UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FUTURE FINTECH GROUP INC.
(Exact name of registrant as specified in its charter)
| Florida | 98-0222013 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
23F, National Development Bank, Tower, No. 2, Gaoxin 1st Road, Xi’an, PRC |
710075 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Future FinTech Group Inc.
2017 Omnibus Equity Plan
(Full title of the plan)
Yongke Xue
Chief Executive Officer
23F, National Development Bank
Tower, No. 2, Gaoxin 1st Road
Xi’an, PRC 710075
(Name and address of agent for service)
(86-29) 8187-8277
(Telephone number, including area code, of agent for service)
Copies to:
Jeffrey Li
Chelsea Anderson
Garvey Schubert Barer, P.C.
Flour Mill Building
1000 Potomac Street NW, Suite 200
Washington, D.C. 20007-3501
(202) 965-7880
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
| Large accelerated filer ☐ | Accelerated filer ☐ |
| Non-accelerated filer ☐ | Smaller reporting company ☒ |
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered | Amount to be registered (1) | Proposed maximum offering price per share (2) | Proposed maximum aggregate offering price (2) | Amount of registration fee | ||||||||||||
| Common Stock, par value $0.001 per share | 1,300,000 | U.S. $ | 0.84 | U.S. $ | 1,092,000 | U.S. $ | 132.35 | |||||||||
| (1) | Future FinTech Group Inc., a Florida corporation (the “Company” or “Future FinTech”), is registering 1,300,000 shares of Common Stock pursuant to the Future FinTech Group Inc. 2017 Omnibus Equity Plan (the “Plan”). Pursuant to paragraph (a) of Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), there are also registered hereunder such indeterminate number of additional shares of Common Stock as may become issuable under the Plan as a result of stock splits, stock dividends or similar transactions that result in an increase in the number of the registrant’s outstanding shares of Common Stock. |
| (2) | The offering price for these shares is estimated pursuant to Rule 457(c) and (h) of the Securities Act of 1933, as amended (the “Securities Act”), solely for the purpose of calculating the registration fee and is based upon the average of the high and low prices of our Common Stock as quoted on the Nasdaq Global Market on December 14, 2018, a date within five business days of the filing date. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in this Part I of Form S-8 have been, or will be, sent or given to participating employees as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the Note to the instructions to Part I of Form S-8, such documents are not being filed with the Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. Such documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Commission allows us to “incorporate by reference” the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered part of this registration statement, and later information that we file with the Commission will automatically update and supersede this information. We incorporate by reference documents listed below and any future filings made with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, until we file a post-effective amendment which indicates that all securities offered in this registration statement have been sold or which de-registers all securities then remaining unsold.
The following documents previously filed by the Company with the Commission are incorporated in this registration statement by reference and shall be deemed a part hereof:
| 1. | The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017; |
| 2. | The Company’s Quarterly Report on Form 10-Q for the quarters ended March 31, 2018; June 30, 2018; and September 30, 2018; |
| 3. | The Company’s Current Reports on Forms 8-K and 8-K/A filed on January 8, 2018; January 11, 2018; January 25, 2018; March 13, 2018; March 16, 2018; May 1, 2018; May 8, 2018; June 22, 2018; August 15, 2018; September 28, 2018; October 12, 2018; October 30, 2018; November 28, 2018 and December 7, 2018; |
| 4. | The Company’s Definitive Proxy on Schedule 14A filed on January 19, 2018, as supplemented on January 24, 2018; and | |
| 5. | The description of the Company’s Common Stock which is contained in the Company’s Registration Statement on Form 8-A (Registration No. 001-34502), as filed with the Commission on April 19, 2010, including any amendment or report filed for the purpose of updating such description. |
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicated that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
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Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
You may request a copy of any filings referred to above (excluding exhibits), at no cost, by contacting the Company at the following address:
Future FinTech Group Inc.
23F, National Development Bank Tower
No.2, Gaoxin 1st RD
Xi’an, Shaanxi, China, 710075
Tel: (86-29) 8187-8277
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Florida Business Corporation Act provides that a person who is successful on the merits or otherwise in defense of an action because of service as an officer or director of a corporation, is entitled to indemnification of expenses actually and reasonably incurred in such defense. Such act also provides that the corporation may indemnify an officer or director and advance expenses if such person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to a criminal action, had no reasonable cause to believe his conduct was unlawful. A court may order indemnification of an officer or director if it determines that such person is fairly and reasonably entitled to such indemnification in view of all the relevant circumstances.
These provisions are intended to afford directors and officers protection against, and to limit their potential liability for, monetary damages resulting from suits alleging a breach of the duty of care by a director or officer. As a consequence of this provision, shareholders of our company will be unable to recover monetary damages against directors or officers for action taken by them that may constitute negligence or gross negligence in performance of their duties unless such conduct falls within one of the foregoing exceptions. These provisions, however, do not alter the applicable standards governing a director’s or officer’s fiduciary duty and does not eliminate or limit the right of our Company or any shareholder to obtain an injunction or any other type of non-monetary relief in the event of a breach of fiduciary duty.
Our Second Amended and Restated Articles of Incorporation, as amended, and Amended and Restated Bylaws, as amended, provide, among other things, that a director, officer, employee or agent of the corporation may be indemnified against expenses (including attorneys’ fees inclusive of any appeal), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such claim, action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best of our interests, and with respect to any criminal action or proceeding, such person had no reasonable cause to believe that such person’s conduct was unlawful.
2
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by our director, officer or controlling person in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed hereby in the Securities Act and we will be governed by the final adjudication of such issue.
At the present time, there is no pending litigation or proceeding involving a director, officer, employee or other agent of ours in which indemnification would be required or permitted. We are not aware of any threatened litigation or proceeding, which may result in a claim for such indemnification.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this registration statement:
| * | Filed herewith. |
3
Item 9. Undertakings
(a) RULE 415 OFFERING.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii)To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
4
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Xi'an, Shaanxi Province, People’s Republic of China on December 20, 2018.
| Future FinTech Group Inc. (Registrant) | ||
| By: | /s/ Yongke Xue | |
| Yongke Xue | ||
| Chief Executive Officer and Chairman of the Board of Directors | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below appoints Yongke Xue as his true and lawful attorney-in-fact, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including any post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto and any other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated as of December 20, 2018.
| Name and Title | Date | |
| /s/ Yongke Xue | ||
| Yongke Xue, | December 20, 2018 | |
|
Chairman of the Board of Directors and Chief Executive Officer (principal executive officer) |
||
| /s/ Hanjun Zheng | ||
| Hanjun Zheng, | December 20, 2018 | |
| Interim Chief Financial Officer | ||
|
(principal financial officer and accounting officer) |
||
| /s/ Zhi Yan | ||
| Hongke Xue, Director | December 20, 2018 | |
| /s/ Johnson Lau | ||
| Johnson Lau, Director | December 20, 2018 | |
| /s/ Fuyou Li | ||
| Fuyou Li, Director | December 20, 2018 | |
| /s/ Yiliang Li | ||
| Yiliang Li, Director | December 20, 2018 |
5
INDEX TO EXHIBITS
| * | Filed herewith. |
6
Exhibit 5.1
December 20, 2018
Future FinTech Group Inc.
23F, National Development Bank Tower
No. 2, Gaoxin 1st Road
Xian, PRC 710075
Ladies and Gentlemen:
We have acted as counsel to Future FinTech Group Inc., a Florida corporation (the “Company”), in connection with the filing on the date hereof of a registration statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”). The Registration Statement relates to the registration under the Securities Act of 1933, as amended (the “Securities Act”), of 1,300,000 shares of the Company’s common stock, par value $0.001 (the “Shares”), issuable under the Company’s 2017 Omnibus Equity Plan (the “Plan”).
The opinion hereinafter set forth is given with regard to the Registration Statement, at the request of the Company, pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K. The only opinion rendered by this firm consists of the matter set forth in numbered paragraph (1) below (our “Opinion”), and no opinion is implied or to be inferred beyond such matter. Additionally, our Opinion is based upon and subject to the qualifications, limitations and exceptions set forth in this letter.
In rendering our Opinion, we have examined such agreements, documents, instruments and records as we deemed necessary or appropriate under the circumstances for us to express our Opinion, including, without limitation, the Second Amended and Restated Articles of Incorporation of the Company, as amended, the Amended and Restated Bylaws of the Company, as amended, the record of corporate proceedings, and the Plan. In making all of our examinations, we assumed the genuineness of all signatures, the authority of the persons who executed such documents, the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as copies, and the due execution and delivery of all documents by any persons or entities where due execution and delivery by such persons or entities is a prerequisite to the effectiveness of such documents. As to various factual matters that are material to our Opinion, we have relied upon certificates of public officials and certificates, resolutions, documents, statements and other information of the Company or its representatives. In addition, for purposes of the Opinion, we have assumed that a sufficient number of authorized but unissued shares of the Company’s common stock, par value $0.001 per share, will be available for issuance when the Shares are issued. We have not independently verified or investigated, nor do we assume any responsibility for, the factual accuracy or completeness of such factual statements.
We do not herein express any opinion concerning any matter respecting or affected by any laws other than provisions of the Florida Business Corporation Act (“FBCA”). We are generally familiar with the FBCA as currently in effect. We are not opining on, and we assume no responsibility for, the applicability to or effect on any of the matters covered herein of any other laws, the laws of any other jurisdiction or the local laws of any jurisdiction. The Opinion hereinafter set forth is based upon pertinent laws and facts in existence as of the date hereof, and we expressly disclaim any obligation to advise you of changes to such pertinent laws or facts that hereafter may come to our attention.
Based upon and subject to the foregoing, we are of the following opinion:
| (1) | the Shares, when issued in accordance with the terms of the Plan, and, in the case of options granted thereunder, upon due exercise and payment therefor, are or will be validly issued, fully paid and nonassessable. |
We hereby consent to the filing of this letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Sincerely, | |
| /s/ Garvey Schubert Barer, P.C. | |
| GARVEY SCHUBERT BARER, P.C. |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement of Future FinTech Group Inc. on Form S-8 of our report dated March 31, 2018, with respect to our audit of the consolidated financial statements as of and for the years ended December 31, 2017 and 2016, which report is included in the Annual Report on Form 10-K of Future FinTech Group Inc. for the year ended December 31, 2017.
| /s/ Wang Certified Public Accountant, P.C. | |
| Flushing, New York | |
| December 20, 2018 |