United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
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(Commission File Number) | (I.R.S. Employer Identification No.) |
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area code:
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
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. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On September 26, 2023, EdisonFuture, Inc., a Delaware corporation (“EdisonFuture”) and wholly-owned subsidiary of SPI Energy Co., Ltd., a Cayman Islands exempted company (the “Company”), entered into a stock purchase agreement (the “Purchase Agreement”) with Palo Alto Clean Tech Holding Limited, a British Virgin Islands exempted company which is owned and controlled by Xiaofeng Peng, the Chairman and Chief Executive Officer of the Company (the “Purchaser”). Pursuant to the terms of the Purchase Agreement, EdisonFuture agreed to sell to the Purchaser an aggregate of 12,000,000 shares of common stock, $0.004 par value (the “Shares”), of Phoenix Motor Inc., a Delaware corporation (“Phoenix”), at a per share price of $1.02, representing an aggregate purchase price of $12,240,000 (the “Purchase Price”). Phoenix is a subsidiary of the Company and Xiaofeng Peng also serves as its Chairman and Chief Executive Officer.
The Purchaser agreed to pay the Purchase Price to EdisonFuture by delivering to EdisonFuture on the date of closing (the “Closing”):
(a) a cash payment of $40,000 in immediately available funds by wire transfer to EdisonFuture, and
(b) a secured promissory note dated September 26, 2023 in the aggregate principal amount of $12,200,000 (the “Secured Promissory Note”), secured by a lien and pledge of all of the Purchaser’s interest in the Shares to EdisonFuture pursuant to a stock pledge agreement dated September 26, 2023 (the “Stock Pledge Agreement”).
The Secured Promissory Note bears interest at 3% per annum, payable annually in arrears, with the full principal balance of $12,200,000 due on the maturity date, which is three years from the Closing, or September 30, 2026.
The Stock Purchase Agreement, the Secured Promissory Note and the Stock Pledge Agreement are attached hereto as Exhibits 10.1, 10.2, and 10.3, respectively, and are incorporated herein by reference. The foregoing summaries of the terms of the Stock Purchase Agreement, the Secured Promissory Note and the Stock Pledge Agreement are subject to, and qualified in their entirety by, reference to such documents.
On September 28, 2023, the Company issued a press release announcing the transaction. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Item 7.01. Regulation FD Disclosure.
A copy of the Company’s press release issued on September 28, 2023 announcing the consummation of the transaction is attached as Exhibit 99.1 to this Current Report on Form 8-K.
The information furnished pursuant to Item 7.01 in this Current Report on Form 8-K, including Exhibit 99.1, shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, and shall not be deemed incorporated by reference into any filing made by the Company under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in any such filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit Number | Exhibit | ||
| 10.1 | Stock Purchase Agreement dated September 26, 2023 between EdisonFuture, Inc., as seller, and Palo Alto Clean Tech Holding Limited, as purchaser. | ||
| 10.2 | Secured Promissory Note dated September 26, 2023 made by Palo Alto Clean Tech Holding Limited to Edison Future, Inc. | ||
| 10.3 | Stock Pledge Agreement dated September 26, 2023 between Palo Alto Clean Tech Holding Limited, as debtor, and Edison Future, Inc., as secured party. | ||
| 99.1 | Press Release dated September 28, 2023. | ||
| 104 | Cover page interactive data file (embedded within the iXBRL document). |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| SPI ENERGY CO., LTD. | |||
| September 29, 2023 | By: | /s/ Xiaofeng Peng | |
| Xiaofeng Peng | |||
| Chief Executive Officer | |||
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Exhibit 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (“Agreement”) is made and entered into as of September 26, 2023, by and between EdisonFuture, Inc., a Delaware corporation (the “Seller”), and Palo Alto Clean Tech Holding Limited, a British Virgin Islands exempted company (the “Purchaser”).
WHEREAS, Phoenix Motor Inc., a Delaware corporation (the “Company”), has 21,291,924 shares of Common Stock issued and outstanding (the “Common Stock); and
WHEREAS, the Seller desires sell to the Purchaser, and the Purchaser wishes to purchase from the Seller, 12,000,000 shares of the Common Stock (the “Shares”) of the Company owned by Seller, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound, hereby covenant and agree as follows:
1. Purchase and Sale. Upon the terms and subject to the conditions set forth in this Agreement, the Seller shall sell to the Purchaser, and the Purchaser shall purchase from the Seller, all of the Shares.
2. Purchase Price. The aggregate purchase price (based on a purchase price of $1.02 per share) to be paid by the Purchaser to the Seller for the Shares shall be Twelve Million Two Hundred and Forty Thousand Dollars ($12,240,000) (the “Purchase Price”).
3. Payment of Purchase Price. The Purchaser shall pay the Purchase Price to the Seller by delivering to the Seller on the date hereof (the “Closing”): (a) payment of $40,000, by immediately available funds by wire transfer to Seller, (b) an executed $12,200,000 Secured Promissory Note, dated of even date herewith, in the form of Exhibit A attached hereto, and (c) an executed Stock Pledge Agreement covering the Shares, dated of even date herewith, in the form of Exhibit B attached hereto.
4. Delivery of Shares. The Seller shall deliver to the Purchaser a duly executed and endorse stock certificate evidencing the Shares, subject to the Stock Pledge Agreement.
5. Legend. The stock certificate representing the Shares shall be endorsed with such legends as are required by all applicable laws, rules and regulations and agreements as determined by the Company in its sole and absolute discretion.
6. Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Purchaser as follows:
(a) Incorporation, Good Standing and Qualification. The Seller is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(b) Due Authorization and Enforceability. The Seller has full power and authority to enter into this Agreement, and, upon the execution and delivery by the Seller and the Purchaser, this Agreement shall constitute the legally valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar applicable laws affecting creditors’ rights generally or by general equitable principles affecting the enforcement of contracts.
(c) Valid Issuance of Shares. The Shares are duly and validly issued, fully-paid and nonassessable. The Shares are free and clear of all claims, liens and encumbrances of every kind and nature whatsoever, except for those restrictions which are provided for hereunder.
7. Representation and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Seller as follows:
(a) Incorporation, Good Standing and Qualification. The Purchaser is a exempted company duly incorporated, validly existing and in good standing under the laws of the British Virgin Islands.
(b) Due Authorization and Enforceability. The Purchaser has full power and authority to enter into this Agreement, and, upon the execution and delivery by the Seller and the Purchaser, this Agreement shall constitute the legally valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar applicable laws affecting creditors’ rights generally or by general equitable principles affecting the enforcement of contracts.
(c) Purchase Entirely for Own Account. The Shares to be received by the Purchaser are being acquired for investment for the Purchaser’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in or otherwise distributing the same. The Purchaser does not have any contract, undertaking, agreement or arrangement with any person or entity to sell, transfer or grant participations to such person or entity or to any third person, with respect to any of the Shares.
(d) Disclosure of Information. The Purchaser has received all the information the Purchaser considers necessary or appropriate for deciding whether to purchase the Shares. The Purchaser has had an opportunity to ask questions and receive answers from the Seller and the Company and its officers regarding the business, properties, prospects and financial condition of the Company. The Purchaser understands and acknowledges that such discussions, as well as any written information received from the Seller or the Company: (i) were intended to describe the aspects of the Company’s business and prospects which the Seller and the Company believe to be material, but were not necessarily an exhaustive description and (ii) may have contained forward-looking statements involving known and unknown risks and uncertainties which may cause the Company’s actual results in future periods or plans for future periods to differ materially from what was anticipated and that no representations or warranties were or are being made with respect to any such forward-looking statements or the probability of achieving any of the results projected in any of such forward-looking statements.
(e) Investment Experience. The Purchaser is an investor in securities of companies which are similarly-situated as the Company and acknowledges that the Purchaser is able to fend for the Purchaser, can bear the economic risk of the Purchaser’s investment and has such knowledge, sophistication and experience in financial or business matters that the Purchaser is capable of evaluating the merits and risks of the investment in the Shares. The Purchaser has the ability to bear the economic risks of the investment for an indefinite period of time and is able to afford the complete loss of such investment. Purchaser is an “accredited investor” within the meaning of Rule 501 under the Securities Act,
(f) Restricted Securities. The Purchaser understands that the Shares the Purchaser is purchasing are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Seller in a transaction not involving a public offering and that under such laws and applicable regulations the Shares may be resold without registration under the Securities Act of 1933, as amended (the “Act”), only in certain limited circumstances. The Purchaser acknowledges that neither the Seller nor the Company has any obligation to register or qualify the Shares for resale. In the absence of an effective registration statement covering the Shares or an available exemption from registration under the Act, the Shares must be held indefinitely.
(g) Tax Advisors. The Purchaser has reviewed with the Purchaser’s own tax advisors the federal, state and local tax consequences of this investment, where applicable, and the transactions contemplated by this Agreement. The Purchaser is relying solely on such advisors and not on any statements or representations of the Seller or the Company or any of their agents and understands that the Purchaser shall be responsible for the Purchaser’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement.
(h) Purchaser’s Counsel. The Purchaser acknowledges that the Purchaser has had the opportunity to review this Agreement and the transactions contemplated hereby with the Purchaser’s own legal counsel. The Purchaser is relying solely on the Purchaser’s legal counsel and not on any statements or representations of the Seller or the Company or any of their agents for legal advice with respect to this investment or the transactions contemplated by this Agreement.
(i) Solvency. On the Closing, immediately after giving effect to the consummation of the transactions contemplated by this Agreement (including the payment of the Purchase Price, the Secured Promissory Note and payment of all related fees and expenses) Purchaser will be solvent.
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8. Indemnification.
(a) Indemnification by the Seller. The Seller shall indemnify and hold harmless the Purchaser, at all times after the date hereof, against and in respect of: (i) any damage or deficiency resulting from any misrepresentation, breach of warranty, or nonfulfillment of any agreement on the part of the Seller under this Agreement and (ii) all actions, suits, proceedings, demands, assessments, judgments, costs and expenses incident to any of the foregoing.
(b) Indemnification by the Purchaser. The Purchaser shall indemnify and hold harmless the Seller, at all times after the date hereof, against and in respect of: (i) any damage or deficiency resulting from any misrepresentation, breach of warranty, or nonfulfillment of any agreement on the part of the Purchaser under this Agreement and (ii) all actions, suits, proceedings, demands, assessments, judgments, costs and expenses incident to any of the foregoing.
9. Miscellaneous.
(a) Notices. Any notice required or permitted under this Agreement shall be given in writing and (i) if to the Seller, at the Company’s principal place of business or (ii) if to the Purchaser, at the Purchaser’s principal residence, and shall be deemed to have been given upon delivery if personally delivered or twenty-four (24) hours after mailing if sent by registered or certified mail addressed in accordance with the foregoing or to such other address of which notice is so given.
(b) Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed an original, but all of which together shall constitute one and the same document.
(c) Amendment. This Agreement may only be modified, supplemented or amended by a written instrument executed by the parties hereto.
(d) Entire Agreement. This Agreement (including Exhibits A and B attached hereto and incorporated herein by this reference) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
(e) Applicable Law. This Agreement and the legal relations between the parties hereto shall be governed by and construed in accordance with the laws of the State of Delaware. without regard to its conflict of laws principles.
(f) Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.
(g) Severability. If any provision of this Agreement shall be unlawful, void or unenforceable in whole or in part for any reason, such provision or such part thereof shall be deemed separable from and shall in no way affect the validity or enforceability of the remaining provisions of this Agreement.
(h) Construction. In this Agreement whenever the content so requires the masculine, feminine and neuter genders shall include the others and the singular and plural shall include the other.
(i) Further Assurances. Each of the parties hereto shall execute any and all documents and do any and all other things necessary or desirable to carry out the intent and purposes of this Agreement.
(j) Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, successors, assigns and legal and personal representatives.
(k) Assignment. This Agreement may not be assigned by either party hereto without the prior written consent of the other party.
(l) Interpretation. The language in all parts of this Agreement shall in all cases be construed simply, according to its fair meaning, and not strictly for or against either party hereto even if such party caused this Agreement or any part of it to be drafted.
[Remainder of Page Intentionally Left Blank; Signatures Follow]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.
SELLER:
EDISONFUTURE, INC.
By: /s/ Hoong Khoeng Cheong
Name: Hoong Khoeng Cheong
Title: Secretary and Treasurer
PURCHASER:
PALO ALTO CLEAN TECH HOLDING LIMITED
By: /s/ Xiaofeng Peng
Name: Xiaofeng Peng
Title: Director
EXHIBIT A
Form of Secured Promissory Note
See Attached
EXHIBIT B
Form of Pledge Agreement
See Attached
Exhibit 10.2
SECURED
PROMISSORY NOTE
| $12,200,000 | September 26, 2023 |
FOR VALUE RECEIVED, PALO ALTO CLEAN TECH HOLDING LIMITED, a British Virgin Islands exempted company (the “Maker”), hereby promises to pay to the order of EDISON FUTURE, INC.. or its successors and assigns (together with its successors and assigns, the “Holder”), the principal sum of Twelve Million Two Hundred Thousand Dollars ($12,200,000), with interest on the unpaid principal amount of this Secured Promissory Note (as amended, modified, extended, restated, replaced, or supplemented from time to time, this “Note”) from time to time as provided herein. Capitalized terms used but not defined in this Note shall have the meanings given to them in Exhibit A to this Note.
1. Interest. Interest shall accrue on the unpaid principal sum of this Note at an annual rate equal to three percent (3.00%) commencing on the date hereof through and including the date on which this Note is paid in full. Interest shall be calculated on the basis of a year of 365 days and charged for the actual number of days elapsed. The Maker promises to pay accrued but unpaid interest on the principal amount of this Note each month on or before the first day of each month, commencing on the first day of the month following the date hereof.
2. Default Interest. From and after the Maturity Date or such earlier date as all principal owing hereunder becomes due and payable by acceleration or otherwise, or at the Holder’s option upon the occurrence and during the continuance of an Event of Default, the outstanding principal balance of this Note shall bear interest at an increased rate per annum (computed on the basis of a 365-day year, actual days elapsed) equal to five percent (5.00%) per annum above the rate of interest from time to time applicable to this Note.
3. Regular Principal Payments; Mandatory Prepayments.
(a) The Maker covenants and agrees to repay to the Holder a portion of the principal amount of this Note equal to One Million Dollars ($1,000,000) on or before each calendar quarter end, commencing December 31, 2023.
(b) In addition, the Maker covenants and agrees to repay to the Holder any remaining unpaid principal amount of this Note on September 30, 2026 (the “Maturity Date”).
4. Payments. All payments of this Note shall be made by the Maker by wire transfer of immediately available funds to an account designated in writing by the Holder. All payments shall be made in United States dollars. If any payment to be made by the Maker under this Note shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest.
5. Prepayment. The Maker may prepay the outstanding principal amount of this Note in whole or in part at any time, provided that such prepayment is accompanied by the payment of all accrued but unpaid interest under this Note as of the date of such prepayment. Any such prepayment shall be applied (a) first, to any accrued but unpaid interest under this Note as of the date of such prepayment, and (b) second, to reduce the principal repayment installments under this Note in the order designated by the Maker (or, if the Maker makes no such designation, principal prepayments made pursuant to this Section 5 shall be applied to the principal installments under this Note in the inverse order of maturity).
6. Records. The Maker hereby authorizes the Holder to record on a schedule attached hereto (as such schedule may be amended, restated, supplemented, extended or otherwise modified from time to time) or in the books and records of the Holder the amount of all payments of principal and interest in respect of this Note, which records shall, in the absence of manifest error, be conclusive; provided, however, that the failure to make such notation shall not limit or otherwise affect the obligations of the Maker under this Note.
7. Security. This Note is secured in the manner and to the extent set forth in the Security Agreement.
8. Representations and Warranties. The Maker represents and warrants to the Holder that:
(a) Legal Status. The Maker is a British Virgin Islands exempted company duly organized, validly existing and in good standing under the laws of the British Virgin Islands. The Maker is duly qualified to transact business and is in good standing in each jurisdiction in which, based upon its current operations, the failure to so qualify would have a material adverse effect on the Maker’s business, financial condition, results of operations or prospects.
(b) Authorization and Validity. Each Loan Document has been duly authorized by the Maker and, upon the execution and delivery thereof, will constitute a legal, valid and binding agreement and obligation of the Maker enforceable in accordance with its terms.
(c) No Violation. The execution, delivery and performance by the Maker of each Loan Document does not (i) violate any provision of any law or regulation, (ii) contravene any provision of the certificate of formation or limited liability company agreement of the Maker, or (iii) result in any breach of or default under any contract, obligation, indenture or other instrument to which the Maker is a party or by which the Maker may be bound.
(d) Permits, Franchises. The Maker possesses, and will hereafter possess, all permits, consents, approvals, franchises and licenses required to enable it to conduct the business in which it is now engaged in compliance in all material respects with applicable law.
9. Covenants. The Maker covenants that so long as any liabilities (whether direct or contingent, liquidated or unliquidated) or obligations of the Maker to the Holder under the Loan Documents remain outstanding, and until payment in full of all obligations of the Maker under the Loan Documents, the Maker shall:
(a) Financial Statements. Provide to the Holder, in form and detail reasonably satisfactory to the Holder, not later than forty five (45) days after the end of each fiscal quarter of the Maker, financial statements of the Maker for such fiscal quarter (or if such financial statements are being delivered with respect to the end of any fiscal year of the Maker, for such full fiscal year of the Maker), prepared by the Maker, to include a balance sheet, income statement and statement of cash flows all in reasonable detail, certified by the chief executive officer, chief financial officer, treasurer or controller of the Maker as fairly presenting the financial condition, results of operations, members’ equity and cash flows of the Maker.
(b) Notices of Default. Promptly notify the Holder of the occurrence of any Event of Default.
(c) Compliance. Preserve and maintain all licenses, permits, governmental approvals, rights, privileges and franchises necessary for the conduct of its business; and comply with the provisions of all documents pursuant to which the Maker is organized and/or which govern the Maker’s continued existence and with the requirements of all laws, rules, regulations and orders of any governmental authority applicable to the Maker and/or its business excepting, in each case, any failure to comply which would not reasonably be expected to result in a material adverse effect on the Maker’s business, financial condition, results of operations or prospects.
(d) Payment of Obligations; Taxes. (i) Pay and discharge as the same shall become due and payable, all its material obligations and liabilities, including all material tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves are being maintained by the Maker; and (ii) timely file all material tax returns required to be filed.
(e) Distributions. Not make any dividend or other distribution (whether in cash, securities or other property) with respect to any membership interest or other equity interest of the Maker.
(f) Dispositions. Not sell or otherwise dispose of its assets, other than (i) dispositions of obsolete or worn out property or property no longer useful to the business of the Maker, whether now owned or hereafter acquired, in the ordinary course of business; or (ii) dispositions of equipment or real property to the extent that such property is exchanged for credit against the purchase price of similar replacement property or the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property or other equipment or capital assets useful to the Maker’s business.
(g) Fundamental Changes. Not (i) merge, dissolve, liquidate or consolidate with or into another person or entity, unless the Maker is the surviving company, or (ii) dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any person or entity.
10. Amendment. Amendments, modifications and waivers of this Note may be made only in a writing signed in ink by the Maker and the Holder.
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11. Defaults and Remedies.
(a) Events of Default. An “Event of Default” shall mean the occurrence or existence of any one or more of the following:
(i) the Maker shall default in any payment of the principal or interest of this Note, when and as the same shall become due and payable;
(ii) any representation or warranty made by the Maker under this Note or any other Loan Document shall prove to be incorrect, false or misleading in any material respect when furnished or made;
(iii) (1) a court enters a decree or order for relief with respect to the Maker in an involuntary case under Title 11, United States Code, as amended from time to time, and any successor statute thereto (the “Bankruptcy Code”), which decree or order is not stayed or other similar relief is not granted under any applicable federal or state law; or (2) the continuance of any of the following events for ninety (90) days unless dismissed, bonded or discharged: (A) an involuntary case is commenced against the Maker under any applicable bankruptcy, insolvency or other similar debtor relief law now or hereafter in effect; or (B) a decree or order of a court for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Maker or over all or a substantial part of its property, is entered; or (C) an interim receiver, trustee or other custodian is appointed without the consent of the Maker for all or a substantial part of the property of the Maker;
(iv) (1) the Maker commences a voluntary case under the Bankruptcy Code, or consents to the entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case under any such law or consents to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or (2) the Maker makes any assignment for the benefit of creditors; or
(v) the Maker defaults in the performance of or compliance with any obligation, agreement or other provision contained herein or in any other Loan Document (other than those specifically described as an “Event of Default” in this Section 11(a)), and such default shall continue for a period of twenty (20) days from its occurrence.
(b) Remedies. If an Event of Default occurs, then (a) the outstanding principal amount of, and all accrued interest on and all other amounts payable under, this Note shall at the Holder’s option and without notice become immediately due and payable without presentment, demand, protest or notice of dishonor, all of which are hereby expressly waived by the Maker; provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Maker under the Bankruptcy Code, the unpaid principal amount of this Note and all interest and other amounts payable under this Note shall automatically become due and payable; and (b) the Holder shall have all rights, powers and remedies available under the Loan Documents, in equity or accorded by law. All rights, powers and remedies of the Holder may be exercised at any time by the Holder and from time to time after the occurrence of an Event of Default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity.
12. Remedies Cumulative. No remedy herein conferred upon the Holder is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder, under the other Loan Documents or now or hereafter existing at law or in equity or by statute or otherwise.
13. Remedies Not Waived. No course of dealing between the Maker and the Holder or any delay on the part of the Holder in exercising any rights hereunder or any of the Loan Documents shall operate as a waiver of any right.
14. Costs, Expenses and Attorneys’ Fees. The Maker shall pay to the Holder immediately upon demand the full amount of all payments, advances, charges, costs and expenses, including reasonable attorneys’ fees, expended or incurred by the Holder in connection with the enforcement of the Holder’s rights and/or the collection of any amounts which become due to the Holder under this Note, and the prosecution or defense of any action in any way related to this Note, including without limitation, any action for declaratory relief, whether incurred at the trial or appellate level, in an arbitration proceeding or otherwise, and including any of the foregoing incurred in connection with any bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or motion brought by the Holder or any other person) relating to the Maker or any other person or entity.
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15. Covenants Bind Successors and Assigns. All the covenants, stipulations, promises and agreements in this Note shall inure to the benefit of and be binding upon the successors and permitted assigns of the Maker and the Holder. The Maker may not assign its obligations hereunder without the prior written consent of the Holder.
16. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
17. Venue and Jurisdiction. The Maker agrees that any action or suit against the Holder arising out of or relating to this Note shall be filed in federal court or state court located in California. The Maker agrees that Holder shall not be deemed to have waived its rights to enforce this section by filing an action or suit against the Maker in a venue outside of California. If the Holder does commence an action or suit arising out of or relating to this Note, the Maker agrees that the case may be filed in federal court or state court in California. The Holder reserves the right to commence an action or suit in any other jurisdiction where the Maker or any collateral has any presence or is located. The Maker consents to personal jurisdiction and venue in such forum selected by the Holder and waives any right to contest jurisdiction and venue and the convenience of any such forum. The provisions of this section are material inducements to the Holder’s acceptance of this Note.
18. Interest Rate. If interest payable under this Note is in excess of the maximum permitted by law, the interest chargeable hereunder shall be reduced to the maximum amount permitted by law.
19. Headings. The headings in this Note are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
20. Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions hereof.
21. Notices. All notices, demands and other communications provided for or permitted hereunder shall be made in writing and shall be by registered or certified first-class mail, return receipt requested, telecopier (with receipt confirmed), courier service or personal delivery as follows (or to such other address or facsimile number as may be indicated by the Maker or the Holder to the other party in writing in accordance with this Section 21):
| If to the Maker: | Palo Alto Clean Tech Holding Limited |
740 Mayview Avenue, Palo Alto, CA 94303
Tel: 888-575-1940
Attention: Xiaofeng Peng
| If to the Holder: | EdisonFuture, Inc. |
4803, Urbani Avenue, McClellan Park, California 95652
Tel: 888-575-1940
Attention: Hoong Khoeng Cheong
All such notices and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; when delivered by courier, if delivered by commercial overnight courier service; if mailed, upon receipt of the same; or if telecopied, when receipt is acknowledged.
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IN WITNESS WHEREOF, the Maker has caused this instrument to be duly executed as of the day and year first above written.
PALO ALTO CLEAN TECH HOLDING LIMITED,
a British Virgin Islands exempted company
By: /s/ Xiaofeng Peng
Name: Xiaofeng Peng
Title: Director
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EXHIBIT A
Defined Terms
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the State of California.
“Loan Documents” means, collectively, the Note and the Security Agreement.
“Security Agreement” means that certain Security Agreement entered into by the Maker in favor of the Holder dated as of even date herewith, as amended, modified, extended, restated, replaced, or supplemented from time to time.
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Exhibit 10.3
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this “Agreement”) is effective as of September 26, 2023, by and between PALO ALTO CLEAN TECH HOLDING LIMITED, a British Virgin Islands exempted company (“Debtor”), and EDISONFUTURE, INC., a Delaware corporation (“Secured Party”), with reference to the following facts:
A. Debtor has executed and delivered to Secured Party a Secured Promissory Note of even date herewith in the original principal amount of Twelve Million Two Hundred Thousand Dollars ($12,200,000) (“Note”).
B. Debtor desires to enter into this Agreement to secure payment and performance of its obligations under the Note.
NOW, THEREFORE, for valuable consideration, Debtor and Secured Party agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall have the following definitions:
1.1 “Collateral” means 12,000,000 shares of common stock of Phoenix Motor Inc., a New York corporation, purchased by Debtor from Secured Party pursuant to that certain Stock Purchase Agreement dated as of September 26, 2023.
1.2 “Company” means Phoenix Motor Inc., a Delaware corporation.
1.3 “Event of Default” means any event of default specified in Section 4 herein.
1.4 “Obligations” means payment and performance of all obligations of Debtor under the Note.
2. Grant of Security Interest. To secure the Obligations, Debtor hereby grants and assigns to Secured Party a security interest in the Collateral.
3. Debtor’s Covenants.
3.1 Negative Covenants. Without Secured Party’s prior written consent, Debtor shall not sell, transfer, assign, pledge, mortgage, encumber, hypothecate, or otherwise dispose of or abandon any or all of the Collateral.
3.2 Voting Rights and Dividends. So long as there shall exist no Event of Default, Debtor shall be entitled to (a) exercise his rights to voting power with respect to the Collateral pledged under this Agreement, and (b) receive dividends, if any, paid by the Company. Upon an Event of Default, (a) Secured Party acting alone may exercise voting rights with respect to the Collateral, (b) Secured Party alone shall be entitled to receive dividends, if any, paid by the Company (and Debtor hereby agrees promptly to remit to Secured Party any dividends received from the Company upon after the occurrence of an Event of Default unless and until such Event of Default has been waived in writing by Secured Party), and (c) Secured Party may cause the Collateral to be reissued in Secured Party’s name to facilitate the exercise of such voting rights and receipt of such dividends.
3.3 Delivery of Collateral. All certificates or instruments representing or evidencing the Collateral shall be promptly delivered by Debtor to Secured Party or Secured Party’s designee pursuant hereto at a location designated by Secured Party and shall be held by or on behalf of Secured Party pursuant hereto, and shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to Secured Party.
4. Event of Default.
The occurrence of any of the following events or conditions shall constitute and is hereby defined to be an “Event of Default”:
(i) The occurrence of any default or breach under the Note; and
(ii) The sale, lease, transfer, assignment, pledge, mortgage, encumbrance, hypothecation or other disposal of or abandonment of any or all of the Collateral without the prior written consent of Secured Party.
5. Release of Collateral. The parties hereby agree that upon each of Debtor’s payment of $1,000,000 of the Principal Amount (as such term is defined under the Note) together with interest and any and all other outstanding obligations under the Note, one-twelfth (1/12) of the Collateral (1,000,000 shares of the Company’s Common Stock) shall be released to Debtor.
6. Remedies Upon Default. Upon the occurrence of any Event of Default, Secured Party shall, in addition to all other rights and remedies provided hereunder or any document or agreement referred to herein, have the following rights and remedies:
6.1 Uniform Commercial Code. Secured Party shall have all of the rights and remedies of a secured party under the New York Uniform Commercial Code and under all other applicable laws.
6.2 Sale of Collateral. Secured Party may sell or dispose of the unreleased portion of the Collateral at public or private sale, in one or more sales, as a unit or in parcels, at wholesale or retail, and at such time and place and on such terms as Secured Party may determine. Secured Party may be the purchaser of any or all of the Collateral at any public or private sale. If, at any time when Secured Party shall determine to exercise Secured Party’s right to sell all or any part of the Collateral and such Collateral, or the part thereof to be sold, Secured Party has been advised by legal counsel or has determined that the unreleased portion of the Collateral is subject to the Securities Act of 1933, as amended, or any state securities laws, Secured Party in Secured Party’s sole and absolute discretion, is hereby expressly authorized to sell such unreleased portion Collateral, or any part thereof, subject to obtaining all required regulatory approvals, by private sale in such manner and under such circumstances as Secured Party may deem necessary or advisable in order that such sale may be effected legally without registration or qualification under applicable securities laws (including without limitation without any obligation to advertise). Without limiting the generality of the foregoing, Secured Party, in Secured Party’s sole and absolute discretion, may approach and negotiate with a restricted number of potential purchasers to effect such sale or restrict such sale to a purchaser or purchaser who will represent and agree that such purchaser or purchasers are purchasing for his or their own account, for investment only, and not with a view to the distribution or sale of such unreleased portion of the Collateral or any part thereof. Any such sale shall be deemed to be a sale made in a commercially reasonable manner within the meaning of the Uniform Commercial Code of the State of New York and Debtor hereby consents and agrees that Secured Party shall incur no responsibility or liability for selling all or any part of the unreleased portion of the Collateral at a price which is not unreasonably low, notwithstanding the possibility that a higher price might be realized if the sale were public. Any public sale of any or all of the unreleased portion of the Collateral may be postponed from time to time by public announcement at the time and place last scheduled for the sale.
6.3 Protection of Collateral. Secured Party may discharge claims, demands, liens, security interests, encumbrances and taxes affecting any or all of the Collateral and take such other actions as Secured Party determines to be necessary or appropriate to protect the Collateral and Secured Party’s security interest therein.
7. Liability for Deficiency. Debtor shall at all times remain liable for any deficiency remaining on the Obligations after any disposition of any or all of the Collateral.
8. Waivers. Debtor waives all rights which Debtor may have (a) to require marshaling of assets or liens in the event of a sale of the Collateral under this Agreement; (b) to require Secured Party to exhaust Debtor’s rights or remedies against any party, or any other collateral securing any or all of the Obligations before pursuing Debtor’s rights or remedies under this Agreement; (c) to require Secured Party to exercise any other right or power or to pursue any other remedy which Secured Party may have under any agreement or applicable law before pursuing Secured Party’s rights or remedies under this Agreement; and (d) to assert any defense to Secured Party’s enforcement of this Agreement based on an election of remedies by Secured Party or the manner in which Secured Party exercises any remedy which destroys, diminishes, or interferes with any or all subrogation, reimbursement, or other rights of Debtor, whether by operation of any statute or otherwise.
9. Cumulative Remedies. Secured Party’s rights and remedies under this Agreement are cumulative with and in addition to all other rights and remedies which Secured Party may have in connection with the obligations. Secured Party may exercise any one or more of its rights and remedies under this Agreement at Secured Party’s option and in such order as Secured Party may determine in Secured Party’s sole and absolute discretion.
10. Attorneys’ Fees. Upon Secured Party’s demand, Debtor shall reimburse Secured Party for all costs and expenses, including without limitation, reasonable attorney’s fees and costs, which are incurred by Secured Party, whether before or after Debtor’s default under this Agreement, in connection with any or all of the following: (a) the exercise of any or all of Secured Party’s rights and remedies under this Agreement or the enforcement of any obligation of any other party liable to Secured Party in connection with the Obligations, whether or not any legal proceedings are instituted by Secured Party; (b) the protection, preservation, management, operation, or maintenance of any or all of the Collateral; or (c) the sale or disposition of any or all of the Collateral.
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11. Notices. All notices, requests and other communications hereunder shall be in writing and shall be delivered by courier or other means of personal service, or sent by facsimile or by deposit in the United Stated first class mail, sent certified or registered, return receipt requested, postage prepaid and addressed to:
If to Secured Party to:
EDISONFUTURE, INC.
4803, Urbani Avenue, McClellan Park, California 95652
Telephone: 888-575-1940
Email: hk.cheong@spigroups.com
If to Debtor:
PALO ALTO CLEAN TECH HOLDING LIMITED
740 Mayview Avenue, Palo Alto , CA94303
Telephone: 888-575-1940
Email: denton.peng@spigroups.com
All notices, requests and other communications shall be deemed given on the date of delivery, if given by personal service, or, if sent by mail, five (5) days after deposit in the United Stated first class mail, sent certified or registered, return receipt requested, postage prepaid to the address set forth above. Any party may change their address for notices, requests and other communications by giving notice in the manner specified above.
12. Interpretation. This Agreement shall be construed in accordance with and governed by the laws of the State of New York. The headings to sections of this Agreement are for convenience only, and they do not in any way limit or amplify any of the terms of this Agreement and shall not be used in interpreting this Agreement.
13. Entire Agreement. This Agreement, together with the other documents being delivered pursuant to or in connection with this Agreement, constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
14. Applicable Law; Venue. This Agreement is to be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of laws principles thereof. Any suit brought hereon, shall be brought in the state or federal courts sitting in New York, New York, the parties hereby waiving any claim or defense that such forum is not convenient or proper.
15. Severability. If any provision of this Agreement shall be unlawful, void or unenforceable in whole or in part for any reason, such provision or such part thereof shall be deemed separable from and shall in no way affect the validity or enforceability of the remaining provisions of this Agreement.
16. Amendment. This Agreement may be modified only by a written agreement signed by Debtor and Secured Party.
17. Counterparts; Electronic Copies. This Agreement may be executed in more than one counterpart, each of which shall be deemed an original, but all of which together shall constitute one and the same document. Executed copies of the signature pages of this Agreement sent by facsimile or transmitted electronically in Portable Document Format (PDF) shall be treated as originals, fully binding and with full legal force and effect, and each party hereto waives any rights it may have to object to such treatment.
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IN WITNESS WHEREOF, the undersigned do hereby execute this Agreement as of the date and year first set forth above.
DEBTOR:
PALO ALTO CLEAN TECH HOLDING LIMITED
By: /s/ Xiaofeng Peng
Name: Xiaofeng Peng
Title: Director
SECURED PARTY:
EDISONFUTURE, INC.
By: /s/ Hoong Khoeng Cheong
Name: Hoong Khoeng Cheong
Title: Secretary and Treasurer
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Exhibit 99.1
SPI Energy Announces Sale of Majority Stake in Phoenix Motor
McClellan Park, CA / ACCESSWIRE / September 28, 2023 / SPI Energy Co., Ltd., (NASDAQ: SPI) (the "Company"), a global renewable energy company and provider of solar storage solutions for business, residential, government, logistics and utility customers, today announced the sale of 12 million shares of its subsidiary, Phoenix Motor Inc. (NASDAQ: PEV). The transaction represents 56.36% of SPI’s equity interest in Phoenix Motor.
This strategic move reduces SPI’s ownership stake in Phoenix Motor to 25.83%, thereby eliminating the requirement to consolidate Phoenix Motor’s financial results into SPI’s financial statements. By divesting the majority of its stake in Phoenix Motor, SPI eliminates the impact of Phoenix Motor’s net losses on its own profitability, paving the way for improved financial performance.
The 12 million shares were sold by the Company’s wholly owned Edisonfuture Inc. subsidiary at a price of $1.02 per share, representing an aggregate transaction value of $12.24 million.
Moving forward, SPI Energy, through its Edisonfuture subsidiary, will continue to hold a minority stake in Phoenix Motor and remain committed to its success.
About SPI Energy
SPI Energy Co., Ltd. (NASDAQ: SPI) is a global renewable energy company and provider of solar, storage and electric vehicle (EV) solutions that was founded in 2006 in Roseville, California and is headquartered in McClellan Park, California.
The company has three core divisions: SolarJuice which has solar wholesale distribution in Australia, as well as residential solar and roofing installation and solar module manufacturing under the Solar4America brand. SPI Solar and Orange Power which operate a commercial & utility solar division. SolarJuice is the leader in renewable energy system solutions for residential and small commercial markets and has extensive operations in the Asia Pacific and North America markets. The SPI Solar commercial & utility solar division provides a full spectrum of EPC services to third party project developers, and develops, owns and operates solar projects that sell electricity to the grid in multiple regions, including the U.S., U.K., and Europe. Phoenix Motor is a leader in medium-duty commercial electric vehicles, and is developing EV charger solutions, electric pickup trucks, electric forklifts, and other EV products.
SPI maintains global operations in North America, Australia, Asia and Europe and is also targeting strategic investment opportunities in fast growing green energy industries such as battery storage, charging stations, and other EVs which leverage the Company's expertise and substantial solar cash flow.
For more information on SPI Energy and its subsidiaries, the Company recommends that stockholders, investors and any other interested parties read the Company's public filings and press releases available under the Investor Relations section at or available at www.sec.gov.
Forward-Looking Statements
This press release contains forward-looking statements, as that term is defined in the Private Litigation Reform Act of 1995, that involve significant risks and uncertainties. Forward-looking statements can be identified through the use of words such as “may," "might," "will," "intend," "should," "could," "can," "would," "continue," "expect," "believe," "anticipate," "estimate," "predict," "outlook," "potential," "plan," "seek," and similar expressions and variations or the negatives of these terms or other comparable terminology. Readers are cautioned not to place undue reliance on these forward-looking statements, which reflect the Company's current expectations and speak only as of the date of this release. Actual results may differ materially from the Company's current expectations depending upon a number of factors. These factors include, among others, the coronavirus (COVID-19) and the effects of the outbreak and actions taken in connection therewith, adverse changes in general economic and market conditions, competitive factors including but not limited to pricing pressures and new product introductions, uncertainty of customer acceptance of new product offerings and market changes, risks associated with managing the growth of the business, and those other risks and uncertainties that are described in the "Risk Factors" section of the Company's annual report filed on Form 10-K filed with the Securities and Exchange Commission. Except as required by law, the Company does not undertake any responsibility to revise or update any forward-looking statements.
Contact:
SPI Energy Co., Ltd.
IR Department
Email: ir@spigroups.com
Dave Gentry
RedChip Companies, Inc.
Phone:(407) 491-4498
SPI@redchip.com
SOURCE: SPI Energy Co., Ltd.
Cover |
Sep. 26, 2023 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Sep. 26, 2023 |
| Entity File Number | 001-37678 |
| Entity Registrant Name | SPI Energy Co., Ltd. |
| Entity Central Index Key | 0001210618 |
| Entity Tax Identification Number | 20-4956638 |
| Entity Incorporation, State or Country Code | E9 |
| Entity Address, Address Line One | 4803 Urbani Ave. |
| Entity Address, City or Town | McClellan Park |
| Entity Address, State or Province | CA |
| Entity Address, Postal Zip Code | 95652 |
| City Area Code | (408) |
| Local Phone Number | 919-8000 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Title of 12(b) Security | Ordinary Share |
| Trading Symbol | SPI |
| Security Exchange Name | NASDAQ |
| Entity Emerging Growth Company | false |
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