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
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of November 2024
Commission File Number: 001-41675
GOLDEN HEAVEN GROUP HOLDINGS LTD.
No. 8 Banhouhaichuan Rd
Xiqin Town, Yanping District
Nanping City, Fujian Province, China 353001
(Address of principal executive office)
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 ☒
Form 40-F ☐
On November 18, 2024, Golden Heaven Group Holdings
Ltd. (the “Company”) entered into a securities purchase agreement (the “Securities Purchase Agreement”) with certain
investors. The investors agreed to subscribe for and purchase from the Company, through a private placement, a total of 20,000,000 Class
A Ordinary Shares for a total purchase price of US$25.2 million. In the event that the Company fails to meet certain operational and financial
targets by September 30, 2027, the Company will issue up to 10,000,000 Class A Ordinary Shares to the investors for no additional consideration.
The Company will use the proceeds from issuance of Class A Ordinary Shares for acquisition, upgrade, development, operation and maintenance
of parks.
In addition, pursuant to the Securities Purchase
Agreement, the Company will issue warrants (the “Warrants”) to the investors granting the investors the right to purchase
up to 40,000,000 Class A Ordinary Shares in aggregate at an exercise price of US$1.386. The Warrants will expire five (5) years after
issuance. The Warrants contain standard adjustments to the exercise price. The transactions contemplated under the Securities Purchase
Agreement are expected to close in November 2024.
Also on November 18, 2024, the Company entered
into a series of amendments to warrant with existing holders of warrants, pursuant to which, (i) the exercise price were amended to be
US$1.386, and (ii) the existing holders of warrants agreed to exercise their respective warrants in whole concurrently with execution
of such amendment.
The securities to be sold in this private placement
have not been registered under the U.S. Securities Act of 1933, as amended (the “Securities Act”), or any state or other applicable
jurisdiction’s securities laws, and may not be offered or sold in the United States absent registration or an applicable exemption
from the registration requirements of the Securities Act and applicable state or other jurisdictions’ securities laws.
On November 19, 2024, the
Company issued a press release, titled “Golden Heaven Group Holdings Ltd. Secures Investment of US$25.2 Million and Enters Into
Amendments to Outstanding Warrants”, a copy of which is included as Exhibit 99.1 to this Form 6-K.
The foregoing description
of the Securities Purchase Agreement, the Warrants and amendments to warrant does not purport to describe all terms and conditions thereof
and is qualified in its entirety by reference to the full texts of the form of the Securities Purchase Agreement, the form of a Warrant
and the form of an amendment to warrant, which are filed as Exhibits 99.2, 99.3 and 99.4 to this Form 6-K, respectively, and are incorporated
herein by reference.
EXHIBIT INDEX
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, thereunto duly authorized.
Dated: November 19, 2024
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GOLDEN HEAVEN GROUP HOLDINGS LTD. |
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By: |
/s/ Jin Xu |
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Name: |
Jin Xu |
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Title: |
Chief Executive Officer |
3
Exhibit 99.1
Golden Heaven Group Holdings Ltd. Secures Investment
of US$25.2 Million and Enters Into Amendments to Outstanding Warrants
NANPING, China, November 19, 2024 /PRNewswire/
-- Golden Heaven Group Holdings Ltd. (“Golden Heaven” or the “Company”) (Nasdaq: GDHG), an amusement park operator
in China, today announced that on November 18, 2024, the Company entered into a securities purchase agreement (the “Securities Purchase
Agreement”) with certain investors.
Pursuant to the Securities Purchase Agreement,
the investors agreed to subscribe for and purchase from the Company, through a private placement, a total of 20,000,000 Class A Ordinary
Shares for a total purchase price of US$25.2 million. In the event that the Company fails to meet certain operational and financial targets
by September 30, 2027, the Company will issue up to 10,000,000 Class A Ordinary Shares to the investors for no additional consideration.
The Company will use the proceeds from issuance of Class A Ordinary Shares for acquisition, upgrade, development, operation and maintenance
of parks.
As the part of the Securities Purchase Agreement,
the Company agreed to issue warrants (the “Warrants”) to the investors granting the investors the right to purchase up to
40,000,000 Class A Ordinary Shares in aggregate at an exercise price of US$1.386. The Warrants will expire five (5) years after issuance.
The Warrants contain standard adjustments to the exercise price. The transactions contemplated under the Securities Purchase Agreement
are expected to close in November 2024.
The Company also announced that, on November 18,
2024, it entered into a series of amendments to warrant with existing holders of warrants, pursuant to which, (i) the exercise price were
amended to be US$1.386, and (ii) the existing holders of warrants agreed to exercise their respective warrants in whole concurrently with
execution of such amendment.
About Golden Heaven Group Holdings Ltd.
Through its Chinese operating entities, the Company
manages and operates amusement parks, water parks and complementary recreational facilities. The parks offer a broad selection of exhilarating
and recreational experiences, including both thrilling and family-friendly rides, water attractions, gourmet festivals, circus performances,
and high-tech facilities. For more information, please visit the Company’s website at https://ir.jsyoule.com/.
Forward-Looking Statements
This press release contains “forward-looking
statements”. Forward-looking statements reflect our current view about future events. These forward-looking statements involve known
and unknown risks and uncertainties and are based on the Company’s current expectations and projections about future events that
the Company believes may affect its financial condition, results of operations, business strategy and financial needs. Investors can identify
these forward-looking statements by words or phrases such as “may,” “will,” “could,” “expect,”
“anticipate,” “aim,” “estimate,” “intend,” “plan,” “believe,”
“is/are likely to,” “propose,” “potential,” “continue” or similar expressions. The Company
undertakes no obligation to update or revise publicly any forward-looking statements to reflect subsequent occurring events or circumstances,
or changes in its expectations, except as may be required by law. Although the Company believes that the expectations expressed in these
forward-looking statements are reasonable, it cannot assure you that such expectations will turn out to be correct, and the Company cautions
investors that actual results may differ materially from the anticipated results and encourages investors to review other factors that
may affect its future results in the Company’s registration statement and other filings with the U.S. Securities and Exchange Commission.
For more information, please contact:
Golden Heaven Group Holdings Ltd.
Email: group@jsyoule.com
Ascent Investor Relations LLC
Phone: +1-646-932-7242
Email: investors@ascent-ir.com
Exhibit 99.2
SECURITIES
PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of November 18, 2024 (the “Effective Date”), between Golden Heaven
Group Holdings Ltd., an exempt company incorporated under the laws of Cayman Islands (the “Company”), and the purchasers
listed on Schedule I hereto (each, a “Purchaser” and collectively, the “Purchasers”). Each of the
Company and the Purchasers is referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, subject to the terms
and conditions set forth in this Agreement, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and
not jointly, desires to purchase from the Company, certain securities of the Company as more fully described in this Agreement.
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 each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions.
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:
“Action”
shall have the meaning ascribed to such term in Section 3.1(i).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors”
means the board of directors of the Company.
“Class A Ordinary
Shares” means the Class A ordinary shares of the Company, par value $0.005 per share, and any other class of securities into
which the Class A Ordinary Shares may hereafter be reclassified or changed.
“Closing”
means the closing of the purchase and sale of the Purchased Shares and the Warrants pursuant to Sections 2.1 and 2.4, respectively.
“Closing Date”
means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and
all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s obligations
to deliver the Purchased Shares and the Warrants, in each case, have been satisfied or waived, but in no event later than the second (2nd)
Trading Day following such date that the obligations are satisfied or waived.
“Commission”
means the United States Securities and Exchange Commission.
“Disclosure Schedules”
means the Disclosure Schedules of the Company delivered concurrently herewith in Schedule II hereto.
“Disclosure Time”
means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight
(New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless
otherwise instructed as to an earlier time by the Company, and (ii) if this Agreement is signed between midnight (New York City time)
and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise
instructed as to an earlier time by the Company.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse
Effect” shall have the meaning assigned to such term in Section 3.1(a).
“Ordinary Shares
Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Class A Ordinary
Shares, including, without limitation, any debt, preferred share, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Class A Ordinary Shares.
“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.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Purchased Shares”
means the Class A Ordinary Shares that each Purchaser will purchase at the Closing, the number of which is set forth opposite such Purchaser’s
name in Schedule I thereto.
“Regulation S”
means Rules 901 through 904, inclusive, under the Securities Act of 1933, as such Rules may from time to time be amended.
“Required Approvals”
shall have the meaning ascribed to such term in Section 3.1(d).
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(g).
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Short Sales”
means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include
locating and/or borrowing Class A Ordinary Shares).
“Subscription Amount”
means, as to each Purchaser, the aggregate amount to be paid for the Purchased Shares purchased by such Purchaser hereunder which is set
forth opposite such Purchaser’s name in Schedule I hereto.
“Subscription Price”
means US$1.26 per Class A Ordinary Share.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market”
means Nasdaq Stock Market, LLC.
“Transaction Documents”
means this Agreement, the Warrants, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection
with the transactions contemplated hereunder.
“Transfer Agent”
means Transhare Corporation, the current transfer agent of the Company, with a mailing address of Bayside Center 1, 17755 North U.S. Highway 19,
Suite #140, Clearwater, FL 33764, and any successor transfer agent of the Company.
“Warrant”
shall have the meaning ascribed to such term in Section 2.4.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to issue and sell to the
Purchasers, and the Purchasers, severally and not jointly, agree to purchase from the Company, up to an aggregate of 20,000,000
Class A Ordinary Shares at the Subscription Price. At the Closing, the Company shall deliver to each Purchaser its respective
Purchased Shares, and the Company and each Purchaser shall deliver the other items set forth in Section 2.2. Upon
satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at such
location or locations as the parties shall mutually agree. Settlement of the Purchased Shares shall occur via “Delivery Versus
Payment” (“DVP”) (i.e. the Company shall deliver the Purchased Shares and the Warrants to such Purchaser on
or before the Closing Date and, upon receipt, such Purchaser shall wire its Subscription Amount in United States dollars and in
immediately available funds to an account designated in writing by the Company). For the avoidance of doubt, all actions at the
Closing (including, without limitation, issuance of the Purchased Shares to each Purchasers and payment of the Subscription Amount
of each Purchaser) shall be considered part of an integrated transaction, and the Closing shall not occur or to be valid unless all
actions to be completed at the Closing are performed and completed together at the Closing.
2.2 Deliveries.
(a) On or prior to the Closing
Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement
with all exhibits and schedules thereto duly executed by the Company;
(ii) subject to
the last sentence of Section 2.1, the Company shall have provided each Purchaser with the Company’s wire instructions, on
the Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer; and
(iii) subject to
the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to
deliver to the Purchaser Shares equal to such Purchaser’s Subscription Amount divided by the Subscription Price, registered in the
name of such Purchaser.
(b) On or prior to the Closing
Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this Agreement
with all exhibits and schedules thereto duly executed by such Purchaser; and
(ii) such Purchaser’s
Subscription Amount, which shall be made available for “Delivery Versus Payment” settlement with the Company or its designee.
2.3 Closing Conditions.
(a) The obligations of the
Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy
in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in
all respects) on the Closing Date of the representations and warranties of each Purchaser contained herein (unless as of a specific date
therein in which case they shall be accurate as of such date);
(ii) all obligations,
covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery
by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The respective obligations
of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy
in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in
all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a
specific date therein in which case they shall be accurate as of such date);
(ii) all obligations,
covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery
by the Company of the items set forth in Section 2.2(a) of this Agreement; and
(iv) there shall
have been no Material Adverse Effect with respect to the Company since the date hereof.
2.4 Warrants. In consideration
of entering into this Agreement, at the Closing, the Company shall issue warrants to the Purchasers granting the Purchasers the right
to purchase up to 40,000,000 Class A Ordinary Shares, in aggregate (each a “Warrant”). The Warrants shall have a term
of five (5) years and an exercise price of US$1.386 per Class A Ordinary Share. The number of Class A Ordinary Shares issuable to each
Purchaser upon exercise of the Warrants is set forth opposite such Purchaser’s name in Schedule I hereto. The form of such
Warrant is attached to this Agreement as Exhibit A (“Form of Warrant”) hereto. The number of Class A Ordinary Shares purchasable
upon the exercise of each Warrant and exercise price of shall be subject to adjustment as provided in Section 7 of such Warrant.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the SEC Reports or in the Disclosure Schedules, which Disclosure Schedules shall
be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the
corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Organization
and Qualification. The Company is an entity duly incorporated or otherwise organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently conducted. The Company is not in violation nor default of any of the
provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. The
Company is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction
in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure
to be so qualified or in good standing, as the case may be, would not have or reasonably be expected to result in: (i) a material
adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the
results of operations, assets, business, prospects or condition (financial or otherwise) of the Company, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and, except as disclosed in the SEC Reports or
in Schedule 3.1(a) of the Disclosure Schedules, no Proceeding has been instituted in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(b) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further
action is required by the Company, the Board of Directors or the Company’s shareholders in connection herewith or therewith other
than in connection with the Required Approvals. This Agreement and each other Transaction Document to which the Company is a party has
been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i)
as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies, and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
(c) No Conflicts.
The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the
issuance and sale of the Purchased Shares and the consummation by it of the transactions contemplated hereby and thereby do not and will
not (i) conflict with or violate any provision of the Company’s certificate or articles of incorporation, bylaws or other organizational
or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become
a default) under, result in the creation of any Lien upon any of the properties or assets of the Company, or give to others any rights
of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or
both) of, any agreement, credit facility, debt or other instrument (evidencing a Company debt or otherwise) or other understanding to
which the Company is a party or by which any property or asset of the Company is bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court
or governmental authority to which the Company is subject (including federal and state securities laws and regulations), or by which any
property or asset of the Company is bound or affected; except in the case of each of clauses (ii) and (iii), such as would not have or
reasonably be expected to result in a Material Adverse Effect.
(d) Filings, Consents
and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or governmental authority or other Person in connection with the execution, delivery and performance
by the Company of the Transaction Documents, other than any filings as are required to be made under applicable United States federal
and state securities laws (the “Required Approvals”).
(e) Issuance of the
Purchased Shares; Registration. The Purchased 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 nonassessable, free and clear of all Liens imposed by the Company.
The Company has reserved from its duly authorized share capital the number of Class A Ordinary Shares issuable pursuant to this Agreement.
(f) Capitalization.
The capitalization of the Company as of the end of the period covered by its most recently filed periodic report under the Exchange
Act was set forth in such periodic report. Except as set forth in Schedule 3.1(f) of the Disclosure Schedules, the Company has not
issued any securities since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of
employee stock options under the Company’s stock option plans, the issuance of Class A Ordinary Shares to employees pursuant
to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Ordinary Shares Equivalents
outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first
refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the
Transaction Documents. Except as set forth in Schedule 3.1(f) of the Disclosure Schedules, except for options granted under the
Company’s stock option plans and other than pursuant to the conversion and/or exercise of Class A Ordinary Shares equivalent
outstanding disclosed in the Company’s SEC Reports, there are no outstanding options, warrants, scrip rights to subscribe to,
calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable
or exchangeable for, or giving any Person any right to subscribe for or acquire, any Class A Ordinary Shares, or contracts,
commitments, understandings or arrangements by which the Company is or may become bound to issue additional Class A Ordinary Shares
or Ordinary Shares Equivalents. The issuance and sale of the Purchased Shares will not obligate the Company or to issue Class A
Ordinary Shares or other securities to any Person (other than the Purchasers). Except as set forth in Schedule 3.1(f) of the
Disclosure Schedules, there are no outstanding securities or instruments of the Company with any provision that adjusts the
exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company. There
are no outstanding securities or instruments of the Company that contain any redemption or similar provisions, and there are no
contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the
Company. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar
plan or agreement. All of the outstanding share capital of the Company are duly authorized, validly issued, fully paid and
nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was
issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or
authorization of any shareholder, the Board of Directors or others is required for the issuance and sale of the Purchased Shares.
There are no shareholder agreements, voting agreements or other similar agreements with respect to the Company’s share capital
to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s shareholders.
(g) SEC Reports; Financial
Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date
hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials being
collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time
of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared
in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company as of
and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments.
(h) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as set forth in the SEC Reports, (i) there has been no event, occurrence or development that has had
or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent
with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or
disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not
declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any
agreements to purchase or redeem any share capital and (v) the Company has not issued any equity securities to any officer, director
or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any
request for confidential treatment of information. Except for the issuance of the Purchased Shares contemplated by this Agreement,
no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or
exist with respect to the Company that would be required to be disclosed by the Company under applicable securities laws at the time
this representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this
representation is made.
(i) Litigation.
Except as set forth in the SEC Reports or in Schedule 3.1(i) of the Disclosure Schedules, there is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, before
or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) that (i) adversely affects or challenges the legality, validity or enforceability of any of the
Transaction Documents or the Purchased Shares or (ii) would, if there were an unfavorable decision, have or reasonably be expected to
result in a Material Adverse Effect. Except as set forth in the SEC Reports or in Schedule 3.1(i) of the Disclosure Schedules, neither
the Company nor, to the Company’s knowledge, any director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty that would, if there
were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Except as set forth in the SEC Reports
or in Schedule 3.1(i) of the Disclosure Schedules, to the knowledge of the Company, there is not pending or contemplated, any investigation
by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any
stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Exchange Act or the
Securities Act.
(j) Certain Fees.
No brokerage or finder’s fees or commissions are or will be payable by the Company to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents.
The Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for
fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
(k) Registration Rights.
No Person has any right to cause the Company to effect the registration of any securities of the Company under the Securities Act and
no registration rights of any kind are granted to the Purchasers under the Transaction Documents.
(l) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company
confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel
with any information that it believes constitutes or might constitute material, non-public information which is not disclosed in the
SEC Reports. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting
transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers
regarding the Company, their respective businesses and the transactions contemplated hereby, including any Disclosure Schedules to
this Agreement and the SEC Reports, is, to the best knowledge of the Company, true and correct and does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of
the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve
months preceding the date of this Agreement taken as a whole with the SEC Reports do not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser
makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those
specifically set forth in Section 3.2 hereof.
(m) Legend. Each certificate
representing the Purchased Shares shall be endorsed with the following legends, in addition to any other legend required to be placed
thereon by applicable federal or state securities laws:
“THE SECURITIES
ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“THE
SECURITIES ACT”)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN
RELIANCE UPON REGULATION S PROMULGATED UNDER THE SECURITIES ACT.”
“TRANSFER OF
THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES
ACT, OR PURSUANT TO AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT.”
The Purchaser consents to
the Company making a notation in its records or giving instructions to the transfer agent of the Company in order to implement the restrictions
on transfer of the Purchased Shares set forth in this Section 3.1(m).
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate
as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership limited
liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction
Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized
by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser.
Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it
in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.
(b) No Registration.
Such Purchaser is aware that the sale of the Purchased Shares and the Warrants has not been registered under the Securities Act, or any
state securities laws or regulations in reliance upon the exemption set forth in Section 4(2) of the Securities Act and the safe harbor
set forth in Regulation S that provides that certain offerings conducted outside the United States of America are not subject to the registration
requirements of the Securities Act, and similar exemptions under state law. The Purchaser will not offer, sell or otherwise transfer the
Purchased Shares and the Warrants unless they are registered or are exempt from registration under the Securities Act and any applicable
state securities laws or regulations.
(c) Understandings
or Arrangements. Such Purchaser is acquiring the Purchased Shares and the Warrant as principal for its own account and has no direct
or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Purchased Shares
and Warrant (this representation and warranty not limiting such Purchaser’s right to sell the Purchased Shares and the Warrant pursuant
to a registration statement or otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring
the Purchased Shares and the Warrant hereunder in the ordinary course of its business.
(d) Foreign Investor
Compliance. Such Purchaser hereby represents that he or she or it has satisfied itself as to the full observance by the Purchaser
of the laws of its jurisdiction applicable to the Purchaser in connection with the purchase of the Purchased Shares or the execution and
delivery by the Purchaser of this Agreement and the Transaction Documents, including (i) the legal requirements within its jurisdiction
for the purchase of the Purchased Shares, (ii) any foreign exchange restrictions applicable to the purchase, (iii) any governmental or
other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the Purchaser’s
purchase, holding, redemption, sale, or transfer of the Purchased Shares. The Purchaser’s subscription and payment for, and continued
beneficial ownership of, the Purchased Shares will not violate any securities law or other laws of the Purchaser’s jurisdiction
applicable to the Purchaser.
(e) Regulation S.
The Purchaser is a non-U.S. person (as such term is defined in Rule 902 of Regulation S) and is not acquiring the Purchased Shares
for the account or benefit of a U.S. person. The Purchaser will not, within six (6) months of the date of the transfer of the
Purchased Shares to the Purchaser, (i) make any offers or sales of the Purchased Shares in the United States or to, or for the
benefit of, a U.S. person (in each case, as defined in Regulation S) other than in accordance with Regulation S or another exemption
from the registration requirements of the Securities Act, or (ii) engage in hedging transactions with regard to the Purchased Shares
unless in compliance with the Securities Act. Neither the Purchaser nor any of the Purchaser’s Affiliates or any person acting
on his/her or their behalf has engaged or will engage in directed selling efforts (within the meaning of Regulation S) with respect
to the Purchased Shares, and all such persons have complied and will comply with the offering restriction requirements of Regulation
S in connection with the offering of the Purchased Shares outside of the United States.
(f) Experience of
Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Purchased
Shares, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment
in the Purchased Shares and, at the present time, is able to afford a complete loss of such investment.
(g) Access to Information.
Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules
thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of the Company concerning the terms and conditions of the offering of the Purchased Shares and the merits
and risks of investing in the Purchased Shares; (ii) access to information about the Company and its financial condition, results of operations,
business, properties, management and prospects sufficient to enable it to evaluate its investment; (iii) the opportunity to obtain such
additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed
investment decision with respect to the investment; and (iv) the opportunity to consult such professionals, including such Purchaser’s
counsel, as such Purchaser deemed fit. No representations, assurances or warranties have been made to such Purchaser, or any of his advisers
or affiliates, by the Company or by any of its respective officers, directors, agents, employees or Affiliates, nor anyone else on their
behalf, concerning, among others, the future profitability of the Company or the Purchaser’s investment in it, and in entering into
this transaction such Purchaser is not relying upon any information, other than the results of his, or his advisers’ or Affiliates’,
own independent investigation.
(h) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor
has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any
purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such
Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth
the material pricing terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof.
Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set
forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment
decision to purchase the Purchased Shares covered by this Agreement. Other than to other Persons party to this Agreement or to such
Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors,
employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with
this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for the avoidance of doubt,
nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or
borrowing shares in order to effect Short Sales or similar transactions in the future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Additional
Shares.
(a) The
Company shall achieve both of the following targets no later than September 30, 2027: (i) the number of parks that are owned by the Company
(including through its subsidiaries) and/or use brands of the Company and its subsidiaries (including but not limited to “Jinsheng”
and its associated names) shall be no less than 10 (the “Operational Target”), and (ii) the net income of the Company
set forth in the audited consolidated financial statement for the fiscal year ended September 30, 2027 shall be no less than US$8,000,000
(the “Financial Target”).
(b) In
the event that the Company fails to achieve the Operational Target, promptly after September 30, 2027, the Company shall issue to each
Purchaser for no additional consideration, such number of Class A Ordinary Shares computed using the following formula:
P1 = (Operational Target – A) * B
Operational
Target
| |
Where |
P1 = |
the number of Class A Ordinary Shares to be issued to such Purchaser pursuant to this Section 4.1(b) |
|
| |
|
|
|
|
| |
|
A = |
the number of parks that are owned by the Company (including through its subsidiaries) and/or use brands of the Company and its subsidiaries (including but not limited to “Jinsheng” and its associated names) as of September 30, 2027 |
|
| |
|
|
|
|
| |
|
B = |
the number of the Purchased Shares of such Purchaser |
|
(c) In
the event that the Company fails to achieve the Financial Target, promptly after the Company’s delivery of the audited consolidated
financial statement for the fiscal year ended September 30, 2027 to the Purchasers, the Company shall issue to each Purchaser for no additional
consideration, such number of Class A Ordinary Shares computed using the following formula:
P2 = (Financial Target – C) * B
Financial
Target
| |
Where |
P2 = |
the number of Class A Ordinary Shares to be issued to such Purchaser pursuant to this Section 4.1(c) |
|
| |
|
|
|
|
| |
|
B = |
the number of the Purchased Shares of such Purchaser |
|
| |
|
|
|
|
| |
|
C = |
the net income of the Company set forth in the audited consolidated financial statement for the fiscal year ended September 30, 2027 |
|
(d) Notwithstanding
anything to the contrary herein, in no event shall the Company issue Class A Ordinary Shares to any Purchaser pursuant to this Section
4.1 in aggregate in excess of 50% of the Purchased Shares of such Purchaser.
4.2 Securities Laws
Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of the
transactions contemplated hereby, and (b) file a Current Report on Form 6-K, including the Transaction Documents as exhibits
thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the
Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of
the Purchasers by the Company, or any of its respective officers, directors, employees or agents in connection with the transactions
contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges
and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company
or any of its respective officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchasers or any of
their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult with each other in issuing any
other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any
such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press
release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which
consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing
party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing
with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as
required by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the
extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with
notice of such disclosure permitted under this sub-clause (b).
4.2 Non-Public Information.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be
disclosed pursuant to Section 4.1, the Company covenants and agrees that neither it, nor any other Person acting on its behalf
will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes,
material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information and agreed
with the Company to keep such information confidential. The Company understands and confirms that each Purchaser shall be relying on the
foregoing covenant in effecting transactions in securities of the Company. To the extent that any notice provided pursuant to any Transaction
Document constitutes, or contains, material, non-public information regarding the Company, the Company shall simultaneously file such
notice with the Commission pursuant to a Current Report on Form 6-K. The Company understands and confirms that each Purchaser shall be
relying on the foregoing covenant in effecting transactions in securities of the Company.
4.3 Use of Proceeds.
The Company currently intends to use the net proceeds from the sale of the Purchased Shares hereunder for acquisition, upgrade, development,
operation and maintenance of parks.
4.4 Certain Transactions
and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate
acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the
Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.2.
Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by
this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.2, such Purchaser
will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules.
In the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of
assets managed by the portfolio manager that made the investment decision to purchase the Purchased Shares covered by this Agreement.
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by the Company or any Purchaser, as to such Purchaser’s obligations hereunder only and without
any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other party(ies), if the
Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof.
5.2 Fees and Expenses.
Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers,
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. The Company shall pay all Transfer Agent fees (including, without limitation, any
fees required for same-day processing of any instruction letter delivered by the Company), stamp taxes and other taxes and duties levied
in connection with the delivery of any Purchased Share to the Purchasers.
5.3 Entire Agreement.
The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect
to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such
matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices. Any
and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via facsimile
at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30
p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is
delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached
hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd)
Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt
by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the
signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company, the Company shall simultaneously file such notice with the Commission pursuant
to a Current Report on Form 6-K.
5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Company and the Purchasers which purchased at least 50.1% in interest of the Purchased Shares
based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any such
waived provision is sought. No waiver 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 subsequent default or a waiver of any other provision,
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. Any amendment effected in accordance with this Section 5.5 shall be binding upon each
Purchaser and holder of Purchased Shares and the Company.
5.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.7 Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
No Purchaser may assign this Agreement or any rights or obligations hereunder without the prior written consent of the Company.
5.8 No Third-Party
Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns
and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
5.9 Governing Law.
All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such 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 contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action
or Proceeding to enforce any provisions of the Transaction Documents, then the prevailing party in such Action or Proceeding shall be
reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Action or Proceeding.
5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Purchased Shares.
5.11 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery
of a “.pdf” format data file or any electronic signature complying with the U.S. federal ESIGN Act of 2000, the Uniform Electronic
Transactions Act, or other applicable law (e.g., www.docusign.com), such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile, “.pdf,”
or electronic signature page were an original thereof.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission and
Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the
other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and the
Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw,
in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part
without prejudice to its future actions and rights.
5.14 Replacement of
Purchased Shares. If any certificate or instrument evidencing any Purchased Shares is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu
of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company
of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Purchased Shares.
5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby
agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
5.16 Independent Nature
of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The
Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not
because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained
in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the Purchasers.
5.17 Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein
shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading Day.
5.19 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and number of Class A Ordinary Shares in any Transaction Document shall be subject to adjustment for reverse and forward
stock splits, stock dividends, stock combinations and other similar transactions of the Class A Ordinary Shares that occur after the date
of this Agreement.
5.20 WAIVER OF JURY
TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY
AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES
FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties hereto have caused
this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Golden
Heaven Group Holdings Ltd.
Address for notice
No. 8 Banhouhaichuan Rd, Xiqin
Town, Yanping District, Nanping City, Fujian
Province, China 353001
With a copy to (which shall not constitute notice):
Loeb & Loeb LLP
2206-19 Jardine House, 1 Connaught Place, Hong Kong
Attention: Henry Yin; Benjamin Yao
Email: henry.yin@loeb.com; byao@loeb.com
and
Loeb & Loeb LLP
345 Park Avenue, New York, NY 10154, United States
Attention: Alex Weniger-Araujo
Email: aweniger@loeb.com
Signature Page to Securities
Purchase Agreement
IN WITNESS WHEREOF, the parties hereto have caused
this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
PURCHASER:
| [Name of purchaser] |
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| By: |
|
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| Name: |
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| Title: |
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| Address for notice |
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| Attention: |
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| Address: |
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| E-mail: |
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Signature Page to Securities Purchase
Agreement
SCHEDULE I
SCHEDULE OF PURCHASERS AND PURCHASED SHARES
Schedule I to Securities
Purchase Agreement
SCHEDULE II
DISCLOSURE SCHEDULES.
Schedule
II to Securities Purchase Agreement
EXHIBIT A
FORM OF WARRANT
Exhibit 99.3
THIS
WARRANT AND THE SECURITIES TO BE ISSUED UPON ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND THE WARRANT MAY NOT BE
EXERCISED BY OR ON BEHALF OF ANY U.S. PERSON UNLESS REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”) OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. IN ORDER TO EXERCISE THIS WARRANT, THE HOLDER MUST FURNISH TO THE COMPANY
AND THE WARRANT AGENT EITHER (A) A WRITTEN CERTIFICATION THAT IT IS NOT A U.S. PERSON AND THE WARRANT IS NOT BEING EXERCISED ON BEHALF
OF A U.S. PERSON OR (B) A WRITTEN OPINION OF COUNSEL TO THE EFFECT THAT THE SECURITIES DELIVERED UPON EXERCISE OF THE WARRANT HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OR THAT THE DELIVERY OF SUCH SECURITIES IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS IN THIS LEGEND HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
GOLDEN
HEAVEN GROUP HOLDINGS LTD.
WARRANT FOR THE PURCHASE OF SHARES
| Date:
[ ] |
Number
of Shares: [ ] |
For
Value Received, Golden Heaven Group Holdings Ltd., a company organized under the laws of Cayman Islands (the “Company”),
with its principal office located at No. 8 Haichuan Road, Banhou, Xiqin Town, Yanping District, Nanping City, Fujian Province, China,
353001 and registered office at Harneys Fiduciary (Cayman) Limited, 4th Floor, Harbour Place, 103 South Church Street, P.O. Box 10240,
Grand Cayman KY1-1002, Cayman Islands, hereby certifies that ______________________, a _________________ [type of entity] (“Holder”),
or its assigns, in partial consideration for entering into that certain securities purchase agreement, dated as of ________________,
2024, by and among the Company, Holder and other parties listed therein, is entitled, subject to the provisions of this Warrant, to purchase
from the Company the number of fully paid and nonassessable Class A Ordinary Shares, par value of $0.005 per share, of the Company (the
“Warrant Shares”).
Holder
may purchase the afore-mentioned number of the Warrant Shares of the Company at a purchase price per share (as appropriately adjusted
pursuant to Section 7 hereof) of $1.386 (the “Exercise Price”). The term “Class A Ordinary
Shares” shall mean the Class A Ordinary Shares of the Company, together with any other equity securities that may be issued
by the Company in substitution therefor as provided herein.
The
number of the Warrant Shares to be received upon the exercise of this Warrant and the price to be paid for a share of Warrant Shares
are subject to adjustment from time to time as hereinafter set forth.
Section 1. EXERCISE OF WARRANT. This
Warrant may be exercised in whole or in part on any business day prior to the Expiration Date (as hereinafter defined) by presentation
and surrender hereof to the Company at its principal office at the address set forth in the initial paragraph hereof (or at such other
address as the Company may hereafter notify Holder in writing) with the Purchase Form annexed hereto duly executed and accompanied by
proper payment of the Exercise Price in lawful money of the United States of America in the form of a check, subject to collection, or
in the form of an electronic transfer of funds, for the number of shares of Warrant Shares specified in the Purchase Form. If this Warrant
should be exercised in part only, the Company shall, upon surrender of this Warrant, execute and deliver a new Warrant evidencing the
rights of Holder thereof to purchase the balance of the Warrant Shares purchasable hereunder. Upon receipt by the Company of this Warrant
and such Purchase Form, together with proper payment of the Exercise Price, at the principal office of the Company, Holder shall be deemed
to be the holder of record of the Warrant Shares, notwithstanding that the transfer books of the Company shall then be closed or that
certificates representing such Warrant shares shall not then be actually delivered to Holder, subject to applicable laws and regulations.
Section 2. CASHLESS EXERCISE. With
the consent of the Company or in the event of the Sale of the Company as defined in Section 10 herein, this Warrant may be exercised,
in whole or in part, by means of a “cashless exercise” by surrendering this Warrant (satisfactorily delivered in accordance
with Section 1 above) at the principal office of the Company together with the properly endorsed Purchase Form and notice of such election,
in which event the Company shall issue to Holder a number of the Warrant Shares computed using the following formula:
|
Where |
X = |
the
number of Warrant Shares to be issued to Holder |
| |
|
|
| |
|
Y = |
the
number of Warrant Shares purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such calculation) |
| |
|
|
| |
|
A = |
the
fair market value of one share Warrant Share (at the date of such calculation) |
| |
|
|
| |
|
B = |
Exercise
Price (as adjusted to the date of such calculation) |
For
purposes of this Section 2, the fair market value of Warrant Shares on the date of calculation shall mean with respect to each Warrant
Share:
(a) if
Warrant Shares are traded on a securities exchange or The Nasdaq Stock Market or actively traded over-the-counter:
(1) if
Warrant Shares are traded on a securities exchange, the fair market value shall be deemed to be the average of the closing prices over
the ten (10) day period ending three days before the date of calculation;
(2) if
Warrant Shares are actively traded over-the-counter, the fair market value shall be deemed to be the average of the closing bid or sales
price (whichever is applicable) over the ten (10) day period ending three days before the date of calculation; or
(b) if
neither (1) nor (2) is applicable, the fair market value of Warrant Shares shall be at the highest price per share which the
Company could obtain on the date of calculation from a willing buyer (not a current employee or director) for shares of Warrant Shares
sold by the Company, from authorized but unissued shares, as determined in good faith by the Board of Directors of the Company, taking
into consideration, without limitation, the most recent sales of the Company’s share capital.
(d) to
the extent this Warrant is not previously exercised, it shall be automatically exercised in accordance with this Section 2 prior
to any termination in accordance with Section 9.
Section 3. RESERVATION OF SHARES. Subject
to approval of increase in the Company’s authorized share capital, the Company hereby agrees that at all times there shall be reserved
for issuance and delivery upon exercise of this Warrant all of its Class A Ordinary Shares or other share capital of the Company from
time to time issuable upon exercise of this Warrant, as applicable. All such shares shall be duly authorized and, when issued upon such
exercise in accordance with the terms of this Warrant, shall be validly issued, fully paid and nonassessable. The Company shall
use its best efforts to obtain such approval of increase in the Company’s authorized share capital at its next annual general meeting
of shareholders.
Section 4. FRACTIONAL INTEREST. The
Company will not issue a fractional Warrant Shares upon exercise of a Warrant. Instead, the Company will deliver its check for the current
market value of the fractional share. The current market value of a fraction of a share is determined as follows: multiply the current
fair market value (as determined as set forth in Section 2) of a full share by the fraction of a share and round the result to the
nearest cent.
Section 5. TRANSFERS;
ASSIGNMENT OR LOSS OF WARRANT.
(a) Subject
to the terms and conditions contained in Section 11 hereof, this Warrant and all rights hereunder are transferable in whole or in
part by Holder and any successor transferee; provided that prior to such transfer Holder shall give thirty (30) days prior written
notice of any such transfer to the Company, and the Company shall have the right to acquire the Warrant under the identical provisions
contained in such notice by giving Holder written notice within fifteen (15) days of receipt of such notice. The Company’s
failure to respond to said notice within said fifteen (15) days shall be deemed a waiver of this right of first refusal. The transfer
shall be recorded on the books of the Company upon receipt by the Company of the Transfer Notice annexed hereto at its principal offices
and the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer.
(b) Holder
shall not, without obtaining the prior written consent of the Company, which consent shall not be unreasonably withheld, assign its interest
in this Warrant in whole or in part to any person or persons. Subject to the provisions of Sections 5(a) and 12, upon surrender
of this Warrant to the Company or at the office of its transfer agent or warrant agent, with the Assignment Form annexed hereto duly
executed and funds sufficient to pay any transfer tax, the Company shall, without charge, execute and deliver a new Warrant or Warrants
in the name of the assignee or assignees named in such instrument of assignment (any such assignee will then be a “Holder”
for purposes of this Warrant) and, if Holder’s entire interest is not being assigned, in the name of Holder, and this Warrant shall
promptly be canceled.
(c) Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss,
theft or destruction) of indemnification satisfactory to the Company, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver a new Warrant of like tenor and date. In the event that this Warrant is lost, stolen, destroyed
or mutilated, Holder shall pay all reasonable attorneys’ fees and expenses incurred by the Company in connection with the replacement
of this Warrant and the issuance of a new Warrant.
Section 6. RIGHTS OF HOLDER. Holder
shall not, by virtue hereof, be entitled to any rights of a shareholder in the Company, either at law or equity, and the rights of Holder
are limited to those expressed in this Warrant. Nothing contained in this Warrant shall be construed as conferring upon Holder hereof
the right to vote or to consent or to receive notice as a shareholder of the Company on any matters or with respect to any rights whatsoever
as a shareholder of the Company. No dividends or interest shall be payable or accrued in respect of this Warrant or the interest represented
hereby or the Warrant Shares purchasable hereunder until, and only to the extent that, this Warrant shall have been exercised in accordance
with its terms.
Section 7. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The
number and kind of securities purchasable upon the exercise of the Warrant and the Exercise Price shall be subject to adjustment from
time to time upon the occurrence of certain events, as follows:
(a) Share
Splits and Dividends. If outstanding shares of the Warrant Shares shall be subdivided into a greater number of
shares, the Exercise Price in effect immediately prior to such subdivision shall simultaneously with the effectiveness of such subdivision
be proportionately reduced. If outstanding Warrant Shares shall be combined into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall, simultaneously with the effectiveness of such combination, be proportionately increased.
When any adjustment is required to be made in the Exercise Price, the number of Warrant Shares purchasable upon the exercise of this
Warrant shall be changed to the number determined by dividing (i) an amount equal to the number of shares issuable upon the exercise
of this Warrant immediately prior to such adjustment, multiplied by the Exercise Price in effect immediately prior to such adjustment,
by (ii) the Exercise Price in effect immediately after such adjustment.
(b) Reclassification,
Etc. In case there occurs any reclassification or change of the outstanding securities of the Company or of any
reorganization of the Company (or any other corporation the shares or securities of which are at the time receivable upon the exercise
of this Warrant) or any similar corporate reorganization on or after the date hereof, then and in each such case Holder, upon the
exercise hereof at any time after the consummation of such reclassification, change, or reorganization shall be entitled to receive,
in lieu of the shares or other securities and property receivable upon the exercise hereof prior to such consummation, the shares or
other securities or property to which such Holder would have been entitled upon such consummation if such Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustment pursuant to the provisions of this Section 7.
(c) Adjustment
Certificate. When any adjustment is required to be made in the Warrant Shares or the Exercise Price pursuant to
this Section 7, the Company shall promptly mail to Holder a certificate setting forth (i) a brief statement of the facts requiring
such adjustment, (ii) the Exercise Price after such adjustment and (iii) the kind and amount of share or other securities or
property into which this Warrant shall be exercisable after such adjustment.
Section
9. TERMINATION. This warrant (and the right to purchase securities upon exercise hereof) shall terminate upon the earliest
to occur of the following (the “Expiration Date”): (a) the expiration of the period of five (5) years as of the
date of the Warrant set forth above; or (b) a Sale of the Company (as defined below).
Section 10. SALE OF THE COMPANY. The
Company will notify the Holder of any proposed Sale of the Company at least fifteen (15) days prior to the expected closing of the
Sale of the Company. As used herein, “Sale of the Company” means (i) any sale, transfer or other disposition
to another company of all or substantially all of the Company’s assets, (ii) the sale of shares of the Company resulting in
more than 50% of the voting power of the Company or of the surviving entity being vested in persons other than the persons who own 50%
or more of the voting power of the Company immediately prior to the effectiveness of such transaction, or (iii) a merger or consolidation
of the Company resulting in more than 50% of the voting power of the Company or of the surviving entity being vested in persons other
than the persons who own 50% or more of the voting power of the Company immediately prior to the effectiveness of such transaction.
Section 11. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933. This
Warrant may not be exercised and neither this Warrant nor any securities issuable thereunder (the “Securities”), nor
any interest in either, may be offered, sold, assigned, pledged, hypothecated, encumbered or in any other manner transferred or disposed
of, in whole or in part, except in compliance with applicable United States federal and state securities or “blue sky” laws
and the terms and conditions hereof. Each Warrant shall bear a legend in substantially the same form as the legend set forth on the first
page of this Warrant. Each certificate for the Securities issued upon exercise of this Warrant, subject to the applicable provisions
of the Securities Act of 1933, as amended (the “Securities Act”) and the U.S. state “blue sky” laws, shall
bear a legend substantially in the following form:
“THE
SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(“THE SECURITIES ACT”)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES
ACT IN RELIANCE UPON REGULATION S PROMULGATED UNDER THE SECURITIES ACT.”
“TRANSFER
OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES
ACT, OR PURSUANT TO AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT.”
The
Company is required to refuse to register any transfer of this Warrant or the Securities underlying this Warrant not made in accordance
with the provisions of Regulation S, pursuant to the Securities Act or pursuant to an available exemption from registration. Any certificate
for any Securities issued at any time in exchange or substitution for any certificate for any Securities bearing such legend shall also
bear such legend unless, in the opinion of counsel for the Company, the Securities represented thereby need no longer be subject to the
restriction contained herein. The provisions of this Section 11 shall be binding upon all subsequent holders of certificates for
Securities bearing the above legend and all subsequent holders of this Warrant, if any.
Section 12. REPRESENTATIONS AND COVENANTS OF HOLDER. This
Warrant has been entered into by the Company in reliance upon the following representations and covenants of Holder, which by its execution
hereof Holder hereby confirms:
(a) Investment
Purpose. The right to acquire the Warrant Shares (the “Securities”), and any Securities issued upon exercise
of Holder’s rights contained herein, will be acquired for investment and not with a view to the sale or distribution of any part
thereof, and Holder has no present intention of selling or engaging in any public distribution of the same except pursuant to a registration
or exemption.
(b) Foreign
Investor. Holder hereby represents that he or she or it has satisfied itself as to the full observance by Holder of the laws
of its jurisdiction applicable to Holder in connection with the receipt of this Warrant or purchase of the Securities, including (i)
the legal requirements within its jurisdiction for the purchase of the Securities, (ii) any foreign exchange restrictions applicable
to the purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences,
if any, that may be relevant to Holder’s holding of this Warrant and purchase, holding, redemption, sale, or transfer of the Securities.
Holder’s payment for, and continued beneficial ownership of, the Securities will not violate any securities or other laws of Holder’s
jurisdiction applicable to Holder.
(c) Disposition
of Holder’s Rights by Holders deemed Affiliates of the Company. In no event will any Holder who is an Affiliate of the
Company make a disposition of any of its rights to acquire the Securities, or of any Securities issued upon exercise of such rights,
unless and until (i) it shall have notified the Company of the proposed disposition and (ii) if requested by the Company, it
shall have furnished the Company with an opinion of counsel (which counsel may either be inside or outside counsel to Holder) reasonably
satisfactory to the Company and its counsel to the effect that (A) appropriate action necessary for compliance with the Securities
Act has been taken or (B) an exemption from the registration requirements of the Securities Act is available. Notwithstanding the
foregoing, the restrictions imposed upon the transferability of any of its rights to acquire the Securities, or of any Securities issued
on the exercise of such rights do not apply to transfers from the beneficial owner of any of the aforementioned securities to its nominee
or from such nominee to its beneficial owner, and shall terminate as to such security if and when (1) such security shall have been
effectively registered under the Securities Act and sold by the holder thereof in accordance with such registration, (2) such security
shall have been sold without registration in compliance with Regulation S under the Securities Act or (3) a letter shall have been
issued to Holder at its request by the staff of the Securities and Exchange Commission or a ruling shall have been issued to Holder at
its request by such Commission stating that no action shall be recommended by such staff or taken by such Commission, as the case may
be, if such security is transferred without registration under the Securities Act in accordance with the conditions set forth in such
letter or ruling, and such letter or ruling specifies that no subsequent restrictions on transfer are required. Whenever the restrictions
imposed hereunder shall terminate, as hereinabove provided, Holder or a holder of the Securities then outstanding as to which such restrictions
have terminated shall be entitled to receive from the Company, without expense to such holder, one or more new certificates for the Warrant
or for such Securities not bearing any restrictive legend.
(d) Financial
Risk. Holder has such knowledge and experience in financial and business matters as to be capable of evaluating the merits
and risks of its investment and has the ability to bear the economic risks of its investment.
(e) No
Registration Rights. Holder or any other Person has no right to cause the Company to effect the registration of this Warrant or the
Warrant Shares.
(f) Non-US
Person. Holder is not a U.S. person as defined in the Regulation S promulgated under the Securities Act and any other
applicable rules and regulations promulgated thereunder, as presently in effect.
Section 13. SATURDAYS,
SUNDAYS AND HOLIDAYS. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall be a Saturday or a Sunday or shall be a legal holiday in the State of New York, then such action may
be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or legal holiday in the State of New York.
Section 14. ISSUE TAX. The
issuance of certificates for Warrant Shares upon the exercise of the Warrant shall be made without charge to the holder of the Warrant
for any issue tax (other than any applicable income taxes) in respect thereof; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificates
in a name other than that of the then Holder of the Warrant being exercised.
Section 15. MODIFICATION AND WAIVER. Neither
this Warrant nor any term hereof may be changed, waived, discharged or terminated other than by an instrument in writing signed by the
Company and by Holder.
Section 16. NOTICES. Unless
otherwise specified herein, any notice, request or other document required or permitted to be given or delivered to Holder or the Company
shall be given in writing and shall be deemed effectively given (i) upon personal delivery to the party to be notified, (ii) three
(3) days after deposit in the United States mail if sent by registered or certified mail, postage prepaid, or (iii) one (1) day
after deposit with an overnight courier, specifying next day delivery, with written verification of receipt. All communications shall
be sent to Holder at its address as shown on the books of the Company, or to the Company at the address indicated therefor in the first
paragraph of this Warrant.
Section 17. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The
description headings of the several sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a
part of this Warrant. This Warrant shall be construed and enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of New York, without regard to its conflicts of laws principles. With respect to any claim arising out
of this Warrant, each party irrevocably submits to the exclusive jurisdiction of the courts of the State of New York and/or the United
States Federal Courts located in the Borough of Manhattan in The City of New York, and each party irrevocably waives any objection
which it may have at any time to the laying of venue of any suit, action or proceeding arising out of or relating hereto brought in any
such courts, irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in any
inconvenient forum and further irrevocably waives the right to object, with respect to such claim, suit, action or proceeding brought
in any such court, that such court does not have jurisdiction over such party, provided that service of process has been made by any
lawful means.
Section 18. ATTORNEYS’
FEES. In any litigation, arbitration or court proceeding between the Company and Holder relating hereto, the prevailing
party shall be entitled to attorneys’ fees and expenses and all costs of proceedings incurred in enforcing this Warrant.
Section 19. SURVIVAL. The
representations, warranties, covenants and conditions of the respective parties contained herein or made pursuant to this Warrant shall
survive the execution and delivery of this Warrant.
Section 20.
SEVERABILITY. In the event any one or more of the provisions of this Warrant shall for any reason be held invalid, illegal or unenforceable,
the remaining provisions of this Warrant shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced
by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid,
illegal or unenforceable provision.
IN WITNESS WHEREOF, the
Company has duly caused this Warrant to be signed by its duly authorized officer and to be dated as of the date first above written.
| |
Company: |
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GOLDEN HEAVEN GROUP HOLDINGS LTD. |
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By: |
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Name: |
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Title: |
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PURCHASE
FORM
Dated
_________, _____
The
undersigned hereby irrevocably elects to exercise the within Warrant to purchase __________ Class A Ordinary Shares and hereby makes
payment of $ __________ in payment of the exercise price thereof, together with all applicable transfer taxes, if
any.
In
exercising its rights to purchase the _____________ of Class A Ordinary Shares of GOLDEN HEAVEN GROUP HOLDINGS LTD., the undersigned
hereby confirms and acknowledges the investment representations and warranties made in Section 12 of the Warrant.
Please
issue a certificate or certificates representing said shares of ___________ Stock in the name of the undersigned or in such other name
as is specified below.
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Holder: |
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_____________________, |
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By: |
|
ASSIGNMENT
FORM
Dated
_________ , ______
For value received, __________________, a __________________, hereby sells, assigns and transfers unto
| _________________________________________________________________________________ (the
“Assignee”), |
(please
type or print in block letters)
its
right to purchase up to _______________ Class A Ordinary Shares Stock represented by this Warrant and does hereby irrevocably constitute
and appoint _________________________ attorney, to transfer the same on the books of the Company, with full power of substitution in
the premises.
TRANSFER
NOTICE
(To
transfer or assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
For value received,
the foregoing Warrant and all rights evidenced thereby are hereby transferred and assigned to:
| Holder’s Signature |
|
| |
| Holder’s Address |
|
| Note: |
The
signature to this Transfer Notice must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement
or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper
evidence of authority to assign the foregoing Warrant |
Exhibit 99.4
FORM OF AMENDMENT TO WARRANT
This Amendment to Warrant
(this “Amendment”) is made as of November 18, 2024 by and between Golden Heaven Group Holdings Ltd., a company organized
under the laws of Cayman Islands (the “Company”) and [Name of Holder] (the “Holder”).
WHEREAS, the Company issued
a warrant to the Holder dated as of [Date] (the “Warrant”) pursuant to which the Holder is entitled to purchase from
the Company [Number of Shares] Class A Ordinary Shares of the Company;
WHEREAS, on September 19,
2024, the Company completed a share consolidation at the ratio of 1:50 (the “Share Consolidation”) and the number of
Class A Ordinary Shares under the Warrant shall be automatically adjusted to be [Number of Shares] after the Share Consolidation;
WHEREAS, the Company and the
Holder desire to decrease the exercise price under the Warrant to reflect prevailing market price of Class A Ordinary Shares of the Company
and to facilitate additional fundraising by the Company; and
WHEREAS, the Company and the
Holder wish to amend the Warrant as set forth herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. All
terms used and not defined herein shall have the same meanings as set forth in the Warrant.
2. The
second paragraph of the Warrant shall be amended and restated to read in its entirety as follows:
“Holder may
purchase the afore-mentioned number of shares of Warrant Stock of the Company at a purchase price per share (as appropriately adjusted
pursuant to Section 7 hereof) of $1.386 (the “Exercise Price”). The term “Class A Ordinary Stock”
shall mean the Class A Ordinary Shares of the Company, together with any other equity securities that may be issued by the Company in
addition thereto or in substitution therefor as provided herein.”
3. Notwithstanding
anything to the contrary in the Warrant, the Holder shall exercise the Warrant in whole simultaneously with execution and delivery of
this Amendment by the parties hereto, by executing and delivering the purchase form, in the form of Exhibit A attached hereto.
4. The
terms and provisions of the Warrant shall remain in full force and effect except as specifically amended or modified by this Amendment.
5. The
provisions of this Amendment may be amended only with the written consent of the Company and the Holder.
[remainder of page intentionally left blank
– signature page follows]
IN WITNESS WHEREOF, the Parties
hereto have caused this Amendment to be signed on the date and year first above written.
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Company: |
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Golden Heaven Group Holdings Ltd. |
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By: |
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Name: |
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Title: |
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Holder: |
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[Name of Holder] |
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By: |
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Name: |
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Title: |
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Signature Page to Amendment
to Warrant
Exhibit A
Purchase Form
Dated ,
The undersigned hereby irrevocably
elects to exercise the within Warrant to purchase Class A Ordinary Shares of par
value of US$0.005 each and hereby makes payment of $ in payment of the exercise
price thereof, together with all applicable transfer taxes, if any.
In exercising its rights to
purchase _____________ Class A Ordinary Shares of par value of US$0.005 each of GOLDEN HEAVEN GROUP HOLDINGS LTD., the undersigned
hereby confirms and acknowledges the investment representations and warranties made in Section 12 of the Warrant.
Please issue a certificate
or certificates representing said ___________ Class A Ordinary Shares in the name of the undersigned or in such other name as is specified
below.
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(Name) |
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(Address) |
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Holder: |
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By: |
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