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 October 2024
ZHONGCHAO INC.
(Exact name of registrant as specified in its charter)
Nanxi Creative Center, Suite 218
841 Yan’an Middle Road
Jing’An District, Shanghai, China 200040
Tel: 021-32205987
(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 ☐
Entry into Material Definitive Agreement.
On October 1, 2024, Zhongchao
Inc. (the “Company”) entered into securities purchase agreements with investors (collectively, the “Purchase Agreements”)
providing for the issuance and sale by the Company of 3,094,000 Class A ordinary shares, par value $0.001
per share, in the aggregate (the “Shares”), in a registered direct offering (the “Offering”). On October 2, 2024,
the Company consummated the Offering and issued the Shares to the investors at a price of $0.30 per Share, generating the gross proceeds
to the Company in the total amount of $928,200. The Company did not retained an underwriter or placement
agent with respect to the Offering and therefore was not paying any underwriting discounts or commissions.
The Company was offering
the Shares pursuant to a prospectus supplement dated October 1, 2024, and a prospectus dated December 17, 2021, which is part of a registration
statement on Form F-3 (File No. 333-256190) that was declared effective by the Securities and Exchange Commission on December
17, 2021. A copy of the opinion of Ogier (Cayman) LLP relating to the legality of the issuance and sale of the Shares in the Offering,
is attached as Exhibit 5.1 hereto.
The foregoing description
of the Purchase Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase
Agreements, a form of which is attached as Exhibit 10.1 hereto and is incorporated herein by reference.
This Report on Form 6-K is incorporated by reference
into the Company’s Registration Statements on Form F-3 (File No. 333-279667), filed with the Securities and Exchange Commission,
to be a part thereof from the date on which this Report is submitted, to the extent not superseded by documents or reports subsequently
filed or furnished.
Other Events
This Report on Form 6-K shall
not constitute an offer to sell or the solicitation of an offer to buy any shares under the Offering, nor shall there be any sale of such
shares in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state or jurisdiction.
Forward Looking Statements
Statements contained
in this Report on Form 6-K regarding matters that are not historical facts are “forward-looking statements” within
the meaning of the Private Securities Litigation Reform Act of 1995. Such statements may involve risks and uncertainties, such as statements
related to the anticipated closing of the Offering and the amount of proceeds expected from the Offering.
Exhibits
SIGNATURES
Pursuant to the requirements
of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
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Zhongchao Inc. |
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| Date: October 2, 2024 |
By: |
/s/ Weiguang Yang |
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Weiguang Yang
Chief Executive Officer |
2
Exhibit 5.1
| Zhongchao Inc. |
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D +1 345 815 1877 |
| c/o Harneys Fiduciary (Cayman) Limited, |
|
E bradley.kruger@ogier.com |
| 4th Floor, Harbour Place, 103 South |
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| Church Street, P.O. Box 10240, Grand |
|
Reference: 427703.00001/BKR |
| Cayman KY1-1002, |
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| Cayman Islands |
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2 October 2024 |
Zhongchao Inc. (the Company)
We have been requested to provide you with an
opinion on matters of Cayman Islands law in connection with the Company’s registration statement on Form F-3, including all amendments
or supplements thereto, including the prospectus supplement dated on or about the date hereof (the Supplement), filed with the
United States Securities and Exchange Commission (the Commission) under the United States Securities Act of 1933 (the Act),
as amended, (including its exhibits, amendments and supplements, the Registration Statement) relating to the offering and sale
of an aggregate of 3,094,000 Class A Ordinary Shares of par value US$0.001 each in the capital of the Company (the Ordinary Shares)
pursuant to certain securities purchase agreements.
This opinion is given in accordance with the terms
of the Legal Matters section of the Supplement.
Unless a contrary intention appears, all capitalised
terms used in this opinion have the respective meanings set forth in Schedule 1. A reference to a Schedule is a reference to a schedule
to this opinion and the headings herein are for convenience only and do not affect the construction of this opinion.
For the purposes of giving this opinion,
we have examined the corporate and other documents and conducted the searches listed in Schedule 1. We have not made any searches or enquiries
concerning, and have not examined any documents entered into by or affecting the Company or any other person, save for the searches, enquiries
and examinations expressly referred to in Schedule 1.
|
Ogier (Cayman) LLP
89 Nexus Way
Camana Bay
Grand Cayman, KY1-9009
Cayman Islands
T +1 345 949 9876
F +1 345 949 9877
ogier.com |
|
A list of Partners may be inspected on our website |
Zhongchao Inc.
2 October 2024
In giving this opinion we have relied
upon the assumptions set forth in Schedule 2 without having carried out any independent investigation or verification in respect of those
assumptions.
On the basis of the examinations and
assumptions referred to above and subject to the qualifications set forth in Schedule 3 and the limitations set forth below, we are of
the opinion that:
Corporate status
| (a) | The Company has been duly incorporated as an exempted company and is validly existing and in good standing
with the Registrar of Companies of the Cayman Islands (the Registrar). |
Corporate power
| (b) | The Company has all requisite power under the Memorandum and Articles to execute and deliver the Documents
and to perform its obligations, and exercise its rights, under such documents. |
Corporate authorisation
| (c) | The Company has taken all requisite corporate action to authorise the execution and delivery of the Documents
and the performance of its obligations, and the exercise of its rights, under such documents. |
Shares
| (d) | The Ordinary Shares to be offered and issued by the Company as contemplated by the Documents, when issued
by the Company upon: |
| (i) | payment in full of the consideration as set out in the Registration Statement and each Document and in
accordance with the terms set out in the Registration Statement and each Document and in accordance with the Memorandum and Articles of
Association; and |
| (ii) | the entry of those Ordinary Shares as fully paid on the register of members of the Company, |
shall be validly
issued, fully paid and non-assessable.
Zhongchao Inc.
2 October 2024
We offer no
opinion:
| (a) | as to any laws other than the laws of the Cayman Islands, and we have not, for the purposes of this opinion,
made any investigation of the laws of any other jurisdiction, and we express no opinion as to the meaning, validity, or effect of references
in the Documents to statutes, rules, regulations, codes or judicial authority of any jurisdiction other than the Cayman Islands; |
| (b) | except to the extent that this opinion expressly provides otherwise, as to the commercial terms of, or
the validity, enforceability or effect of the documents reviewed (or as to how the commercial terms of such documents reflect the intentions
of the parties), the accuracy of representations, the fulfilment of warranties or conditions, the occurrence of events of default or terminating
events or the existence of any conflicts or inconsistencies among the documents and any other agreements into which the Company may have
entered or any other documents; or |
| (c) | as to whether the acceptance, execution or performance of the Company’s obligations under the documents
reviewed by us will result in the breach of or infringe any other agreement, deed or document entered into by or binding on the Company. |
| 5 | Governing law of this opinion |
| (a) | governed by, and shall be construed in accordance with, the laws of the Cayman Islands; |
| (b) | limited to the matters expressly stated in it; and |
| (c) | confined to, and given on the basis of, the laws and practice in the Cayman Islands at the date of this
opinion. |
| 5.2 | Unless otherwise indicated, a reference to any specific Cayman Islands legislation is a reference to that
legislation as amended to, and as in force at, the date of this opinion. |
We hereby consent
to the filing of this opinion as an exhibit to the Registration Statement (and/or any related Form 6-K) and also consent to the reference
to this firm in the Registration Statement under the heading “Legal Matters”. In the giving of our consent, we do not thereby
admit that we are in the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the
Commission thereunder.
| Yours faithfully |
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| /s/ Ogier (Cayman) LLP |
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| Ogier (Cayman) LLP |
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Zhongchao Inc.
2 October 2024
Schedule
1
Documents examined
Corporate and other documents
| 1 | The Certificate of Incorporation of the Company dated 16 April 2024 issued by the Registrar. |
| 2 | The amended and restated memorandum and articles of association of the Company adopted by special resolution
passed on 20 February 2024 and made effective on 29 February 2024 (the Memorandum and Articles). |
| 3 | A Certificate of Good Standing dated 30 September 2024 (the Good Standing Certificate) issued by
the Registrar in respect of the Company. |
| 4 | A certificate dated on the date hereof as to certain matters of fact signed by a director of the Company
in the form annexed hereto (the Director’s Certificate), having attached to it a copy of the written resolutions of the directors
of the Company passed on 26 September 2024 (the Resolutions). |
| 5 | The Register of Writs maintained by the office of the Clerk of Courts in the Cayman Islands as inspected
by us on 2 October 2024 and containing filings made on or prior to 20 September 2024 (the Register of Writs). |
| 6 | A draft of the Supplement relating to the issuance of Ordinary Shares pursuant to the Documents. |
| 7 | Draft form securities purchase agreements between the Company and certain purchasers thereunder (the Purchasers)
pursuant to which the Company will issue and the Purchasers shall subscribe for an aggregate of 3,094,000 Class A Ordinary Shares of par
value US$0.001 each in the capital of the Company at a purchase price of US$0.30 per share (each a Document and together, the Documents). |
Zhongchao Inc.
2 October 2024
Schedule
2
Assumptions
Assumptions
of general application
| 1 | All original documents examined by us are authentic and complete. |
| 2 | All copy documents examined by us (whether in facsimile, electronic or other form) conform to the originals
and those originals are authentic and complete. |
| 3 | All signatures, seals, dates, stamps and markings (whether on original or copy documents) are genuine. |
| 4 | Each of the Good Standing Certificate and the Director’s Certificate is accurate and complete as
at the date of this opinion. |
| 5 | Where any Document has been provided to us in draft or undated form, that Document has been executed by
all parties in materially the form provided to us and, where we have been provided with successive drafts of a Document marked to show
changes from a previous draft, all such changes have been accurately marked. |
Status, authorisation and
execution
| 6 | Each of the parties to the Documents other than the Company is duly incorporated, formed or organised
(as applicable), validly existing and in good standing under all relevant laws. |
| 7 | Any individuals who are parties to a Document, or who sign or have signed documents or give information
on which we rely, have the legal capacity under all relevant laws (including the laws of the Cayman Islands) to enter into and perform
their obligations under such Document, sign such documents and give such information. |
| 8 | Each Document has been duly authorised, executed and unconditionally delivered by or on behalf of all
parties to it in accordance with all applicable laws (other than, in the case of the Company, the laws of the Cayman Islands). |
| 9 | In authorising the execution and delivery of the Documents by the Company, the exercise of its rights
and performance of its obligations under the Documents, each of the directors of the Company has acted in good faith with a view to the
best interests of the Company and has exercised the standard of care, diligence and skill that is required of him or her. |
| 10 | Each Document has been duly executed and unconditionally delivered by the Company in the manner authorised
in the Resolutions. |
Zhongchao Inc.
2 October 2024
Enforceability
| 11 | None of the opinions expressed herein will be adversely affected by the laws or public policies of any
jurisdiction other than the Cayman Islands. In particular, but without limitation to the previous sentence: |
| (a) | the laws or public policies of any jurisdiction other than the Cayman Islands will not adversely affect
the capacity or authority of the Company; and |
| (b) | neither the execution or delivery of the Documents nor the exercise by any party to the Documents of its
rights or the performance of its obligations under them contravene those laws or public policies. |
| 12 | There are no agreements, documents or arrangements (other than the documents expressly referred to in
this opinion as having been examined by us) that materially affect or modify the Documents or the transactions contemplated by them or
restrict the powers and authority of the Company in any way. |
| 13 | None of the transactions contemplated by the Documents relate to any partnership interests, shares, voting
rights in a Cayman Islands company, limited liability company, limited liability partnership, limited partnership, foundation company,
exempted limited partnership, or any other person that may be prescribed in regulations from time to time (a Legal Person) or to
the ultimate effective control over the management of a Legal Person that are/is subject to a restrictions notice issued pursuant to the
Beneficial Ownership Transparency Act (Revised) of the Cayman Islands. |
Share Issuance
| 14 | The Ordinary Shares shall be issued at an issue price in excess of the par value thereof. |
Zhongchao Inc.
2 October 2024
Schedule
3
Qualifications
Good Standing
| 1 | Under the Companies Act annual returns in respect of the Company must be filed with the Registrar, together
with payment of annual filing fees. A failure to file annual returns and pay annual filing fees may result in the Company being struck
off the Register of Companies, following which its assets will vest in the Financial Secretary of the Cayman Islands and will be subject
to disposition or retention for the benefit of the public of the Cayman Islands. |
| 2 | In good standing means only that as of the date of the Good Standing Certificate the Company is
up-to-date with the filing of its annual returns and payment of annual fees with the Registrar. We have made no enquiries into the Company’s
good standing with respect to any filings or payment of fees, or both, that it may be required to make under the laws of the Cayman Islands
other than the Companies Act. |
Limited liability
| 3 | We are not aware of any Cayman Islands authority as to when the courts would set aside the limited liability
of a shareholder in a Cayman Islands company. Our opinion on the subject is based on the Companies Act and English common law authorities,
the latter of which are persuasive but not binding in the courts of the Cayman Islands. Under English authorities, circumstances in which
a court would attribute personal liability to a shareholder are very limited, and include: (a) such shareholder expressly assuming direct
liability (such as a guarantee); (b) the company acting as the agent of such shareholder; (c) the company being incorporated by or at
the behest of such shareholder for the purpose of committing or furthering such shareholder’s fraud, or for a sham transaction otherwise
carried out by such shareholder. In the absence of these circumstances, we are of the opinion that a Cayman Islands’ court would
have no grounds to set aside the limited liability of a shareholder. |
Non-Assessable
| 4 | In this opinion, the phrase “non-assessable” means, with respect to the Class A Ordinary Shares
in the Company, that a shareholder shall not, solely by virtue of its status as a shareholder, be liable for additional assessments or
calls on the Class A Ordinary Shares by the Company or its creditors (except in exceptional circumstances, such as involving fraud, the
establishment of an agency relationship or an illegal or improper purpose or other circumstance in which a court may be prepared to pierce
or lift the corporate veil). |
Register of Writs
| 5 | Our examination of the Register of Writs cannot conclusively reveal whether or not there is: |
| (a) | any current or pending litigation in the Cayman Islands against the Company; or |
| (b) | any application for the winding up or dissolution of the Company or the appointment of any liquidator,
trustee in bankruptcy or restructuring officer in respect of the Company or any of its assets, |
as notice of these matters might not
be entered on the Register of Writs immediately or updated expeditiously or the court file associated with the matter or the matter itself
may not be publicly available (for example, due to sealing orders having been made). Furthermore, we have not conducted a search of the
summary court. Claims in the summary court are limited to a maximum of CI $20,000.
7
Exhibit 10.1
Execution Version
SECURITIES PURCHASE
AGREEMENT
This
securities purchase agreement (this “Agreement”) is made as of October 1, 2024, by and between [________] (the “Purchaser”),
and Zhongchao Inc., a Cayman Islands exempt company (the “Company”).
RECITALS
A. Subject
to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act of
1933, as amended (the “Securities Act”), the Company desires to issue and sell to the Purchaser, and the Purchaser
desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
B. This
Agreement is part of a series of Securities Purchase Agreements (each other Securities Purchase Agreement, an “Other Purchase
Agreement”), each executed concurrently but as independent transactions, pursuant to which the Company has agreed to sell and
issue Ordinary Shares (as defined herein) to separate purchasers (each other purchaser, an “Other Purchaser”), in each
case at the same price per share as contemplated by this Agreement.
TERMS AND CONDITIONS
In
consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Company and the Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, the following terms have the meanings set forth in this Section 1.1:
“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.
“Base
Prospectus” means the prospectus, dated December 17, 2021, contained in the Registration Statement.
“Closing”
means the closing of the purchase and sale of the Shares pursuant to Section 2.2.
“Closing
Date” means the Trading Day on which all conditions precedent to (i) the Purchaser’s obligation to pay the Subscription
Amount and (ii) the Company’s obligations to deliver the Shares, in each case, have been satisfied or waived, but in no event
later than the second Trading Day following the date hereof.
“Commission”
means the United States Securities and Exchange Commission.
“Disclosure
Package” means, collectively, the Prospectus, together with the documents incorporated by reference therein.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Prospectus”
means the Prospectus Supplement, together with the Base Prospectus.
“Ordinary
Shares” means the Class A ordinary shares of the Company, par value $0.001 per
share.
“Person”
means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a governmental entity.
“Prospectus
Supplement” means the supplement to the Base Prospectus complying with Rule 424(b) of the Securities Act that is filed
with the Commission and delivered by the Company to the Purchaser at the Closing.
“Registration
Statement” means the effective registration statement with Commission File No. 333-256190 that registers the
sale of the Shares to the Purchaser, as such Registration Statement may be amended and supplemented from time to time (including pursuant
to Rule 462(b) of the Securities Act).
“Shares”
means [__] Ordinary Shares issued or issuable to the Purchaser pursuant to the terms and conditions of this Agreement.
“Short
Sales” means, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act,
whether or not against the box, and forward sale contracts, options, puts, calls, short sales, “put equivalent positions”
(as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements, and sales and other transactions through non-U.S. broker
dealers or foreign regulated brokers.
“Subscription
Amount” means $[__], the aggregate amount to be paid by the Purchaser to the Company for the Shares purchased hereunder in United
States dollars and in immediately available funds.
“Trading
Day” means a day on which the Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Shares are listed or quoted for trading on the date
in question: the NYSE American, The Nasdaq Capital Market, The Nasdaq Global Market, The Nasdaq Global Select Market, the New York Stock
Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means Transhare Corporation, Bayside Center 1, 17755 North US Highway 19, Suite # 140, Clearwater FL 33764, and any successor
transfer agent of the Company.
ARTICLE II
PURCHASE AND SALE
2.1 Closing.
Upon the terms and subject to the conditions set forth herein, the Company has authorized the sale and issuance to the Purchaser, and
the Purchaser agrees to purchase from the Company, the Shares, for a purchase price of $0.30 per Share.
(a)
The offering and sale of the Shares (the “Offering”) is being made pursuant to (i) the Registration Statement
filed by the Company with the Commission, including the Base Prospectus; (ii) if applicable, certain “free writing prospectuses”
(as that term is defined in Rule 405 under the Securities Act) (“Free Writing Prospectus”) that have been or will
be filed, if required, with the Commission and delivered to the Purchaser on or before the date hereof, containing certain supplemental
information regarding the terms of the Offering and the Company; and (iii) the Prospectus Supplement containing certain supplemental
information regarding the Shares and the terms of the Offering and information that may be material to the Company and its securities
that was delivered to the Purchaser and will be filed with the Commission.
(b)
There is no placement agent or underwriter for this Offering. The Shares are being issued directly by the Company to the Purchaser.
2.2 Closing
and Delivery of the Shares and Funds.
(a)
The Closing shall take place at the offices of Robinson & Cole LLP, 666 Third Avenue, 20th Floor, New York, NY 10017, or
such other location as the parties shall mutually agree upon, on the Closing Date. At or prior to the Closing, (i) the Purchaser
shall deliver to the Company, (x) this Agreement duly executed by the Purchaser and, (y) via wire transfer from an account of
the Purchaser or of another person on behalf of the Purchaser, immediately available funds equal to the Subscription Amount, and (ii) the
Company shall deliver (x) this Agreement duly executed by the Company (y) the Prospectus Supplement to the Purchaser (which
may be delivered in accordance with Rule 172 under the Securities Act) and (z) instructions to the Transfer Agent instructing the
Transfer Agent to update the Company’s register of members to reflect the issuance of the Shares to the Purchaser at Closing and to deliver
the Shares registered in the name of the Purchaser at Closing.
(b)
The Company’s obligation to issue and sell the Shares to the Purchaser shall be subject to: (i) no stop order suspending the
effectiveness of the Registration Statement or any part thereof, or preventing or suspending the use of the Base Prospectus or the Prospectus
or any part thereof, shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act
shall have been initiated or threatened by the Commission; (ii) no objection shall have been raised by the Trading Market with respect
to the consummation of the transactions contemplated by this Agreement; (iii) the accuracy in all material respects (or, to the extent
representations or warranties are qualified by materiality, in all respects) on the Closing Date of the representations and warranties
of the Purchaser contained herein (unless as of a specific date therein in which case they shall be true and correct as of such date);
and (iv) the delivery by the Purchaser of the items set forth in Section 2.2(a) of this Agreement.
(c)
The Purchaser’s obligation to purchase the Shares from the Company shall be subject to: (i) no stop order suspending the effectiveness
of the Registration Statement or any part thereof, or preventing or suspending the use of the Base Prospectus or the Prospectus or any
part thereof, shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Securities Act shall
have been initiated or threatened by the Commission; (ii) no objection shall have been raised by the Trading Market with respect
to the consummation of the transactions contemplated by this Agreement; (iii) there shall have been no Material Adverse Effect (as
defined herein) since the date hereof; (iv) all obligations, covenants and agreements of the Company required to be performed at
or prior to the Closing Date shall have been performed; (v) 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, which shall be true and correct as of such specified
date); and (vi) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations,
Warranties and Covenants of the Company. The Company acknowledges, represents and warrants to, and agrees with, the Purchaser that:
(a)
The Company has the requisite right, power and authority to enter into this Agreement, to authorize, issue and sell the Shares as contemplated
by this Agreement and to perform and to discharge its obligations hereunder; and this Agreement has been duly authorized, executed and
delivered by the Company, and constitutes the valid and binding obligation of the Company enforceable in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to enforcement of creditors’ rights generally
and by general principles of equity. No approval of the Company’s shareholders or any other corporate action on the part of the
Company is necessary to authorize the execution, delivery and performance of this Agreement by the Company.
(b)
The Shares have been duly authorized and the Shares, when issued and delivered against payment therefor as provided in this Agreement,
will be validly issued, fully paid and non-assessable and free of any preemptive or similar rights. The Registration Statement
is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending
or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or,
to the knowledge of the Company, are threatened by the Commission. No objection has been raised by the Trading Market with respect to
the consummation of the transactions contemplated by this Agreement or any Other Purchase Agreement. The Company, if required by the rules
and regulations of the Commission, proposes to file the Prospectus with the Commission pursuant to Rule 424(b) in relation to the
sale of the Shares. There are a sufficient number of Ordinary Shares available for issuance under the Registration Statement to issue
the Shares and all of the other Ordinary Shares issuable pursuant to the Other Purchase Agreements pursuant to the Registration Statement.
(c)
The execution and delivery of this Agreement or any Other Purchase Agreement and the consummation of the transactions contemplated hereby
will not (i) result in a breach or violation of any of the terms and provisions of, or constitute a default under, any law, rule
or regulation to which the Company or any of its subsidiaries is subject, or by which any property or asset of the Company or any of its
subsidiaries is bound or affected, (ii) conflict with, result in any violation or breach of, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give to others any right of termination, amendment, acceleration
or cancellation (with or without notice, lapse of time or both) of, any agreement, lease, credit facility, debt, note, bond, mortgage,
indenture or other instrument or obligation or other understanding to which the Company or any of its subsidiaries is a party or by which
any property or asset of the Company or any of its subsidiaries is bound or affected, or (iii) result in a breach or violation of
any of the terms and provisions of, or constitute a default under, the Company’s Amended and Restated Memorandum and Articles of
Association, except in the case of clauses (i) and (ii) such breaches, violations, defaults, or conflicts which are not, and would
not be, individually or in the aggregate, reasonably likely to result in a material adverse effect upon the business, properties, operations,
condition (financial or other) or results of operations of the Company and its subsidiaries, taken as a whole, or in its ability to perform
its obligations under this Agreement or any Other Purchase Agreement (a “Material Adverse Effect”; provided, however,
that changes in the trading price of the Ordinary Shares shall not, in and of themselves, constitute a Material Adverse Effect).
(d)
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 (2) 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, including the
exhibits thereto and documents incorporated by reference therein, 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 the light of the
circumstances under which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities
Act. 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, as
of their respective dates, were 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 presented in all
material respects the financial position of the Company and its consolidated subsidiaries 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.
(e)
Since the date of the latest financial statements included within 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) liabilities, including trade payables and accrued expenses, incurred in the ordinary course
of business consistent with past practice and (B) liabilities not required to be reflected on a consolidated balance sheet of the
Company pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting,
other than the adoption of new accounting standards as set forth in the SEC Reports, and (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 shares of its capital stock. The Company does not have pending before the Commission any request for confidential treatment
of information. Except for the issuance of the Shares contemplated by this Agreement or any Other Purchase Agreements or as disclosed
in the SEC Reports, no event, liability, fact, circumstance, litigation, claim, occurrence or development has occurred or exists or is
reasonably expected to occur or exist with respect to the Company or its subsidiaries or their respective businesses, prospects, properties,
operations, assets or financial condition 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 disclosed at least one (1) Trading Day prior to the date that this
representation is made.
(f)
The Company shall, (i) by 8:30 a.m. Eastern time on the Trading Day immediately following the date of this Agreement, issue a press
statement disclosing the material terms of the transactions contemplated hereby, and (ii) within the time required by the Exchange
Act, issue a Current Report on Form 8-K including the form of purchase agreement and an opinion of legal counsel as to the validity
of the Shares as exhibits thereto.
(g)
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2
of the Securities Act) that would be integrated with the offer or sale of the Shares for purposes of the rules and regulations of the
Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval
is obtained before the closing of such subsequent transaction.
(h)
No brokerage or finder’s fees or commissions are or will be payable by the Company or any of its subsidiaries to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or other person with respect to the transactions contemplated
by the Agreement or any of the Other Purchase Agreements. The Purchaser 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 this Agreement or any of the Other Purchase Agreements.
(i)
The proceeds from the sale of the Shares shall be used by the Company as set forth in the Prospectus Supplement.
(j)
The Company is not, and as a result of the consummation of the transactions contemplated by (i) this Agreement and the application
of the proceeds from the sale of the Shares and (ii) the Other Purchase Agreement and the application of the proceeds from the sale
of the Ordinary Shares thereunder, as set forth in the Base Prospectus and the Prospectus Supplement shall not be, an “investment
company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company
Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment company”
subject to registration under the Investment Company Act of 1940, as amended.
(k)
The Ordinary Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed
to, or which to its knowledge is likely to have the effect of, terminating the registration of the Ordinary Shares under the Exchange
Act, nor has the Company received any notification that the Commission is contemplating terminating such registration. Except as disclosed
in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which
Ordinary Shares are or have been listed or quoted to the effect that the Company is not in compliance in any material respect with the
listing or maintenance requirements of such Trading Market. As of the date hereof, the Company is in compliance with all such listing
and maintenance requirements.
(l)
Neither the Company nor any of its officers, directors or Affiliates has, and, to the knowledge of the Company, no Person acting on their
behalf has, (i) taken, directly or indirectly, any action designed or intended to cause or to result in the stabilization or manipulation
of the price of any security of the Company, or which caused or resulted in, or which would in the future reasonably be expected to cause
or result in, the stabilization or manipulation of the price of any security of the Company, in each case to facilitate the sale or resale
of any of the Shares (or any Ordinary Shares issued pursuant to any Other Purchase Agreement), or (ii) sold, bid for, purchased,
or paid any compensation for soliciting purchases of, any of the Shares (or any Ordinary Shares issued pursuant to any Other Purchase
Agreement).
3.2 Representations,
Warranties and Covenants of the Purchaser. The Purchaser acknowledges, represents and warrants to, and agrees with, the Company that:
(a)
It has had the opportunity to review this Agreement and the Company’s filings with the Commission and has been afforded 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 Shares.
(b)
No agent of the Company has been authorized to make and no such agent has made any representation, disclosure or use of any information
in connection with the issue, placement, purchase and sale of the Shares, except as set forth in or incorporated by reference in the Base
Prospectus or the Prospectus Supplement or as otherwise contemplated by this Agreement.
(c)
(i) The Purchaser has the requisite right, power, authority and capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this
Agreement constitutes a valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to enforcement of creditors’ rights
generally and by general principles of equity.
(d)
Nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Purchaser in connection with
the purchase and sale of the Shares constitutes legal, tax or investment advice. The Purchaser has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
(e)
Since the time that the Purchaser first began discussions with the Company about the transactions contemplated by this Agreement, the
Purchaser has not directly or indirectly, nor, to its knowledge, has any person acting on behalf of or pursuant to any understanding with
the Purchaser, (i) disclosed any information regarding the Offering to any third parties (other than the Purchaser’s legal
and accounting advisors), or (ii) engaged in any transactions in the securities of the Company (including, without limitations, any
Short Sales involving the Company’s securities). The Purchaser covenants that, prior to the time that the transactions contemplated
by this Agreement are publicly disclosed, neither it nor any person acting on its behalf or pursuant to any understanding with it will
(A) disclose any information regarding the Offering to any third parties (other than the Purchaser’s legal and accounting advisors),
or (B) engage in any transactions in the securities of the Company (including Short Sales).
(f)
The Purchaser’s signature page sets forth all securities of the Company held or beneficially owned by such Purchaser as of the date
hereof. The Purchaser does not hold or beneficially own any other securities of the Company, except as indicated on the signature page
hereto.
ARTICLE IV
MISCELLANEOUS
4.1 Entire
Agreement; Modifications. Except as otherwise provided herein, this Agreement constitutes the entire understanding and agreement between
the parties with respect to its subject matter and there are no agreements or understandings with respect to the subject matter hereof
which are not contained in this Agreement. This Agreement may be modified only in writing signed by the Company and the Purchaser.
4.2 Survival.
All representations, warranties, and agreements of the Company and the Purchaser herein shall survive delivery of, and payment for, the
Shares purchased hereunder.
4.3 Counterparts.
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument
and shall become effective when counterparts have been signed by each party and delivered to the other party hereto, it being understood
that all parties need not sign the same counterpart. Execution may be made by delivery of a facsimile or PDF.
4.4 Severability.
The provisions of this Agreement are severable and, in the event that any court or officials of any regulatory agency of competent jurisdiction
shall determine that any one or more of the provisions or part of the provisions contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other
provision or part of a provision of this Agreement and this Agreement shall be reformed and construed as if such invalid or illegal or
unenforceable provision, or part of such provision, had never been contained herein, so that such provisions would be valid, legal and
enforceable to the maximum extent possible, so long as such construction does not materially adversely affect the economic rights of either
party hereto.
4.5 Notices.
All notices or other communications required or permitted to be provided hereunder shall be in writing and shall be deemed effectively
given (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed e-mail if sent during normal
business hours of the recipient, if not, then on the next business day, (iii) five days after having been sent by registered or certified
mail, return receipt requested, postage prepaid, or (iv) one day after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All communications shall be sent to the Company or the Purchaser, as applicable,
at the address for such recipient listed on the signature pages hereto or at such other address as such recipient has designated by two
days advance written notice to the other party hereto.
4.6 Governing
Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard
to the choice of law principles thereof.
4.7 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.
4.8 Headings.
The headings of the various sections of this Agreement have been inserted for convenience of reference only and will not be deemed to
be part of this Agreement.
4.9 Fees
and Expenses. Each party shall pay the fees and expenses of its own advisers, counsel, accountants and other experts or agents, if
any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this
Agreement and the preparation of the Prospectus Supplement. The Company shall pay all transfer agent fees incurred in connection with
the delivery of any Shares to the Purchaser, all financial printer fees incurred in the preparation and filing of the Prospectus Supplement
and all registration fees owed to the SEC for the Shares.
4.10 Enforcement.
The Company and the Purchaser acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that either
party shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement by the other party
and to enforce specifically the terms and provisions hereof (without the necessity of showing economic loss and without any bond or other
security being required), this being in addition to any other remedy to which either party may be entitled by law or equity.
4.11 Termination.
This Agreement may be terminated by the Company or the Purchaser, by written notice to the other party, if the Closing has not been consummated
on or before the third (3rd) Trading Day after the parties’ execution of this Agreement; provided, however, that no such
termination will affect the right of any party to sue for any breach by any other party.
4.12 Independent
Nature of Purchaser’s Obligations and Rights. The Purchaser shall not be responsible in any way for the performance or non-performance of
the obligations of any Other Purchaser under any Other Purchase Agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement effective as of the date first written above.
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ZHONGCHAO INC. |
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By: |
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Name: |
Weiguang Yang |
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Title: |
Director and CEO |
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Address for notice: |
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Zhongchao Inc. |
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Nanxi Creative Center, Suite 216 |
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841 Yan’an Middle Road |
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Jing’An District, Shanghai, China 200040 |
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Attention: Weiguang Yang |
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Email: yangweiguang@mdmooc.org |
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|
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With a copy (which shall not constitute notice) to: |
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Robinson & Cole LLP |
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666 Third Avenue, 20th Floor |
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New York, NY 10017 |
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Attention: Arila Zhou, Esq. |
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Email: azhou@rc.com |
[Signature Page to
Securities Purchase Agreement – Zhongchao Inc.]
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[PURCHASER] |
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|
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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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|
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Email: |
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[Signature Page to
Securities Purchase Agreement – Zhongchao Inc.]
10
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