UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 OF THE
SECURITIES EXCHANGE ACT OF 1934
For the month of December 2023
Commission File Number 001-41631
Xiao-I Corporation
(Translation of registrant’s name into English)
5/F, Building 2, No. 2570 Hechuan Road
Minhang District, Shanghai, China 201101
(Address of principal executive offices)
Indicate by check mark whether the registrant
files or will file annual reports under cover of Form 20-F or Form 40-F:
Form 20-F ☒ Form 40-F ☐
PREFERRED SHARES ISSUANCE TO AN OFFICER
On December 13, 2023, Xiao-I Corporation
(the “Company”) issued 3,700,000 preferred shares, each with a par value of US$0.00005 and carrying a voting right
equivalent to 20 votes (the “3.7 Million Preferred Shares” or the “Preferred Shares”) to ZunTian Holding
Limited (“ZunTian”), an existing shareholder of the Company (the “Issuance”). ZunTian is a
BVI-incorporated company wholly owned and controlled by Mr. Hui Yuan (“Mr. Yuan”). Mr. Yuan is the Chief Executive
Officer (the “CEO”) and Chairman of the Company and a recognized A1 industry key opinion leader and domain expert. As
a result of the Issuance, Mr. Yuan beneficially owns more than 79% of the voting power of the Company. Under the Nasdaq Global
Market (“Nasdaq”) listing rules, the Issuance resulted in a change in control and the Company became a controlled
company under those rules.
The Issuance was approved
by both the Board of the Directors and the Audit Committee of the Board of Directors (the “Board”). The Board acknowledges
the valuable contributions and expertise that Mr. Yuan brings to the Company as the driving force at the operational level and believes
his continued involvement is crucial for the stability, success and growth of the business of the Company. To ensure the continuity and
stability of the Company's operations and business model, the Board believes that the Issuance which gives Mr. Yuan de facto control of
the Company is in the best interest of the Company as a whole. The Issuance will not only preserve Mr. Yuan's commitment and involvement
but also ensure that operational and business decisions remain aligned with the current model to minimize any potential negative impact
from future changes in shareholding of the Company. This decision is motivated by the Board’s commitment to maintaining the expertise
and leadership of Mr. Yuan, as well as safeguarding the operations and business continuity of the Company.
In addition, the Company
has commissioned Beijing North Asia Asset Assessment Firm (“BNA”) an independent professional valuer, to value the market
price for the Issuance, which issued a valuation report dated October 17, 2023 (the “Report”). According to the Report, the
fair value for the 3.7 Million Preferred Shares is USD730.93 (in words, Seven Hundred Thirty Dollars and Ninety-Three Cents), equivalent
to USD 0.0001975 per share. Thus, the subscription price for the Issuance shall be USD730.93 in case (the “Subscription Price”).
The Company and ZunTian have entered a subscription agreement for the
subscription of 3.7 Million Preferred Shares by ZunTian (the “Subscription Agreement”) which is furnished herewith as Exhibit
99.1. According to the Subscription Agreement, 3.7 Million Preferred Shares have the following rights:
| (a) | each Preferred Share shall confer on the holder thereof the
right to twenty (20) votes and holders of the Preferred Shares shall at all times vote together with holders of ordinary shares of the
Company as one class on all resolutions submitted to a vote by the members of the Company save where a separate class meeting is required
by law; |
| (b) | the Preferred Shares shall not confer any additional rights or preferences regarding dividend entitlement
or liquidation preferences and shall rank pari passu with the ordinary shares of the Company in relation thereto; |
| (c) | the Preferred Shares shall be non-convertible, non-redeemable, and non-transferable, except as otherwise
resolved by the Board of Directors of the Company; and |
| (d) | for the avoidance of doubt, save and except for the rights, preference, privileges and restrictions set
out in (a) to (c) above, the Preferred Shares and the ordinary shares of the Company shall rank par passu in all other respects and shall
have the same rights, preferences, privileges and restrictions. |
The Issuance is subject
to the terms and conditions of the Subscription Agreement. The summaries in this report are not intended to be exhaustive descriptions
of the Issuance. Such summaries are qualified in their entirety by reference to the Subscription Agreement, which is incorporated herein
by reference.
As a company incorporated in the Cayman Islands
that is listed on Nasdaq, the Company is subject to Nasdaq corporate governance listing standards. Under Nasdaq rules, a foreign private
issuer may, in general, follow its home country corporate governance practices in lieu of some of the Nasdaq corporate governance requirements.
Pursuant to the home country rule exemption set forth under Nasdaq Listing Rule 5615(a)(3)(A), which provides (with certain exceptions
not relevant to the conclusions expressed herein) that a Foreign Private Issuer may follow its home country practice in lieu of the requirements
of the Nasdaq Marketplace Rule 5600 Series, the Company, in connection with the Issuance, elected to be exempt from the following Nasdaq
Marketplace Rules (1) Rule 5635(b) which sets forth that shareholder approval is required prior to the issuance of securities when the
issuance or potential issuance will result in a change of control of the Company, (2) Rule 5635(d) which sets forth the circumstances
under which shareholder approval is required prior to an issuance of securities, other than in a public offering, equal to 20% or more
of the voting power outstanding at a price less than the lower of: (x) the Nasdaq Official Closing Price (as reflected on Nasdaq.com)
immediately preceding the signing of the binding agreement; or (y) the average Nasdaq Official Closing Price of the common stock (as reflected
on Nasdaq.com) for the five trading days immediately preceding the signing of the binding agreement, and (3) Rule 5640 Voting Rights,
which states that “Nasdaq will accept any action or issuance relating to the voting rights structure of a non-U.S. Company . . .
that is not prohibited by the Company's home country law.” Conyers Dill & Pearman, the Company’s Cayman Islands legal
counsel, has provided a letter to the Nasdaq Stock Market confirming that, if the directors of the Company and the members of the Audit
Committee of the Board had acted for a proper purpose, the Issuance made in accordance with the currently effective articles of association
of the Company is not prohibited by Cayman Islands law.
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: December 14, 2023 |
Xiao-I Corporation |
|
|
|
By: |
/s/ Hui Yuan |
|
|
Name: |
Hui Yuan |
|
|
Title: |
Chief Executive Officer |
3
Exhibit
99.1
Subscription
Agreement
XIAO-I
CORPORATION
ZunTian
Holding Limited
Conyers
Dill & Pearman Cayman Islands
conyers.com
SUBSCRIPTION
AGREEMENT
THIS
AGREEMENT is dated 13
day of December 2023
BETWEEN:
| (1) | Xiao-I
Corporation, a company incorporated in the Cayman Islands having its registered office
at Sertus Chambers, Governors Square, Suite #5-204, 23 Lim Tree Bay Avenue, P.O. Box 2547,
Grand Cayman KY1-1104 (the “Company“); and |
| (2) | ZunTian
Holding Limited, a company incorporated in the British Virgin Islands having its registered
office at Sea Meadow House, P.O. Box 116, Road Town, Tortola, British Virgin Islands (the
“Subscriber“) of the other part. |
WHEREAS:
| (A) | As
at the date hereof, the authorised share capital of the Company is US$50,000 divided into
1,000,000,000 shares of a nominal or par value of US$0.00005 each, and the Company has 24,015,592
ordinary shares of US$0.00005 each in issue. Pursuant to the Written Resolutions, 3,700,000
Preferred Shares have been created in the authorised share capital of the Company. |
| (B) | The
Subscriber has agreed to subscribe for 3,700,000 Preferred Shares on and subject to the terms
of this Subscription Agreement. |
IT
IS HEREBY AGREED as follows:
| 1.1. | In
this Subscription Agreement, the following words and expressions shall have the following
meanings: |
“Articles” |
means
the amended and restated articles of association of the Company, in their present form or as supplemented or amended or substituted
from time to time; |
|
|
“Memorandum” |
means the amended
and restated memorandum of association of the Company, in their present form or as supplemented or amended or substituted from time
to time; |
|
|
“Parties” |
means the parties
to this Subscription Agreement and “Party” shall mean any one of them; |
|
|
“Preferred
Share” |
means a preferred
share in the share capital of the Company of US$0.00005 par value created by the Written Resolutions with the terms set out in Schedule
1; |
|
|
“Subscription
Agreement” |
means this subscription
agreement and includes all schedules thereto; and |
|
|
“Written
Resolutions” |
means in accordance
with the authority granted under Article 13(1) of the Articles, the written resolutions signed by all the directors of the Company
on December 8, 2023 approving, among other things, the creation of the Preferred Shares. |
SUBSCRIPTION
AGREEMENT
| 1.2. | In
this Subscription Agreement: |
| (a) | the
clause headings are included for convenience only and shall not affect the interpretation
of this Subscription Agreement; |
| (b) | the
singular includes the plural and vice versa; |
| (c) | any
gender includes the other genders; |
| 2. | Subscription
for PREFERRED Shares by Subscriber |
| 2.1. | The
Subscriber hereby subscribes for and requests that the Company allot to it the number of
Preferred Shares set opposite their name in Schedule 2 for the aggregate subscription price
set out in Schedule 2. |
| 2.2. | The
Subscriber shall pay the subscription price to the Company by a draft or wire transfer to
an account designated in writing by the Company. |
| 2.3. | Upon
receipt of the subscription price in cleared funds from the Subscriber, the Company shall
issue to the Subscriber the number of Preferred Shares subscribed for by the Subscriber. |
| 2.4. | Each
Preferred Share subscribed for pursuant to the foregoing clause shall be credited as fully
paid and on issue shall rank pari passu in all respects with other Preferred Shares
in issue. |
| 2.5. | The
Subscriber agrees to take the Preferred Shares subject to the Memorandum and the Articles,
and authorises the Company to enter its name and address as set forth in Schedule 2 in the
register of members of the Company. |
| 3. | Representations
and Warranties |
| 3.1. | Each
Party to this Subscription Agreement makes the following representations and warranties on
the date of this Subscription Agreement: |
| (a) | all
corporate authorisations and all other applicable governmental, statutory, regulatory or
other consents licences, authorisations, waivers or exemptions required to be obtained by
it in connection with the execution, delivery and performance of this Subscription Agreement
have been obtained and are valid and subsisting; |
| (b) | this
Subscription Agreement constitutes legal, valid and binding obligations of the Party; |
SUBSCRIPTION
AGREEMENT
| (c) | the
execution, delivery and performance by the Party of this Subscription Agreement does not
and will not violate, breach or result in a contravention of: |
| (ii) | any
authorisation, ruling consent, judgment, order or decree of any governmental, statutory or
regulatory agency; or |
| (iii) | the
memorandum of association and articles of association or any other similar constitutional
document of the Party; and |
| (iv) | all
information provided by the Party to the other Parties under or in connection with this Subscription
Agreement is true in all material respects and is not, by omission or otherwise, misleading
in any material respect. |
Each
Party shall pay its own costs relating to the negotiation, preparation, execution and implementation by it of this Subscription Agreement
and of each document referred to in it.
| 5.1. | This
Subscription Agreement constitutes the entire agreement and understanding of the Parties
and supersedes any previous agreement between the Parties relating to the subject matter
of this Subscription Agreement. |
| 5.2. | Each
of the Parties acknowledges and agrees that in entering into this Subscription Agreement
it does not rely on, and shall have no remedy in respect of, any statement, representation,
warranty or understanding (whether negligently or innocently made) of any person (whether
Party to this Subscription Agreement or not) other than as expressly set out in this Subscription
Agreement as a warranty. The only remedy available to it for breach of the warranties shall
be for breach of contract under the terms of this Subscription Agreement. Nothing in this
clause shall, however, operate to limit or exclude any liability for fraud. |
This
Subscription Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed an original,
and all the counterparts together shall constitute one and the same instrument.
No
variation of this Subscription Agreement shall be valid unless it is in writing and signed by or on behalf of each of the Parties.
SUBSCRIPTION
AGREEMENT
| 8. | Governing
Law and Jurisdiction |
The
terms and conditions of this Subscription Agreement and the rights of the Parties hereunder shall be governed by and construed in all
respects in accordance with the laws of the Cayman Islands. The Parties to this Subscription Agreement hereby irrevocably agree that
the courts of the Cayman Islands shall have exclusive jurisdiction in respect of any dispute, suit, action, arbitration or proceedings
("Proceedings") which may arise out of or in connection with this Subscription Agreement and waive any objection to
Proceedings in the courts of the Cayman Islands on the ground of venue or on the basis that the Proceedings have been brought in an inconvenient
forum.
AGREED
by the Parties through their authorised signatories on the date first written above:
For, and on behalf of Xiao-I
Corporation |
|
For, and on behalf of ZunTian
Holding Limited |
/s/ Hui Yuan |
|
/s/ Hui Yuan |
Signature |
|
Signature |
|
|
|
Hui Yuan, CEO |
|
Hui Yuan, President |
Print Name |
|
Print Name |
|
|
|
December 13, 2023 |
|
December 13, 2023 |
Date |
|
Date |
SUBSCRIPTION
AGREEMENT
SCHEDULE
1
Terms
of the Preferred Shares
The
Preferred Shares shall have the following rights and restrictions:
| (a) | each
Preferred Share shall confer on the holder thereof the right to twenty (20) votes and holders
of the Preferred Shares shall at all times vote together with holders of ordinary shares
of the Company as one class on all resolutions submitted to a vote by the shareholders of
the Company save where a separate class meeting is required by law; |
| (b) | the
Preferred Shares shall not confer any additional rights or preferences regarding dividend
entitlement or liquidation preferences and shall rank pari passu with the ordinary
shares of the Company in relation thereto; |
| (c) | the
Preferred Shares shall be non-convertible, non-redeemable, and non-transferable, except as
otherwise resolved by the board of directors of the Company; and |
| (d) | for
the avoidance of doubt, save and except for the rights, preference, privileges and restrictions
set out in (a) to (c) above, the Preferred Shares and the ordinary shares of the Company
shall rank par passu in all other respects and shall have the same rights, preferences, privileges
and restrictions as set out in the Memorandum and Articles. |
SUBSCRIPTION
AGREEMENT
SCHEDULE
2
Subscriber
name, address, number and subscription price of Preferred Shares
Subscriber |
Column
1
No. of Preferred Shares Subscribed For |
Column
2
Total Amount Payable (US$) |
ZunTian
Holding Limited
Sea
Meadow House, P.O. Box 116, Road Town, Tortola, British Virgin Islands
max@xiaoi.com
+86-021-64435203 |
3,700,000 |
US$730.93
(Seven
Hundred Thirty Dollars and Ninety-Three Cents)
|
conyers.com
| 7
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