6) of Form F-4 and Item 601(b)(8) of Regulation S-K. Refer
also to Section
III.A.2 of Staff Legal Bulletin No. 19. For example, we note your
disclosure regarding
Sections 368 and 367(a) of the Code with respect to the
Reincorporation Merger. If there
is uncertainty regarding the tax treatment of the Business
Combination, your disclosure
and counsel s opinion should discuss the degree of uncertainty and
make clear why
counsel cannot give a firm opinion.
Management s Discussion and Analysis of Financial Condition and Results of
Operations of the
Group
Liquidity and Capital Resources, page 125
20. We note your disclosure regarding the company s borrowings, and
related disclosure in
Note 18 to your financial statements. Please file as exhibits any loan
agreements required
to be filed by Item 601(b)(4) or Item 601(b)(10) of Regulation S-K.
Emerging Growth Company Status, page 133
21. We note ESGL Holdings Limited ("PubCo") discloses that it is an
emerging growth
company , as defined in Section 2(a) of the Securities Act, as
modified by the JOBS Act.
Please disclose if PubCo has elected to take advantage of the benefits
of the extended
transition period for complying with new or revised accounting
standards under Section
102(b)(1). If PubCo chooses to take advantage of the extended
transition period, please
disclose that as a result of this election, its financial statements
may not be comparable to
companies that comply with public company effective dates with similar
disclosure.
ESA's Directors and Executive Officers Prior to the Business Combination, page
169
22. Under "Experienced Management Team" at page 102, you state: "The Group
s core
executive and management team has amassed more than a combined 100
years of relevant
experience in waste management and the chemical supply chain." Please
explain which of
the listed officers and directors constitute this "core" team.
Compensation of Directors and Executive Officers, page 170
23. Please update your disclosure regarding the compensation of directors
and executive
officers for the fiscal year ended December 31, 2022.
Samuel Lui
FirstName LastNameSamuel Lui
ESGL Holdings Limited
Comapany
January 26,NameESGL
2023 Holdings Limited
January
Page 6 26, 2023 Page 6
FirstName LastName
Directors and Executive Officers of the Combined Company After the Business
Combination,
page 171
24. Please revise to identify the individuals who currently serve as a
director of the registrant,
and the individuals who are currently director nominees.
Environmental Solutions Group Holdings Limited
Audited Financial Statements For the Fiscal Years Ended December 31, 2020 and
2021
3. Going Concern, page F-91
25. You highlight certain conditions that cast doubt over your ability to
continue as a going
concern including your significant net current liability position and
net losses in each of
the periods presented and state that you are dependent on the
undertaking of your
shareholders to provide continuing financial support to enable you to
meet your liabilities
as and when they fall due. Please tell us how you concluded that these
conditions were
alleviated and explain why a going concern paragraph was not included
in the report of
your independent auditor.
Exhibits
26. Please revise to clarify how many shares of the registrant will be
issued to the existing
shareholders of ESGL in connection with the business combination. In
that regard, we
note that the fee table provided in Exhibit 107 includes 75,000,000
ordinary shares to be
issued to the existing shareholders of ESGL, but disclosure on page 81
references the
issuance of 7,500,000 shares.
General
27. With a view toward disclosure, please tell us whether GUCC's sponsor
is, is controlled by,
or has substantial ties with a non-U.S. person. Please also tell us
whether anyone or any
entity associated with or otherwise involved in the transaction, is,
is controlled by, or has
substantial ties with a non-U.S. person. If so, also include risk
factor disclosure in this
filing that addresses how this fact could impact your ability to
complete your initial
business combination. For instance, discuss the risk to investors that
you may not be able
to complete an initial business combination should the transaction be
subject to review by
a U.S. government entity, such as the Committee on Foreign Investment
in the United
States (CFIUS), or ultimately prohibited. Further, disclose that the
time necessary for
government review of the transaction or a decision to prohibit the
transaction
could prevent you from completing an initial business combination and
require you to
liquidate. Disclose the consequences of liquidation to investors, such
as the losses of the
investment opportunity in a target company, any price appreciation in
the combined
company, and the warrants, which would expire worthless. In that
regard, we note the risk
factor titled "We may not be able to complete an initial business
combination with a U.S.
target company since such initial business combination may be subject
to U.S. foreign
investment regulations" in GUCC's definitive proxy statement filed on
January 25, 2023.
Samuel Lui
ESGL Holdings Limited
January 26, 2023
Page 7
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Refer to Rules 460 and 461 regarding requests for acceleration. Please
allow adequate
time for us to review any amendment prior to the requested effective date of
the registration
statement.
You may contact Joanna Lam, Staff Accountant, at (202) 551-3476 or
Craig Arakawa,
Accounting Branch Chief, at (202) 551-3650 if you have questions regarding
comments on the
financial statements and related matters. Please contact Timothy S. Levenberg,
Special Counsel,
at (202) 551-3707, or Laura Nicholson, Special Counsel, at (202) 551-3584 with
any other
questions.
Sincerely,
FirstName LastNameSamuel Lui
Division of
Corporation Finance
Comapany NameESGL Holdings Limited
Office of Energy &
Transportation
January 26, 2023 Page 7
cc: David Levine, Esq.
FirstName LastName