FTFT 8-K
Future FinTech Group Inc. (FTFT)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
On July 29, 2026, Future FinTech Group Inc., a Florida corporation (the “Company”), entered into Securities Purchase Agreements (collectively, the “SPA”) with certain purchasers named therein (collectively, the “Purchasers”), pursuant to which the Company agreed to issue and sell to the Purchasers, and the Purchasers agreed to purchase from the Company, an aggregate of 30,000,000 shares (the “Shares”) of the Company's common stock, par value $0.001 per share (the “Common Stock”), at a purchase price of $1.00 per share, for aggregate gross proceeds to the Company of $30,000,000 (the “Offering”). Wealth Index Capital Limited (“WICL”), which purchased 10,000,000 of the Shares, is wholly owned and controlled by Mr. Shanchun Huang, its sole member. Mr. Huang is the Company’s controlling shareholder and served as the Company’s Chief Executive Officer from 2020 to August 2024. Prior to the Offering, WICL beneficially owned approximately 27.0% of the Company’s outstanding Common Stock, and immediately following the Offering WICL beneficially owns approximately 32.9% of the outstanding Common Stock. Except as described in this Item 1.01, none of the Purchasers has any material relationship with the Company or any of its affiliates, directors or officers.
The per-share purchase price for the Shares was fixed at $1.00, which was at a premium to (and in any event not less than) the “Minimum Price” as defined in Nasdaq Listing Rule 5635(d)(1)(A), being the lower of (i) the Nasdaq official closing price of the Common Stock immediately preceding the signing of the SPA and (ii) the average Nasdaq official closing price of the Common Stock for the five trading days immediately preceding the signing of the SPA. Accordingly, the Company does not believe stockholder approval of the Offering is required under Nasdaq Listing Rule 5635(d). No Shares will be issued to any Purchaser to the extent that such issuance, together with securities held by such Purchaser and its affiliates and any group of which such Purchaser is a member, would result in such Purchaser beneficially owning in excess of 19.99% of the Company's outstanding Common Stock immediately after giving effect to such issuance, or would otherwise result in a “change of control” of the Company within the meaning of Nasdaq Listing Rule 5635(b), unless and until the Company obtains stockholder approval in accordance with applicable Nasdaq rules.
The SPA contemplated that the Company and the Purchasers would enter into a registration rights agreement with respect to the Shares. Effective August 4, 2026, the Company and each Purchaser agreed in writing that no such agreement will be entered into, and each Purchaser irrevocably waived any and all registration rights with respect to the Shares. The Company has no obligation to register the offer or resale of the Shares, which remain "restricted securities" that may be resold only pursuant to an effective registration statement under the Securities Act of 1933, as amended, or an available exemption therefrom.
The Shares were offered and sold to the Purchasers in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Rule 506(b) of Regulation D and/or Regulation S promulgated thereunder, as each Purchaser represented that it is a “non-U.S. person” as defined in Regulation S acquiring the Shares for investment purposes and not with a view to distribution. The offer and sale of the Shares were made in offshore transactions and without any form of general solicitation or general advertising.
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The foregoing description of the SPA does not purport to be complete and is qualified in its entirety by reference to the full text of the Securities Purchase Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure set forth in Item 1.01 above is incorporated herein by reference.
On July 30, 2026, the Company received the aggregate Purchase Price from the Purchasers and, upon the terms and subject to the conditions set forth in the SPA, issued an aggregate of 30,000,000 Shares to the Purchasers. The Shares were sold for aggregate cash consideration of $30,000,000, or $1.00 per Share. No underwriting discounts or commissions were paid, and no underwriter or placement agent was engaged, in connection with the offer and sale of the Shares. Immediately following the issuance of the Shares, the Company had 32,080,831 shares of Common Stock issued and outstanding. The Shares were not registered under the Securities Act and were issued in reliance on the exemptions from registration described in Item 1.01 above. The certificates representing the Shares bear a restrictive legend under the Securities Act.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. | Exhibit Title or Description | |
| 10.1 | Securities Purchase Agreement, dated as of July 29, 2026, by and among Future FinTech Group Inc. and the Purchasers named therein. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Future FinTech Group Inc. | ||
| Date: August 4, 2026 | By: | /s/ Hu Li |
| Name: | Hu Li | |
| Title: | Chief Executive Officer | |
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Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the “Agreement”) is dated as of July [ 29 ], 2026 by and among Future FinTech Group Inc., a Florida corporation, (the “Company”), and individuals listed in Exhibit B hereto and each affixes its signature on the signature page of this Agreement (each, a “Purchaser”; collectively, the “Purchasers”).
RECITALS
WHEREAS, the Company and the Purchasers are executing and delivering this Agreement in accordance with and in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933 (the “Securities Act”) and/or Regulation S (“Regulation S”) and/or Rule 506(b) of Regulation D (“Regulation D”), in each case as promulgated under the Securities Act;
WHEREAS, the Company is offering certain shares of its common stock, par value $0.001 per share, (the “Common Stock”) at a price per share equal to the Per Share Purchase Price (as defined below) to the Purchasers;
WHEREAS, the Company is offering up to 30,000,000 shares of Common Stock to the Purchasers listed in Exhibit B, who severally but not jointly enters into this Agreement and makes representations and warranties hereunder;
WHEREAS, the Purchaser is a “non-US person” as defined in Regulation S, acquiring the Shares solely for its own account for the purpose of investment;
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NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Purchaser hereby agree as follows:
ARTICLE I
Purchase and Sale of the Shares
Section 1.1 Purchase Price and Closing.
(a) Subject to the terms and conditions hereof, the Company agrees to issue and sell to the Purchaser and, in consideration of and in express reliance upon the representations, warranties, covenants, terms and conditions of this Agreement, the Purchaser agrees to purchase at a price per Share equal to the Per Share Purchase Price (as defined in Section 1.1(d)), such number of shares of Common Stock (each a “Share” and collectively the “Shares”) for an aggregate price listed on the signature page hereto (the “Purchase Price”).
(b) Subject to all conditions to closing being satisfied or waived, the closing of the purchase and sale of the Shares (the “Closing”) shall take place at the office of the Company, on the date of the occurrence of completion of and receipt by the Company of the Purchase Price (the “Closing Date”).
(c) Subject to the terms and conditions of this Agreement, at the Closing the Company shall deliver or cause to be delivered to the Purchaser (i) a certificate for such number of Shares, and (ii) the Registration Rights Agreement, dated as of the Closing Date, by and among the Company and the Purchasers (the “ Registration Rights Agreement” ), duly executed by the Company, and (iii) any other documents required to be delivered pursuant to this Agreement. At the time of the Closing, the Purchaser shall have delivered its Purchase Price by wire transfer pursuant to the wire information provided by the Company, and shall have delivered to the Company a counterpart of the Registration Rights Agreement, duly executed by such Purchaser.
(d) Per Share Purchase Price. The purchase price per Share (the “Per Share Purchase Price”) shall be equal to the “Minimum Price” as defined in Nasdaq Listing Rule 5635(d)(1)(A), being the lower of: (i) the Nasdaq Official Closing Price of the Common Stock (as reflected on Nasdaq.com) immediately preceding the signing of this Agreement; and (ii) the average Nasdaq Official Closing Price of the Common Stock (as reflected on Nasdaq.com) for the five trading days immediately preceding the signing of this Agreement. The parties acknowledge that the Per Share Purchase Price is at least equal to the Minimum Price, such that the issuance of the Shares will not require shareholder approval under Nasdaq Listing Rule 5635(d).
(e) Ownership Limitation. Notwithstanding anything to the contrary herein, the Company shall not issue or sell, and no Purchaser shall purchase, any Shares to the extent that, after giving effect to such issuance, such Purchaser, together with its affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with such Purchaser’s for purposes of the rules of The Nasdaq Stock Market LLC (“Nasdaq”), would beneficially own in excess of 19.99% of the number of shares of Common Stock issued and outstanding immediately after giving effect to such issuance, or would otherwise result in a “change of control” of the Company within the meaning of Nasdaq Listing Rule 5635(b), in each case unless and until the Company has obtained the approval of its stockholders in accordance with the applicable Nasdaq Listing Rules. The number of Shares to be purchased by any Purchaser hereunder, and the corresponding Purchase Price, shall be reduced to the extent necessary to comply with this Section 1.1(e).
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ARTICLE II
Representations and Warranties
Section 2.1 Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser on behalf of itself, its subsidiaries (as hereinafter defined), as of the date hereof, as follows:
(a) Organization, Good Standing and Power. The Company is a corporation or other entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization (as applicable) and respectively, has the requisite corporate power to own, lease and operate its properties and assets and to conduct its business as it is now being conducted. The Company and each of its subsidiaries is duly qualified to do business and is in good standing in every jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary except for any jurisdiction(s) (alone or in the aggregate) in which the failure to be so qualified will not have a Material Adverse Effect (as defined in Section 2.1(e) hereof).
(b) Corporate Power; Authority and Enforcement. The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement, and to issue and sell the Shares in accordance with the terms hereof. The execution, delivery and performance of this Agreement by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action, and no further consent or authorization of the Company or its Board of Directors or stockholders is required. This Agreement constitutes, or shall constitute when executed and delivered, a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservator ship, receiver ship or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application.
(c) Capitalization. The authorized capital stock of the Company consists of 37,500,000 shares of Common Stock, par value $0.001 per share, and 10,000,000 shares of preferred stock, par value $0.001 per share. As of July 27, 2026, [2,080,831] shares of Common Stock were issued and outstanding and no shares of preferred stock were issued and outstanding. All of such issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable.
(d) Issuance of Shares. The Shares to be issued at the Closing have been duly authorized by all necessary corporate action, when paid for or issued in accordance with the terms hereof, shall be validly issued and outstanding, fully paid and non-assessable.
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(e) Compliance with Law. The Company and its subsidiaries have all material permits, licenses, consents and other governmental or regulatory authorizations and approvals necessary for the conduct of their respective business as now being conducted by it unless the failure to possess such permits, licenses, consents and other governmental or regulatory authorizations and approvals, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. “Material Adverse Effect” shall mean (i) any material adverse effect upon the assets, properties, financial condition, business of the Company, and its subsidiaries, when taken as a consolidated whole, and/or (ii) any condition, circumstance, or situation that would prohibit or otherwise materially interfere with the ability of the Company to perform any of its material covenants, agreements and obligations under this Agreement.
(f) No Conflicts. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated herein and therein do not and will not (i) violate any provision of the Company’s Articles of Incorporation or Bylaws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company is a party or by which it or its properties or assets are bound, (iii) create or impose a lien, mortgage, security interest, pledge, charge or encumbrance (collectively, “Lien”) of any nature on any property of the Company under any agreement or any commitment to which the Company is a party or by which the Company is bound or by which any of its respective properties or assets are bound, or (iv) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including Federal and state securities laws and regulations) applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries are bound or affected, provided, however, that, excluded from the foregoing in all cases are such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect.
(g) Certain Fees. No brokers fees, finders fees or financial advisory fees or commissions will be payable by the Company with respect to the transactions contemplated by this Agreement.
Section 2.2 Representations and Warranties of the Purchaser. Each Purchaser, severally but not jointly, hereby makes the following representations and warranties to the Company as of the date hereof:
(a) No Conflicts. The execution, delivery and performance of this Agreement and the consummation by such Purchaser of the transactions contemplated hereby and thereby or relating hereto do not and will not conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of any agreement, indenture or instrument or obligation to which such Purchaser is a party or by which its properties or assets are bound, or result in a violation of any law, rule, or regulation, or any order, judgment or decree of any court or governmental agency applicable to such Purchaser or its properties (except for such conflicts, defaults and violations as would not, individually or in the aggregate, have a material adverse effect on such Purchaser). Such Purchaser is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement, provided, that for purposes of the representation made in this sentence, such Purchaser is assuming and relying upon the accuracy of the relevant representations and agreements of the Company herein.
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(b) Status of Purchaser. The Purchaser is a “non-US person” as defined in Regulation S. The Purchaser further makes the representations and warranties to the Company set forth on Exhibit A. The Purchaser has completed and delivered to the Company an investor questionnaire in the form attached hereto as Exhibit C (the “Investor Questionnaire”) indicating, among other things, whether the Purchaser is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D (an “Accredited Investor”). All information provided by the Purchaser in the Investor Questionnaire is true, correct and complete as of the date hereof and shall be true, correct and complete as of the Closing Date, and the Purchaser shall promptly notify the Company in writing of any change in such information occurring prior to the Closing. If the Purchaser has indicated in the Investor Questionnaire that it is an Accredited Investor, the Purchaser hereby represents and warrants that it is an Accredited Investor as of the date hereof and as of the Closing Date. Such Purchaser is not required to be registered as a broker-dealer under Section 15 of the Exchange Act and such Purchaser is not a broker-dealer, nor an affiliate of a broker-dealer.
(c) Reliance on Exemptions. The Purchaser understands that the Shares are being offered and sold to it in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Shares.
(d) Information. The Purchaser and its advisors, if any, have had the opportunity to ask questions of management of the Company and its subsidiaries and have been furnished with all information relating to the business, finances and operations of the Company and information relating to the offer and sale of the Shares which have been requested by the Purchaser or its advisors. Neither such inquiries nor any other due diligence investigation conducted by the Purchaser or any of its advisors or representatives shall modify, amend or affect the Purchaser’s right to rely on the representations and warranties of the Company contained herein. The Purchaser understands that its investment in the Shares involves a significant degree of risk. The Purchaser further represents to the Company that the Purchaser’s decision to enter into this Agreement has been based solely on the independent evaluation of the Purchaser and its representatives.
(e) Governmental Review. The Purchaser understands that no United States federal or state agency or any other government or governmental agency has passed upon or made any recommendation or endorsement of the Shares.
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(f) Transfer or Re-sale. The Purchaser understands that the sale or re-sale of the Shares has not been and is not being registered under the Securities Act or any applicable state securities laws, and the Shares may not be transferred unless (i) the Shares are sold pursuant to an effective registration statement under the Securities Act, (ii) the Purchaser shall have delivered to the Company an opinion of counsel that shall be in form, substance and scope customary for opinions of counsel in comparable transactions to the effect that the Shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration, which opinion shall be reasonably acceptable to the Company, (iii) the Shares are sold or transferred to an “affiliate” (as defined in Rule 144 promulgated under the Securities Act (or a successor rule) (“Rule 144”)) of the Purchaser who agrees to sell or otherwise transfer the Shares only in accordance with this Section 2.2(f) and who is a non-US person, (iv) the Shares are sold pursuant to Rule 144, or (v) the Shares are sold pursuant to Regulation S under the Securities Act (or a successor rule) (“Regulation S”).
(g) Legends. The Purchaser understands that the Shares shall bear a restrictive legend in the form as set forth under Section 5.1 of this Agreement. The Purchaser understands that, until such time the Shares may be sold pursuant to Rule 144 or Regulation S without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Shares may bear a restrictive legend in substantially the form set forth under Section 5.1 (and a stop-transfer order may be placed against transfer of the certificates evidencing such Securities).
(h) Residency. The Purchaser is a resident of the jurisdiction set forth immediately below such Purchaser’s name on the signature pages hereto.
(i) No General Solicitation. The Purchaser acknowledges that the Shares were not offered to such Purchaser by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media, or broadcast over television or radio, or (ii) any seminar or meeting to which such Purchaser was invited by any of the foregoing means of communications.
(j) Rule 144. Such Purchaser understands that the Shares must be held indefinitely unless such Shares are registered under the Securities Act or an exemption from registration is available. Such Purchaser acknowledges that such Purchaser is familiar with Rule 144 and Rule 144A, of the rules and regulations of the Commission, as amended, promulgated pursuant to the Securities Act (“Rule 144”), and that such person has been advised that Rule 144 and Rule 144A, as applicable, permits resales only under certain circumstances. Such Purchaser understands that to the extent that Rule 144 or Rule 144A is not available, such Purchaser will be unable to sell any Shares without either registration under the Securities Act or the existence of another exemption from such registration requirement.
(k) Brokers. Purchaser does not have any knowledge of any brokerage or finder’s fees or commissions that are or will be payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other person or entity with respect to the transactions contemplated by this Agreement.
(l) Acquisition for Investment. The Purchaser is a “non-US person” as defined in Regulation S, acquiring the Shares solely for the its own account for the purpose of investment and not with a view to or for sale in connection with a distribution to anyone.
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(m) Independent Investment Decision. Such Purchaser has independently evaluated the merits of its decision to purchase Shares pursuant to this Agreement, and such Purchaser confirms that it has not relied on the advice of any other person’s business and/or legal counsel in making such decision. Such Purchaser understands that nothing in this Agreement or any other materials presented by or on behalf of the Company to the Purchaser in connection with the purchase of the Shares constitutes legal, tax or investment advice. Such Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Securities.
ARTICLE III
Covenants
Section 3.1 Confidential Information. The Purchaser agrees that such Purchaser and its employees, agents and representatives will keep confidential and will not disclose, divulge or use (other than for purposes of monitoring its investment in the Company) any confidential information which such Purchaser may obtain from the Company pursuant to financial statements, reports and other materials submitted by the Company to such Purchaser pursuant to this Agreement, unless such information is known to the public through no fault of such Purchaser or his or its employees or representatives; provided, however, that a Purchaser may disclose such information (i) to its attorneys, accountants and other professionals in connection with their representation of such Purchaser in connection with such Purchaser’s investment in the Company, (ii) to any prospective permitted transferee of the Shares, so long as the prospective transferee agrees to be bound by the provisions of this Section 3.1, or (iii) to any general partner or affiliate of such Purchaser.
ARTICLE IV
CONDITIONS
Section 4.1 Conditions Precedent to the Obligation of the Company to Sell the Shares. The obligation hereunder of the Company to issue and sell the Shares is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion.
(a) Accuracy of the Purchaser’s Representations and Warranties. The representations and warranties of the Purchaser in this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date.
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(b) Performance by the Purchaser. The Purchaser shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Purchaser at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(d) Delivery of Purchase Price. The Purchase Price for the Shares shall have been delivered to the Company.
(e) Delivery of this Agreement. This Agreement shall have been duly executed and delivered by the Purchaser to the Company.
(f) Investor Questionnaire. The Purchaser shall have completed and delivered to the Company the Investor Questionnaire, and the information contained therein shall be true and correct as of the Closing Date.
Section 4.2 Conditions Precedent to the Obligation of the Purchaser to Purchase the Shares. The obligation hereunder of the Purchaser to acquire and pay for the Shares offered in this Agreement is subject to the satisfaction or waiver, at or before the Closing, of each of the conditions set forth below. These conditions are for the Purchaser’s sole benefit and may be waived by such Purchaser at any time in its sole discretion.
(a) Accuracy of the Company’s Representations and Warranties. Each of the representations and warranties of the Company in this Agreement shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time, except for representations and warranties that are expressly made as of a particular date, which shall be true and correct in all material respects as of such date.
(b) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement.
(d) Certificates. The Company shall have executed and delivered to the Purchaser the certificates for the Shares being acquired by such Purchaser immediately after the Closing to such address set forth next to the Purchaser with respect to the Closing.
(e) Resolutions. The Board of Directors of the Company shall have adopted resolution consistent with Section 2.1 hereof in a form reasonably acceptable to such Purchaser (the “Resolution”).
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ARTICLE V
Stock Certificate Legend
Section 5.1 Legend. Each certificate representing the Shares shall be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required by applicable state securities or “blue sky” laws):
THESE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THE SECURITIES WERE ISSUED IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PURSUANT TO REGULATION S PROMULGATED UNDER IT. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE UNITED STATES UNLESS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. FURTHER, HEDGING TRANSACTIONS WITH REGARD TO THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.
ARTICLE VI
Indemnification
Section 6.1 General Indemnity. The Company agrees to indemnify and hold harmless the Purchaser (and their respective directors, officers, managers, partners, members, shareholders, affiliates, agents, successors and assigns) from and against any and all losses, liabilities, costs, damages and expenses (including, without limitation, reasonable attorneys’ fees, charges and disbursements) incurred by the Purchaser as a result of any breach of the representations, warranties or covenants made by the Company herein. The Purchaser, severally but not jointly, agrees to indemnify and hold harmless the Company and its directors, officers, affiliates, agents, successors and assigns from and against any and all losses, liabilities, costs, damages and expenses (including, without limitation, reasonable attorneys’ fees, charges and disbursements) incurred by the Company as a result of any breach of the representations, warranties or covenants made by such Purchaser herein. The maximum aggregate liability of the Purchaser pursuant to its indemnification obligations under this Article VI shall not exceed the portion of the Purchase Price paid by the Purchaser hereunder. The maximum aggregate liability of the Company to any Purchaser pursuant to its indemnification obligations under this Article VI shall not exceed the portion of the Purchase Price paid by such Purchaser hereunder. In no event shall any “Indemnified Party” (as defined below) be entitled to recover consequential or punitive damages resulting from a breach or violation of this Agreement.
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ARTICLE VII
Miscellaneous
Section 7.1 Fees and Expenses. Except as otherwise set forth in this Agreement, each party shall pay the fees and expenses of its advisors, counsel, accountants and other experts, if any, and all other expenses, incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.
Section 7.2 Specific Enforcement, Consent to Jurisdiction.
(a) The Company and the Purchaser acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof or thereof, this being in addition to any other remedy to which any of them may be entitled by law or equity.
(b) Each of the Company and the Purchaser (i) hereby irrevocably submits to the jurisdiction of the United States District Court sitting in the Southern District of New York and the courts of the State of New York located in New York county for the purposes of any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby or thereby and (ii) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper. Each of the Company and the Purchaser consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing in this Section 7.2 shall affect or limit any right to serve process in any other manner permitted by law. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
Section 7.3 Entire Agreement; Amendment. This Agreement contains the entire understanding and agreement of the parties with respect to the matters covered hereby and, except as specifically set forth herein, neither the Company nor any of the Purchaser makes any representations, warranty, covenant or undertaking with respect to such matters and they supersede all prior understandings and agreements with respect to said subject matter, all of which are merged herein. No provision of this Agreement may be waived or amended other than by a written instrument signed by the Company and the Purchaser, and no provision hereof may be waived other than by a written instrument signed by the party against whom enforcement of any such waiver is sought.
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Section 7.4 Notices. All notices, demands, consents, requests, instructions and other communications to be given or delivered or permitted under or by reason of the provisions of this Agreement or in connection with the transactions contemplated hereby shall be in writing and shall be deemed to be delivered and received by the intended recipient as follows: (i) if personally delivered, on the business day of such delivery (as evidenced by the receipt of the personal delivery service), (ii) if mailed certified or registered mail return receipt requested, two (2) business days after being mailed, (iii) if delivered by overnight courier (with all charges having been prepaid), on the business day of such delivery (as evidenced by the receipt of the overnight courier service of recognized standing), or (iv) if delivered by facsimile transmission, on the business day of such delivery if sent by 6:00 p.m. in the time zone of the recipient, or if sent after that time, on the next succeeding business day (as evidenced by the printed confirmation of delivery generated by the sending party’s telecopier machine). If any notice, demand, consent, request, instruction or other communication cannot be delivered because of a changed address of which no notice was given (in accordance with this Section 7.4), or the refusal to accept same, the notice, demand, consent, request, instruction or other communication shall be deemed received on the second business day the notice is sent (as evidenced by a sworn affidavit of the sender). All such notices, demands, consents, requests, instructions and other communications will be sent to the following addresses or facsimile numbers as applicable:
If to the Company:
02B-03A, 23/F, Sino Plaza, 255-257 Gloucester Road, Causeway Bay, Hong Kong
If to Purchaser:
The address listed on Exhibit B
Any party hereto may from time to time change its address for notices by giving at least ten (10) days written notice of such changed address to the other party hereto.
Section 7.5 Waivers. No waiver by any party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provisions, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter.
Section 7.6 Headings. The section headings contained in this Agreement (including, without limitation, section headings and headings in the exhibits and schedules) are inserted for reference purposes only and shall not affect in any way the meaning, construction or interpretation of this Agreement. Any reference to the masculine, feminine, or neuter gender shall be a reference to such other gender as is appropriate. References to the singular shall include the plural and vice versa.
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Section 7.7 Successors and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company or the Purchaser, as applicable. The provisions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and permitted assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
Section 7.8 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to any of the conflicts of law principles which would result in the application of the substantive law of another jurisdiction. This Agreement shall not be interpreted or construed with any presumption against the party causing this Agreement to be drafted.
Section 7.9 Survival. The representations and warranties of the Company and the Purchaser shall survive the execution and delivery hereof and the Closing hereunder for a period of one (1) year following the Closing Date.
Section 7.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and, all of which taken together shall constitute one and the same Agreement and shall become effective when counterparts have been signed by each party and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or .pdf scanned copy, such signature shall create a valid binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile or .pdf scanned copy signature were the original thereof.
Section 7.11 Severability. The provisions of this Agreement are severable and, in the event that any court of competent jurisdiction shall determine that any one or more of the provisions or part of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Agreement and such provision shall be reformed and construed as if such invalid or illegal or unenforceable provision, or part of such provision, had never been contained herein, so that such provisions would be valid, legal and enforceable to the maximum extent possible.
Section 7.12 Individual Capacity. Each Purchaser enters into this Agreement on its own capacity, and not as a group with other Purchasers. Each Purchaser, severally but not jointly, makes representations and warranties contained under this Agreement.
Section 7.13 Termination. This Agreement may be terminated prior to Closing by mutual written agreement of the Purchaser and the Company.
Section 7.14. Language. The Agreement is in both English and Chinese, which both have binding effects. If there is any conflict between the English and Chinese language, English language prevails.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officer as of the date first above written.
The Company:
| By: | /s/ Hu Li | ||
| Name: | Hu Li | ||
| Title: | Chief Executive Officer | ||
[Signature Page of the Company]
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Wealth Index Capital Limited | |
| Name: | Wealth Index Capital Limited |
Number of Shares Purchased : 10,000,000
Total Purchase Price: ($ 1.0 x 10,000,000) $ 10,000,000
Address of Purchaser
No.3-2-205 Xi Jing Road, Ba Da Chu Gao Ke Ji Yuan Qu, Shi Jing Sha District, Beijing, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Sun Tao | |
| Name: | Sun Tao |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : No.5202, Building 316, Laodongyifang, Lianhu District, Xi’an, Shaanxi, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Hu Junfeng | |
| Name: | Hu Junfeng |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser
No.138, Zu 3, Hujiadi Village, Litai Town, Yangling District, Xianyang City, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Ao Quanfang | |
| Name: | Ao Quanfang |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser :4-3-4 No.7 Binhe Road, Qindu Qu, Xianyang, Shaanxi, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Li Yali | |
| Name: | Li Yali |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : No.6 Nanxinzhuang village, Longhuadian Town, Hejian City, HeBei Province, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Liu Zhifen | |
| Name: | Liu Zhifen |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : 4-4-8, No. 11, Jianhang qinbaoxiaoqu, Fuan Road, Qindu District, Xianyang, Shaanxi, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Tong Junyan | |
| Name: | Tong Junyan |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : 1-7-13, No. 209 Qingnian Road, Lianhu District, Xi’an, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Xu Fan | |
| Name: | Xu Fan |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : No,9, Floor 16, 103 Jiefang, Xi Yi, Lianhu District, Xi’an, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Xu Haifeng | |
| Name: | Xu Haifeng |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : No.582, 3 Zu, Xuxiwan Village, Litai Town, Yang Ling, Xianyang City, Shaanxi, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Wu Xiaoping | |
| Name: | Wu Xiaoping |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : 1-2-1, Building4, Mingdemeng Xiaoqu, Yanta District, Xi’an, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Wang Nan | |
| Name: | Wang Nan |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : No. 21, Yangdong Zu, Shi Village, Yanwang Town, Jingyang County, Shaanxi, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Han Mainao | |
| Name: | Han Mainao |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : 41-26-101, Renmindong Road, Weicheng District, Xianyang, Shaanxi, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Zhai Xiaojuan | |
| Name: | Zhai Xiaojuan |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : Zu 2, Dongshizi Village, Fanjia Town, Dali County, Shaanxi, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Deng Ting | |
| Name: | Deng Ting |
Number of Shares Purchased 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : Zu 10, Jinyu Village, WenSheng Town, Shehong County, Sichuan, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Feng Yulong | |
| Name: | Feng Yulong |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : No.5 Taiyi Street, TaiyiGongTown, Changan District, Xi’an, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Li Fang | |
| Name: | Li Fang |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : 6-3-13, No. 106 Wanshounan Road, Xincheng District, Xi’an, China
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Signature Page of the Purchaser
IN WITNESS WHEREOF, the Purchaser has caused this Agreement to be duly executed individually or by its authorized officer or member as of the date first above written.
The Purchaser:
| By: | /s/ Li Gaoqiang | |
| Name: | Li Gaoqiang |
Number of Shares Purchased : 1,250,000
Total Purchase Price: ($ 1.0 x 1,250,000) $1,250,000
Address of Purchaser : No. 80, Building 20, No.37 Renminxi Road, Xian Yang, Shaanxi, China
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