Visionary Holdings Inc 6-K, filed Jan 10, 2025
Visionary Holdings Inc. (GVHGF)
About this 6-K
Visionary Holdings Inc filed this 6-K on January 10, 2025.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 OF THE
SECURITIES EXCHANGE ACT OF 1934
For the month of January 2025
Commission File Number 001-41385
Visionary Holdings Inc.
(Registrant's Name)
105 Moatfield Dr. Unit 1003
Toronto, Ontario, Canada M3B OA2 905-739-0593
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
Form 20-F ☒ 40-F ☐
Entry into Material Definitive Agreements
(a) Share Purchase Agreement
On December 4, 2024, the Company entered into a Share Purchase Agreement by and among SunShine Whale Path E-Commerce Co., Ltd., an Ontario company (the “Purchaser”), and NeoCanaan Investment Corporation (”NeoCanaan”), a wholly owned subsidiary of the Company, pursuant to which the Company agreed to sell, and the Purchaser agreed to purchase from the Company, 100% of the Company’s equity interest and all of its right, title, debts and liabilities in New Canaan, the owner of 260 Town Centre Boulevard and 200 Town Centre Boulevard, Toronto, Canada, for an aggregate consideration of $100. The decline in value of the two properties resulted in liabilities of more than CA$24 million and operating losses for NeoCanaan This transaction closed on December 4, 2024.
The Share Purchase Agreement is filed as Exhibit 99.1 to this Report on Form 6-K and such document is incorporated herein by reference. The foregoing is only a brief description of the material terms of the agreement and does not purport to be a complete description of the rights and obligations of the parties thereunder and is qualified in its entirety by reference to such exhibit.
(b) Merger and Listing Agreement
On January 2, 2025, the Company entered into a Merger and Listing Agreement with Smarco Building Solutions Inc. (“Smarco”) and its two shareholders. Pursuant to the agreement, the Company agreed to issue an aggregate of 555,556 of its common shares, no par value per share, to the two shareholders of Smarco at a price reflecting a 50% discount on the closing price of the common shares on the Nasdaq Capital Market on January 2, 2025 (the closing price on such date was $2.376). In exchange, the two shareholders agreed to transfer 60% of the outstanding shares of Smarco to the Company. It is expected that the transaction will close in the first quarter of 2025, subject to required regulatory approval and clearance.
The Merger and Listing Agreement is filed as Exhibit 99.2 to this Report on Form 6-K and such document is incorporated herein by reference. The foregoing is only a brief description of the material terms of the agreement and does not purport to be a complete description of the rights and obligations of the parties thereunder and is qualified in its entirety by reference to such exhibit.
(c) Securities Purchase Agreement
On December 31, 2024, the Company entered into a Securities Purchase Agreement with certain investors, pursuant to which the Company agreed to sell, and the investors, severally and not jointly, agreed to purchase an aggregate of 21,000,000 common shares of the Company at a price of $1.00 per share for an aggregate consideration of $21,000,000. It is expected that the transaction will close in the first quarter of 2025, subject to required regulatory approval and clearance.
The form of Securities Purchase Agreement is filed as Exhibit 99.3 to this Report on Form 6-K and such document is incorporated herein by reference. The foregoing is only a brief description of the material terms of the agreement and does not purport to be a complete description of the rights and obligations of the parties thereunder and is qualified in its entirety by reference to such exhibit.
Financial Statements and Exhibits
| Exhibit No | Description | |
| 99.1 | Share Purchase Agreement dated December 4, 2024 | |
| 99.2 | Merger and Listing Agreement dated January 2, 2025 | |
| 99.3 | Form of Securities Purchase Agreement |
| 2 |
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, thereto duly authorized.
| VISIONARY HOLDINGS INC. | |
| /s/ Xiyong Hou | |
| Xiyong Hou | |
| Date: January 8, 2025 | Chief Executive Officer |
Exhibit 99.1
SIIAltE l'IJltCIIASE A(;ltEEMENT TIIIS AGIU:EI \ I ENT Is 111 1 11h: lhl s 41h dny ol' I > ece mhcr, 2 024. 111 - :'l'WEEN: VISIONAHV 11O1.l>IN<;S INC., 11 corpornlion incorporntcd under the lnw !I ol'Ontnrio (hercinnfh :r referred ton s the "Vendor") - 11nd • SUNSIIINE WIIAI.E l'ATII E - C OMMEHCF. CO., I.TO ., 11 eorpornlion incorpornlcd under lhe lnws of C anada (herein11f1cr referred to ns lhc "l'urchnscr") - and - NEOCANAAN INVESTMENT COHPORATION, a corpornlion incorpornlcd under the lnw s of Cn nndn (hercinnf \ cr referred ton s the "Coqiorntlon") HF.CITAI.S: I. The Cor poration wns incoqlOratcd under the Cruuu la 811 s i11t's s Co 171 o rafi o 11 s Act on May 26, 2020. 2. The nulhorizcd cnpitnl of the Corporation consists o r nn unlimited number of Class A Common Shares, Cla ss D Common Shares nnd Class C Common Shnrcs, of which only ONE HUNDRED ( 100 ) Class A Common Shares hnvc b ee n duly i ss u e d nnd arc outslanding a s fully paid and non - a ss e ssa ble . 3. The Co rporntion is the so le s hareholder of Canada Animal ion Indu s try Group Inc . (the "Subsidiary") . 4. As of December 4 , 2024 , the Cor porntion, together wilh the Sub s idinry, hn s outstanding debt s nmounting to no less th an CAD $ 22 , 600 , 000 . 00 . These d e bt s include, but arc not limited to, the following : n . The lo a n from RU C wilh nn outsl11nding prin c ipnl nmount nnd nc cmcd intere s t. if any, totnling npproximntcly CAD $16.400,000.00; b. The 10 11 11 from Ynnxiong Su with nn outstnnding principal amount and accmcd intere st, if any, totnling npproximntcly C AD $5,000,000.00 ; c. 11ST nrrc11rs tol11ling 11pproxim11tcly CAD $1,000,000.00; und d. Utility 11rrc11rs toluling npproximutdy C AD $200 , 000.00. 1
5. On September 16 , 2024 , Avison Young provided an estimate of the fair market values of certain properties solely owned by the Corporation or its Subsidiary as follows : a. The property located at 260 Town Ce ntre Blvd, Markham , solely owned by the Corporation, was valued at approximately C AD $6,530 , 000.00; and b. The property located at 200 Town Centre Blvd , Markham , solely owned by the Subsidiary, was valued at approximately CAD $8,970,000.00. The combined fair market value of these two propertie s i s approximately CAD $15 , 500,000.00. 6. As of the date of thi s Agreement, the following i s a complete list of the is s ued and outstanding s hare s in the capital of the Corporation : VISIONARY HOLDINGS INC . I 00 Class A Common Shar es 7. The Purchaser wishes to purchase from the Vendor and the Vendor wi s hes to sell to th e Purch ase r One Hundred ( 100 ) Class A Common Share s in the capital of the Corporation (the "Purchased Shares") , repre se nting One Hundred Percent ( 100 % ) of the entire intere s t of the Vendor in the capital of the Corporation, on tem 1 s and conditions as set forth in this Agreement . NOW THEREFORE in consideration of the premi ses, the mutual covenants and the agreements contained in thi s Agreement and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Vendor and Purcha se r covenant and agree as follows : I. Recitals true and correct. The foregoing recital s are true and correct. 2. Purchase and Sale . Subj ec t to the terms and conditions of this Agreement, the Vendor hereby sells , transfers and assigns to the Purchaser, and the Purchaser hereby purchases from the Vendor, all of the Vendor's right , title and intere s t in and to the Purcha se d Shares with effect as of the Closing Date and free and clear of any claim, pledge, lien, charge, encumbrance or security interests . 3. Purchase Price . The aggregate purchase price payable by the Purchaser to the Vendor for the Purch ase d Shares is $ 100 . 00 being $ 1 . 00 per share (the "Purchase Price " ) . 4. Payment of the Purchase Price . The Purchaser will pay the Purchase Price in full for the Purcha se d Shares to the Vendor on the Closing Date by cash, certified cheque, bank draft or wire transfer, or in such other manner as may be mutually agreed upon between the partie s . 5. Closing Date . Subject to the terms and conditions of thi s Agreement, the closin g of this transaction s hall take place on December 04 , 2024 (the "C losing Date") or on such earlier or later date and in such plac e as m ay be approved by all the partie s hereto . 6. Representations and Warranties of the Purchaser . The Purcha se r repre se nts and warrants to the Vendor as stated below and acknowledges that th e Vendor is relying on the accuracy of each such r e presentation and warranty in entering into this Agreement and completing the purcha se and sale contemplated h e rein : a. The Purcha se r ha s full power and authority to execute and d e liver this Agreement and to consummate th e transactions contemplated hereby . The execution and delivery of this Agreement and the consummation of the transaction s contemplated h e reby have been duly and validly authorized by the Purchaser . b. This Agreement has been duly and validly executed and delivered by the Purchaser and is a valid and legally binding agreement enforceable against the Purchaser in accordance w \ th its terms, 2
subjecl , o s to enforcement, lo bankruptcy, in s olvency a nd other laws affecting creditors' right s generally and to general principles of equity. c . The Purcha s er is p 11 rch 1111 ing the Purcha s ed Shore s ns principal for it s own account , and not on behalf of any olher person , for investment only ond not wilh o view to re s ale or di s tribution . 7. Ucprcscnt 11 llons nnd W 11 rrnnllu or the Vendor . The Vendor repre s ents and warrants to the Purchaser a s staled below ond acknowledge s thnl the Purchaser i s relying on 1 he accuracy of each s uch representation and warranty in entering inlo this Agreemenl and completing the purchase and sale contemplated herein : a. The Corporation i s still subsisting and hos not been dis s olved a s of the date of thi s Agr e ement . VISIONARY HOLDINGS INC . is the beneficial owner of record of the Purcha s ed Shares with a good and marketable title thereto, free of ony charge, mortgage, lien, pled g e , security intere s t or claim of any person whatsoever whether created by agreement , statute or otherwi s e by law . b. The Vendor has the full power and authority to execute and deliver thi s Agreement and to con s ummate the tran s actions contemplated hereby , and the execution and delivery of thi s A g reement and the consummation of the tran s actions contemplated hereby have been duly and validly authorized by the Vendor . e . This Agreement ho s been duly and validly executed and delivered by the Vendor and i s a valid and legally binding a g reement of the Vendor enforceable a g ain s t him or her in accordance with it s term s , subject, os to enforcement, to bankruptcy, insolvency and other law s affecting creditor s ' right s generally and to general principle s of equity . d . Neither the Vendor nor the Corporation i s a non - re s ident of Canada within the meanin g of the /11 c om e Tax A c t (Canada). 8. Covennnts by the Vendor . The Vendor cov e nants to the Purcha s er that it will do or cau s e to be done the following : a. Trnnsrcr of Purchased Shares On or before closing, the Vendor shall cau s e all neces s ary s tep s and corporate proceeding s to be taken to permit the Purchased shares to be duly and regularly transferred to the Purcha s er. b. Other Agr e ement At Clo s ing , the Vendor shall have executed and deliv e red such other documents as the Purcha s er may reasonably require lo effect the terms of this Agreement. 9. Survival of Warranties . The Representation s and warrantie s contained in thi s Agreement or contained in any document or certificate given in order to carry out the transactions contemplated hereby shall survive the Closing of the sale and purcha s e of the Purchased shares provided h e rein and, not with s tanding such Clo s ing . shall continue in full force and effect . JO . Conditions precedent to the Purchaser's obligations . The obligation of the Purcha s er to complete the purcha s e of the Purchased Shares under this Agreem e nt s hall be subject to the satisfaction of or compliance with, on the Closing Date, each of the following conditions precedent : a. Truth and accuracy of repre s entations and warranties on the Closing Date . All of the written representations and warranties of the Vendor made in or pursuant to this Agreement shall be tme 3
and correct in all material respects as on the Closing Dale and with the same effect as if made at and as of the Closing Dale . b. The Vendor shall have complied with all the covenants and agreements herein agreed to be perfonned or caused lo be performed by them on or prior to the Closing Date . c. Delivery of documents al the Closing Dale : The Vendor shall have delivered the Purchaser the corpornle document attached hereto ns Schedule "A" . 11. Indemnity by the Vendor . The Vendor hereby covenants and agrees to indemnify and save harmless the Purchaser from any damages, losses , costs, reasonable legal costs (including co s ts on a solicitor - client basi s ) , liabilities or expen s es arising from any claims, demands, causes of action or prosecutions which may ari s e from or due to any incorrectness in or breach of any representation, warranty, or covenants of the Vendor contained in this Agreement . 12. Indemnity by the Purchaser . The Purchaser hereby covenants and agrees to indemnify and save harmless the Vendor from any damages, losses, costs, reasonable legal costs (including costs on a solicitor - client basis) , liabilities or expenses arising from any claims, demands, causes of action or prosecutions which may arise from or due to any incorrectness in or breach of any representation , warranty, or covenants of the Purchaser contained in this Agreement . 13. Joint Preparation of Agreement . Each party hereto personally participated in the preparation of this agreement . It must be construed as if the parties were joint authors and it will not be construed against one party as if that party or that party's lawyer were the sole or majority author of the agreement . No doctrine or rule of contra proferentum will be applied to the interpretation of this agreement . 14. Independent Legal Advice . Each party hereto acknowledges that its has had independent legal advice on this transaction . Each party further acknowledges that it has read this Agreement in its entirety and has full knowledge of its contents, and is entering into this Agreement voluntarily without any undue influence, fraud or coercion whatsoever . 15. Miscellaneous. a. Entire Agreement . This Agreement constitutes the entire agreement between the parties with respect to the matters contained therein and except as stated in it and in the instruments and documents to be executed and delivered, contains all the representations and warranties of the respective parties . There are no oral representations or warranties or collateral agreements between the parties of any kind relating to the subject - matter herein . This Agreement may not be amended or modified in any respect except by written instrument signed by both parties . b. Further Assurances . Each of the parties shall from time to time diligently take or cause to be taken such action and execute and deliver or cause to be executed and delivered to the other such documents and further assurances as may, in the reasonable opinion of counsel for the other, be necessary or advisable to give effect to this Agreement . c. Governing law . This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein . The parties to this Agreement hereby irrevocably and unconditionally attorn to the jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals therefrom . d. Severability . In the event any provision of this Agreement, as amended from time - to - time shall be deemed invalid or void, in whole or in part, by any court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain in full force and effect . 4
e. lle 111 lln 1 ts , The di vision of thi s Agreement into orticlcs, sec tion s, paragraph s, s ubs ec tions and cluuscs 11 ml the insertion of heudings nrc for convenience of referen ce only and s h a ll n o t affect the c on s tni ction or interpretation of thi s A gree ment . f. Extended l \ le 1111 ln 1 t s , Unless otherwise s pecified , words i mporting th e si n g ul ar include the plur a l nm! vice versa and words importing gender include all genders . g. Cu11lt11ll1.cd Terms . Each cap itali ze d term ha s the meaning given to it in this Agreement. h. Assignment . Neither thi s Agreement nor any right s, remedie s, li ab ilities or obligations arising under it or by rea son of it sha ll be assignab le by any party without the prior written consent of the other parties . Subject theret o, thi s A g reement shall cnurc to the benefit o f and be binding on the parti es and their respective heir s, executors, administrators, per so n a l repre se ntative s, successors and permitted assigns . i. Currency. All refe rence s to sums of m o ney in thi s Agreement are deemed to be reference s to Canadian c urren cy . j. Wuiver . No party will be deemed to h av e waived the exerci se of any right that it holds under this Agreement unles s s uch waiver is m ade in writing . No waiver is m ade with respect t o any in sta nce invol vin g th e exercise of anysuch right will be deemed t o b e o waiver to any other in sta nce invo lving the right or with re spect to any other s uch right . k. Counterparts. Thi s Agr eeme nt 11nd any other r e lated d oc ument s may be executed in counterparts, each of w hich s hall be deemed nn o rigin a l nnd 1111 of which when tak e n together sha ll constitute one and the some in s trnm en t. Facsimile signature s hall be treated in all re spects as ha vi ng th e sa me effect ns nn original s ign a ture . Signnturc Page Follows s
IN WITNESS WHEREOF , ea c h of the partie s ha s executed thi s Agreement , a s of the d a y fir s t written abov e. SIGNED, SEALED AND DELIVERED In the pre s ence of : VISIONA Y Vendor) Per : _ - n - --------- - I have the authority to bind the corpor a tion . ) ) ) ) ) ) ) ) ) ) ) ) ) ) SUNSHINE WHALE PATH E - COMMERCE CO. , LTD. ) (Purchaser) ) ) Per: '/e!Acl,.CAvt :> '' ) Nam e : Yue Chun Shi ) Title: Director ) ) ) ) ) ) ) ) ) ) ) ) ) I have the authority to bind the corp ora tion . NEOCANAAN INVESTMENT CORPORATION (Corporation) Per: Name: Xiyong Hou Title : Director I have th e authority to bind the corpor a tion . 6 Lizhi Chen 2024 - 12 - 27 06:03:39 ------------------------------------------- - /s/ Fan Zhou Lizhi Chen 2024 - 12 - 27 06:03:58 ------------------------------------------- - /s/ Yue Chun Shi Lizhi Chen 2024 - 12 - 27 06:04:28 ------------------------------------------- - /s/ Xiyong Hou
Exhibit 99.2
Merger And Listing Agreement This Merger Listing Agreement (hereinafter referred to as the "Agreement") is made and entered into on Ja 02, 2025, by and among the following parties: Party A: Visionary Holdings Inc. (NASDAQ: GV) Party B: Yao Ding (Driver's License No: D4486 78907 00626 Party C: Xu Ye (Driver's License No: Y2001 - 78906 - 61021 Party D: Smarco Building Solution Inc. Under the "Merger Listing Intent Agreement" signed by Party A and Party D on August 8, 2024, and to complete the spin - off listing to achieve the maximum benefit for all parties, the parties agree to the following terms. 1. Definitions 1. "Agreement": Refers to this Merger Listing Intent Agreement. 2. "Closing": Refers to the completion of the transactions contemplated in this Agreement. 3. "Closing Date": Refers to the date of transaction completion. 4. "Effective Date": Refers to the effective date of the merger. 5. "Exchange Act": Refers to the U.S. Securities Exchange Act. 2. Merger and Spin - off Listing 1. Merger: On the Effective Date, subject to the terms and conditions of this Agreement, Parties B, C, and D shall reorganize with Party A following applicable U.S. securities laws and Canadian laws . 2. Purpose: The purpose of the merger is to achieve the spin - off and uplisting of Party D on NASDAQ. 3. Spin - off Listing Timeline: The spin - off listing of Party D shall occur within 18 months, with a maximum of 24 months. 4. Shareholding Requirements: Before the spin - off and listing on another board, Parties A, B, and Care prohibited from transferring Party D's shares, except for the joint release of shares during pre - listing financing.
2.5. Effective Date: This Agreement becomes effective upon signing by all four parties ("Effective Date"). 3. Merger Consideration, Share Transfer, and Transaction Method 1. Merger Consideration: After conducting due diligence and evaluation, and in consultation with all parties, Party A has determined Party D's valuation to be USO 1.1 million, following U.S. securities market rules. 2. Share Transfer: Party Band Party C collectively hold 100% of Party D's shares (100 shares total): • Party B holds 60% (60 shares) and transfers 36% (36 shares) to Party A. • Party C holds 40% ( 40 shares) and transfers 24% (24 shares) to Party A. After the transfer: • Party A holds 60% (60 shares). • Party B holds 24% (24 shares). • Party C holds 16% (16 shares). 1. Transaction Method: Party A, with its closing price of $2.376 per share on Ja 02, 2025, issues 555,556 restricted GV common shares at a 0.5 discount to Parties Band C: • Party B: 333,334 shares. • Party C: 222,222 shares. 4. Representationsand Warranties 1. Representations and Warranties of Parties B, C, and D: (a) Organization, Status, and Authority: Party Dis a corporat i on duly organized, validly existing, and in good standing under Canadian law. (b) Authorization: Parties B and C possess full authority to execute and deliver this Agreement and complete the transactions contemplated herein. (c) No Conflict: Execution and delivery of this Agreement do not conflict with Party D's bylaws or applicable laws, rules, regulations, judgments, or agreements. (d) Financial Statements: Party D has complete and accurate financial records and reports its taxes truthfully to the government annually. And. strictly comply with the requirements of the public company for financial governance and accounting. (e) Business Continuity: To ensure the sustained and stable operation and development of
( e) Business Continuity: To ensure the sustained and stable operation and development of Party D, the original business operations of Party D shall continue to be fully managed and handled by Party Band Party C, who will retain 100% decision - making authority over daily operations and management. However, Party B and Party C must comply with the laws and regulations of the U.S. Securities and Exchange Commission (SEC) and Nasdaq, as well as the corporate charter, business objectives, and financial management requirements of a listed company. They shall not violate U.S. securities laws, regulations, or the corporate charter governing publicly listed companies. (f) Cooperation: Parties B, C, and D shall actively cooperate with Party A in issuing GV stock and advancing the spin - off listing to ensure the successful completion of the merger and listing. 4.2. Representations and Warranties of Party A: (a) Organization, Status, and Authority: Party A is a corporation duly organized, validly existing, and in good standing under Canadian law. (b) Authorization: Party A has full corporate authority to execute and deliver this Agreement and to complete the contemplated transactions. (c) No Conflict: Execution and delivery of this Agreement do not conflict with Party A's bylaws or applicable laws, rules, or agreements. (ct) Business Continuity: Party A agrees to maintain Party D's existing management team for its original business operations. ( e) New Business: Party A will collaborate with Parties B and C on the management team for the spin - off listing and new business operations. (f) Repurchase: To incentivize Parties B and C, Party A agrees to transfer 10% of its shares in Party D back to them at a valuation of USD 1.1 million before Party D's spin - off listing. 5. Covenants Party D's operations must continue as usual until the Effective Date, without engaging in activities that could significantly alter its financial status, business, or operations. 6. Conditions for the Merger 1. The obligations of all parties to complete the merger. 2. No injunctions or restrictions from courts or legal authorities preventing the merger. 3. Pre - merger debts and earnings belong to the original shareholders of Party D; post merger debts and earnings will be distributed among shareholders in proportion to their
equity. 6.4. Party A's debts and liabilities are unrelated to Party D. 7. Miscellaneous 1. Responsibilities for Spin - off Listing: • Party A: Strategic planning, new business integration, listing preparations, and post - listing value optimization. • Parties Band C: Business development and meeting performance requirements for listing. 2. Compliance: All parties must adhere to SEC and NASDAQ laws and the terms of this Agreement. Breaches may result in liabilities, including share repurchase and compensation. 3. Notifications: All communications must be made via email. 4. Entire Agreement: This Agreement constitutes the full understanding among the parties and supersedes prior agreements. 5. Governing Law: This Agreement is governed by U.S. and Canadian laws. Disputes will be resolved in Ontario, Canada. 6. Amendments: Changes must be in writing and signed by all parties. 7. Copies: This Agreement is executed in four copies, with each party retaining one copy. Party A: Visionary Holdings Inc. Authorized Signatory: Party B: Yao Ding Signatory: Party C: Xu Ye Signatory: Party D: Smarco Building Solution Inc. Authorized Signatory:
Exhibit 99.3
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the “Agreement”) is dated as of [____*_____], 2024 by and among Visionary Holdings Inc., a Canadian company (the “Company”), and individuals listed in Exhibit B hereto with each of their signatures affixed 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”) as promulgated under the Securities Act.
Whereas, the Company is offering certain common shares, no par value (the “Common Shares”), to each of the Purchasers and each of such Purchasers agrees to purchase the Common Shares from the Company.
Whereas, each Purchaser is a “non-US person” as defined in Regulation S, acquiring the securities of the Company solely for its own account for the purpose of investment.
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 Purchasers hereby agree as follows:
ARTICLE I
Purchase and Sale
Section 1.1Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:
“Liens” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect” means any material adverse effect on (i) the business, properties, assets, liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any Subsidiary, individually or taken as a whole, (ii) the transactions contemplated hereby or in any of the other Transaction Documents or any other agreements or instruments to be entered into in connection herewith or therewith or (iii) the authority or ability of the Company or any of its Subsidiaries to perform any of their respective obligations under any of the Transaction Documents.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Purchase Price” means, as to each Purchaser, the aggregate amount to be paid for Shares purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Purchase Price,” in United States dollars and in immediately available funds.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Shares” means the Common Shares issued or issuable to each Purchaser pursuant to this Agreement.
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
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“Trading Market” means any of the following markets or exchanges on which the ADSs are listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction Documents” means this Agreement, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
Section 1.2 Purchase and Sale; Closing.
(a)Upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of 21,000,000 common shares at $1.0 per share for an aggregate consideration of $21,000,000.
(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 remotely by electronic transfer of the closing deliverables or at such other location as the parties shall mutually agree (the “Closing Date”).
(c)Upon to the terms and subject to conditions set forth herein, at the Closing the Company shall deliver or cause to be delivered to each Purchaser (i) a certificate for each Purchaser’s Shares, or in lieu of a physical certificate for such Shares, the evidence that the Company’s Transfer Agent, who is participating in the Depository Trust Company (“DTC”) DTC Fast Automated Securities Transfer Program (“FAST”) or a similar program, has deposited such Purchaser’s Shares in a DRS account, and (ii) any other documents required to be delivered pursuant to this Agreement. At the time of the Closing, each Purchaser shall have delivered its Purchase Price by wire transfer pursuant to the wire information contained in this Agreement or by check.
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 and its Subsidiaries as follows:
(a)Organization, Good Standing and Power. The Company is 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.
(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 other Transaction Documents, and to issue and sell the Shares in accordance with the terms hereof. The execution, delivery and performance of this Agreement and other Transaction Documents 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 requireds. 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 and the shares thereof issued and outstanding as of March 31, 2024 are set forth in the Company’s Form 20-F Annual Report for the year ended March 31, 2024 (the “Form 20-F”) and is the authorized and issued and outstanding capital stock of the Company as at the date hereof.
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(d)The Company has furnished or made available to the Purchaser true and correct copies of the Articles of Incorporation and Bylaws (the “Charter Documents”). Except as restricted under applicable federal, state, local or foreign laws and regulations, the Charter Documents, this Agreement, other Transaction Documents, no written or oral contract, instrument, agreement, commitment, obligation, plan or arrangement of the Company shall limit the payment of dividends on the Company’s Common Shares.
(e)Issuance of the Shares. The Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and non-assessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents or by law.
(f)Commission Documents, Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the U.S. Securities and Exchange Commission (the “Commission” or “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including the Form 20-F and other material filings pursuant to Section 13(a) or 15(d) of the Exchange Act (all of the foregoing including filings incorporated by reference therein being referred to herein as the “Commission Documents”) since December 31, 2023. The Company has not provided to any Purchaser any material non-public information or other information which, according to applicable law, rule or regulation, was required to have been disclosed publicly by the Company but which has not been so disclosed, other than (i) with respect to the transactions contemplated by the Transaction Documents, or (ii) pursuant to a non-disclosure or confidentiality agreement signed by the Purchaser.
(g)No Material Adverse Effect. As of December 31, 2023 till the date of this Agreement, the Company have not experienced or suffered any Material Adverse Effect.
(h)Title to Assets. Except where non-compliance would not have a Material Adverse Effect, each of the Company and the Subsidiaries has good and marketable title to (i) all properties and assets purportedly owned or used by them as reflected in the financial statements (the “Financial Statements”) included in the Commission Documents, and (ii) all properties and assets necessary for the conduct of their business as currently conducted, and (iii) all of the real and personal property reflected in the Financial Statements free and clear of any Lien. All leases are valid and subsisting and in full force and effect.
(i)Actions Pending. Except as disclosed in the Commission Documents, there is no action, suit, claim, investigation, arbitration, alternate dispute resolution proceeding or any other proceeding pending or, to the knowledge of the Company, threatened against or involving the Company which questions the validity of this Agreement or other Transaction Documents or the transactions contemplated hereby or thereby or any action taken or to be taken pursuant hereto or thereto. Except where the same would not have a Material Adverse Effect, there is no action, suit, claim, investigation, arbitration, alternate dispute resolution proceeding or any other proceeding pending or, to the knowledge of the Company, threatened against or involving the Company involving any of their respective properties or assets. To the knowledge of the Company, except as disclosed in the Commission Documents, there are no outstanding orders, judgments, injunctions, awards or decrees of any court, arbitrator or governmental or regulatory body against the Company, the Subsidiaries or any of their respective executive officers or directors in their capacities as such.
(j)Compliance with Law. The Company and the Subsidiaries have all material franchises, 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 franchises, 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.
(k)No Conflicts. The execution, delivery and performance of this Agreement and the Transaction Documents 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 Charter Documents, (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 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.
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(l)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.
(m)Intellectual Property. Each of the Company and the Subsidiaries owns or has the lawful right to use all patents, trademarks, domain names (whether or not registered) and any patentable improvements or copyrightable derivative works thereof, websites and intellectual property rights relating thereto, service marks, trade names, copyrights, licenses and authorizations, and all rights with respect to the foregoing, which are necessary for the conduct of their respective business as now conducted without any conflict with the rights of others, except where the failure to so own or possess would not have a Material Adverse Effect.
(n)Transactions with Affiliates. Except as set forth in the Financial Statements or in the Commission Documents, there are no loans, leases, agreements, contracts, royalty agreements, management contracts or arrangements or other continuing transactions between (a) the Company on the one hand, and (b) on the other hand, any officer, employee, consultant or director of the Company or any member of the immediate family of such officer, employee, consultant or director or any corporation or other entity controlled by such officer, employee, consultant or director, or a member of the immediate family of such officer, employee, consultant or director.
(o)Private Placement. Assuming the accuracy of each Purchaser’s representations and warranties set forth in Section 2.2, no registration under the Securities Act is required for the offer and sale of the Shares by the Company to the Purchaser as contemplated hereby. The issuance and sale of the Shares hereunder does not contravene the rules and regulations of the Trading Market.
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:
(a)No Conflicts. The execution, delivery and performance of this Agreement and the consummation by such Purchaser of the transactions contemplated hereby 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.
(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 hereto. 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.
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(e)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) of the Purchaser who agrees to sell or otherwise transfer the Shares only in accordance with this Section 2.2(e) 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. Notwithstanding the foregoing or anything else contained herein to the contrary, the Shares may be pledged as collateral in connection with a bona fide margin account or other lending arrangements.
(f)Legends. The Purchaser understands that the Shares shall bear a restrictive legend in the form as set forth below. 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 below (and a stop-transfer order may be placed against transfer of the certificates evidencing such Shares).
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT AND IN COMPLIANCE WITH ANY APPLICABLE LOCAL SECURITIES LAWS AND REGULATIONS, (C) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH ANY APPLICABLE LOCAL SECURITIES LAWS AND REGULATIONS, (D) IN COMPLIANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS OR (E) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, PROVIDED THAT, IN THE CASE OF (C), (D) OR (E), THE HOLDER HAS DELIVERED TO THE COMPANY AND THE REGISTRAR AND TRANSFER AGENT AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY AND THE REGISTRAR AND TRANSFER AGENT TO SUCH EFFECT. HEDGING TRANSACTIONS INVOLVING THE SECURITIES ARE PROHIBITED EXCEPT IN COMPLIANCE WITH THE 1933 ACT”
(g)Residency. The Purchaser is a resident of the jurisdiction set forth immediately below such Purchaser’s name on the signature pages hereto.
(h)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.
(i)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 that such person has been advised that Rule 144, as applicable, permits resales only under certain circumstances. Such Purchaser understands that to the extent that Rule 144 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.
(j)Brokers. Such 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 and other Transaction Documents.
(k)Acquisition for Investment. 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 and not with a view to or for sale in connection with a distribution to anyone.
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(l)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, the Transaction Documents 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 Shares.
ARTICLE III
ONDITIONS
Section 3.1 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 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 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 or other Transaction Documents.
(d)Delivery of Purchase Price. The Purchase Price 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.
Section 3.2 Conditions Precedent to the Obligation of each Purchaser to Purchase the Shares. The obligation hereunder of each Purchaser to acquire and pay for the Shares offered herein 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 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 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 or other Transaction Documents.
(d)No Proceedings or Litigation. No action, suit or proceeding before any arbitrator or any governmental authority shall have been commenced, and no investigation by any governmental authority shall have been threatened, against the Company, or any of the officers, directors or affiliates of the Company seeking to restrain, prevent or change the transactions contemplated by this Agreement or other Transaction Documents, or seeking damages in connection with such transactions.
(e)Certificates. The Company shall have delivered or caused to be delivered to the documents required in Section 1.2 (c) (i).
(f)Material Adverse Effect. No Material Adverse Effect shall have occurred at or before the Closing Date.
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ARTICLE IV
Indemnification
Section 4.1 General Indemnity. The Company agrees to indemnify and hold harmless each Purchaser (and their respective directors, officers, managers, agents, successors and assigns) from and against any and all losses, liabilities, deficiencies, costs, damages and expenses (including, without limitation, reasonable attorneys’ fees, charges and disbursements) incurred by such Purchaser as a result of any inaccuracy in or breach of the representations, warranties or covenants made by the Company herein. The Purchasers, severally but not jointly, agree to indemnify and hold harmless the Company and its directors, officers, affiliates, agents, successors and assigns from and against any and all losses, liabilities, deficiencies, costs, damages and expenses (including, without limitation, reasonable attorneys’ fees, charges and disbursements) incurred by the Company as a result of any inaccuracy in or breach of the representations, warranties or covenants made by such Purchaser herein. 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.
Section 4.2 Indemnification Procedure. Any party entitled to indemnification under this Article IV (an “Indemnified Party”) will give written notice to the indemnifying party of any matters giving rise to a claim for indemnification; provided, that the failure of any party entitled to indemnification hereunder to give notice as provided herein shall not relieve the indemnifying party of its obligations under this Article IV except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any action, proceeding or claim is brought against an Indemnified Party in respect of which indemnification is sought hereunder, the indemnifying party shall be entitled to participate in and, unless in the reasonable judgment of the Indemnified Party a conflict of interest between it and the indemnifying party may exist with respect of such action, proceeding or claim, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. In the event that the indemnifying party advises an Indemnified Party that it will contest such a claim for indemnification hereunder, or fails, within thirty (30) days of receipt of any indemnification notice to notify, in writing, such person of its election to defend, settle or compromise, at its sole cost and expense, any action, proceeding or claim (or discontinues its defense at any time after it commences such defense), then the Indemnified Party may, at its option, defend, settle or otherwise compromise or pay such action or claim. In any event, unless and until the indemnifying party elects in writing to assume and does so assume the defense of any such claim, proceeding or action, the Indemnified Party’s costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding shall be losses subject to indemnification hereunder. The Indemnified Party shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Party which relates to such action or claim. The indemnifying party shall keep the Indemnified Party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. If the indemnifying party elects to defend any such action or claim, then the Indemnified Party shall be entitled to participate in such defense with counsel of its choice at its sole cost and expense. The indemnifying party shall not be liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying party shall be liable for any settlement if the indemnifying party is advised of the settlement but fails to respond to the settlement within thirty (30) days of receipt of such notification. Notwithstanding anything in this Article IV to the contrary, the indemnifying party shall not, without the Indemnified Party’s prior written consent, settle or compromise any claim or consent to entry of any judgment in respect thereof which imposes any future obligation on the Indemnified Party or which does not include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim,
ARTICLE V
Miscellaneous
Section 5.1 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 5.2Consent to Jurisdiction. Each of the Company and the Purchaser 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 other Transaction Document or the transactions contemplated hereby or thereby.
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Section 5.3 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 Purchasers 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.
Section 5.4 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 5.4), 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:
Suite 301, No. 26 Dongzhimenwai Street
Chaoyang District, Beijing 100027
The People’s Republic of China
Attn: Fuying Yan, CO-CEO
Telephone No.: +86 10 8460 8818
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 5.5 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 5.6 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 5.7 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, provided, however, that, subject to federal and state securities laws, a Purchaser may assign its rights and delegate its duties hereunder in whole or in part to an affiliate or to a third party acquiring all or substantially all of its Shares in a private transaction without the prior written consent of the Company or the other Purchaser, after notice duly given by such Purchaser to the Company provided, that no such assignment or obligation shall affect the obligations of such Purchaser hereunder and that such assignee agrees in writing to be bound, with respect to the transferred securities, by the provisions hereof that apply to the Purchaser. The provisions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and 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 assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
Section 5.8 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York. This Agreement shall be interpreted or construed with any presumption against the party causing this Agreement to be drafted.
Section 5.9 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 two (2) years following the Closing Date.
Section 5.10 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, 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 signature were the original thereof.
Section 5.11 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.
[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:
Visionary Holdings Inc.
By: _______________
Name:
Title:
[Signature Page of the Company]
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:
Name:
Title:
Number of Common Shares Purchased:
Purchase Price: $
Address and Contacts of Purchaser:
Address:
Telephone:
Email:
]Signature Page of the Purchaser]
EXHIBIT A
NON U.S. PERSON REPRESENTATIONS
The Purchaser indicating that it is not a U.S. person, severally and not jointly, further represents and warrants to the Company as follows:
1. At the time of (a) the offer by the Company and (b) the acceptance of the offer by such Person of the Shares, such Person was outside the United States.
2. Such Person is acquiring the Shares for such Person’s own account, for investment and not for distribution or resale to others and is not purchasing the Shares for the account or benefit of any U.S. person, or with a view towards distribution to any U.S. person, in violation of the registration requirements of the Securities Act.
3. Such Person will make all subsequent offers and sales of the Shares either (x) outside of the United States in compliance with Regulation S; (y) pursuant to a registration under the Securities Act; or (z) pursuant to an available exemption from registration under the Securities Act. Specifically, such Person will not resell the Shares to any U.S. person or within the United States prior to the expiration of a period commencing on the Closing Date and ending on the date that is one year thereafter (the “Distribution Compliance Period”), except pursuant to registration under the Securities Act or an exemption from registration under the Securities Act.
4. Such Person has no present plan or intention to sell the Shares in the United States or to a U.S. person at any predetermined time, has made no predetermined arrangements to sell the Shares and is not acting as a distributor of such securities.
5. Neither such Person, its Affiliates nor any Person acting on behalf of such Person, has entered into, has the intention of entering into, or will enter into any put option, short position or other similar instrument or position in the U.S. with respect to the Shares at any time after the Closing Date through the Distribution Compliance Period except in compliance with the Securities Act.
6. Such Person consents to the placement of a legend on any certificate or other document evidencing the Shares substantially in the form set forth in the Agreement.
7. Such Person is not acquiring the Shares in a transaction (or an element of a series of transactions) that is part of any plan or scheme to evade the registration provisions of the Securities Act.
8. Such Person has sufficient knowledge and experience in finance, securities, investments and other business matters to be able to protect such Person’s interests in connection with the transactions contemplated by this Agreement and other Transaction Documents.
9. Such Person has consulted, to the extent that it has deemed necessary, with its tax, legal, accounting and financial advisors concerning its investment in the Shares.
10. Such Person understands the various risks of an investment in the Shares and can afford to bear such risks for an indefinite period of time, including, without limitation, the risk of losing its entire investment in the Shares.
11. Such Person has had access to the Company’s publicly filed reports with the SEC and has been furnished during the course of the transactions contemplated by this Agreement with all other public information regarding the Company that such Person has requested and all such public information is sufficient for such Person to evaluate the risks of investing in the Shares.
12. Such Person has been afforded the opportunity to ask questions of and receive answers concerning the Company and the terms and conditions of the issuance of the Shares.
13. Such Person is not relying on any representations and warranties concerning the Company made by the Company or any officer, employee or agent of the Company, other than those contained in this Agreement.
14. Such Person will not sell or otherwise transfer the Shares unless either (A) the transfer of such Shares is registered under the Securities Act or (B) an exemption from registration of such securities is available.
15. Such Person represents that the address furnished on its signature page to this Agreement is the principal residence if he is an individual or its principal business address if it is a corporation or other entity.
16. Such Person understands and acknowledges that the Shares have not been recommended by any federal or state securities commission or regulatory authority, that the foregoing authorities have not confirmed the accuracy or determined the adequacy of any information concerning the Company that has been supplied to such Person and that any representation to the contrary is a criminal offense.
EXHIBIT B
LIST OF PURCHASERS