Securities Registration: Employee Benefit Plan (s-8)
February 23 2017 - 4:48PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
SKYPEOPLE
FRUIT JUICE, INC.
(Exact
name of registrant as specified in its charter)
Florida
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98-0222013
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(State
or other jurisdiction of
incorporation or organization)
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(I.R.S.
Employer
Identification No.)
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16F,
National Development Bank,
Tower,
No. 2, Gaoxin 1st Road, Xi’an, PRC
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710075
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Skypeople
Fruit Juice, Inc.
Omnibus
Equity Plan
(Full
title of the plan)
Hongke
Xue
Chief
Executive Officer
16F,
National Development Bank
Tower,
No. 2, Gaoxin 1st Road
Xi’an,
PRC 710075
(Name
and address of agent for service)
86-29-88377161
(Telephone
number, including area code, of agent for service)
Copies
to:
Jeffrey
Li
Peter
B. Cancelmo
Chelsea
Anderson
Garvey
Schubert Barer
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, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer
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☐
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Accelerated
filer
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☐
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Non-accelerated
filer (Do not check if a smaller reporting company)
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☐
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Smaller
reporting company
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☒
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CALCULATION
OF REGISTRATION FEE
Title of securities
to be registered
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Amount
to
be registered (1)
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Proposed
maximum
offering
price per share (2)
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Proposed
maximum
aggregate
offering price (2)
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Amount
of
registration
fee
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Common Stock, par value $0.001 per share
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250,000
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U.S. $5.91
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U.S. $1,477,500
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U.S. $171.24
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(1)
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SkyPeople
Fruit Juice, Inc., a Florida corporation (the “Company” or “SkyPeople”), is registering 250,000 shares
of Common Stock pursuant to the SkyPeople Fruit Juice, Inc. Omnibus Equity Plan (the “Plan”), which such amount
was adjusted by the Plan’s administrative committee, the Company’s Compensation Committee, from 2,000,000 shares
following the Company’s 1-for-8 reverse stock split effective as of March 16, 2016. 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.
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(2)
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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 February 21, 2017, a date within five
business days of the filing date.
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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:
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1.
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The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015;
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2.
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The
Company’s Quarterly Reports on Form 10-Q for the quarters ended September 30, 2016; June 30, 2016; and March 31, 2016;
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3.
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The
Company’s Current Reports on Form 8-K filed on December 30, 2016; November 23, 2016; October 14, 2016; September 23,
2016; September 9, 2016; August 19, 2016; August 1, 2016; June 21, 2016; May 27, 2016; May 19, 2016; April 22, 2016; April
15, 2016; April 5, 2016; March 16, 2016 and March 15, 2016; and
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4.
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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.
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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.
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:
Skypeople
Fruit Juice, Inc.
16F,
National Development Bank Tower
No.2,
Gaoxin 1st RD
Xi’an,
Shaanxi, China, 710075
Tel:86-29-88377161
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
Amended and Restated Articles of Incorporation, as amended, and 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.
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:
Exhibit
No.
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Description
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4.1
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Amended
and Restated Articles of Incorporation of the Registrant. Incorporated by reference to Exhibit 3.2 to our Current Report on
Form 8-K filed with the Commission on March 3, 2008.
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4.2
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Articles
of Amendment to Articles of Incorporation dated October 28, 2009. Incorporated by reference to Exhibit 3.1 to our Current
Report on Form 8-K filed with the Commission on October 29, 2009.
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4.3
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Certificate
of Designations, Preferences and Rights of the Registrant’s Series A Convertible Preferred Stock. Incorporated by reference
to Exhibit 3.1 to the February 28, 2008 8-K.
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4.4
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Certificate
of Designations, Preferences, Rights and Limitations of the Registrant’s Series B Convertible Preferred Stock. Incorporated
by reference to Exhibit 3.2 to the February 28, 2008 8-K.
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4.5
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Bylaws
of Entech, Inc. Incorporated by reference to Exhibit 3.5 to the March 3, 2008 8-K.
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4.6
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Articles
of Amendment to the Articles of Incorporation of the Registrant filed with the Department of State of Florida on May
23, 2008. Incorporated by reference to Exhibit 3.6 to our Annual Report on Form 10-K for the year ended December 31, 2008.
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4.7
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Amendment
of Article VII of the Bylaws. Incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed with the Commission
on July 14, 2011.
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4.8
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Bylaws
of SkyPeople Juice, Inc. Incorporated by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q filed with the
Commission on August 15, 2011.
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4.9
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Articles
of Amendment to Articles of Incorporation dated March 10, 2016. Incorporated by reference to Exhibit 3.1 to our
Current Report on Form 8-K filed with the Commission on March 15, 2016.
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4.10
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SkyPeople
Fruit Juice, Inc. Omnibus Equity Plan. Incorporated by reference to Appendix A to our Definitive Proxy Statement
for the Annual Meeting of Shareholders held on November 19, 2015.
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5.1
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Opinion
of Garvey Schubert Barer*
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23.1
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Consent
of Armanino LLP*
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23.2
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Consent
of Jia Roger Qian Wang*
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23.3
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Consent
of Garvey Schubert Barer (included in its opinion filed as Exhibit 5.1 hereto).
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24.1
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Powers
of Attorney (see signature pages to this registration statement)
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*
Filed herewith.
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.
SIGNATURES
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 February
23, 2017.
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Skypeople
Fruit Juice, Inc.
(Registrant)
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By:
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/s/
Hongke Xue
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Hongke
Xue
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Chief
Executive Officer and
Chairman of the Board of Directors
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POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below appoints Hongke 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 February , 2017.
Name
and Title
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Date
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/s/
Yongke Xue
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Yongke
Xue, Director
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February
23, 2017
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/s/
Hanjun Zheng
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Hanjun
Zheng,
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February
23, 2017
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Interim
Chief Financial Officer
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(principal
financial officer and accounting officer)
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/s/
Hongke Xue
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Hongke
Xue,
Chairman
of the Board of Directors and
Chief
Executive Officer (principal executive officer)
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February
23, 2017
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/s/
Guolin Wang
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Guolin
Wang, Director
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February
23, 2017
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/s/
Johnson Lau
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Johnson
Lau, Director
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February
23, 2017
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/s/
Fuyou Li
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Fuyou
Li, Director
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February
23, 2017
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INDEX
TO EXHIBITS
Exhibit
No.
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Description
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4.1
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Amended
and Restated Articles of Incorporation of the Registrant. Incorporated by reference to Exhibit 3.2 to our Current Report on
Form 8-K filed with the Commission on March 3, 2008.
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4.2
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Articles
of Amendment to Articles of Incorporation dated October 28, 2009. Incorporated by reference to Exhibit 3.1 to our Current
Report on Form 8-K filed with the Commission on October 29, 2009.
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4.3
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Certificate
of Designations, Preferences and Rights of the Registrant’s Series A Convertible Preferred Stock. Incorporated by reference
to Exhibit 3.1 to the February 28, 2008 8-K.
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4.4
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Certificate
of Designations, Preferences, Rights and Limitations of the Registrant’s Series B Convertible Preferred Stock. Incorporated
by reference to Exhibit 3.2 to the February 28, 2008 8-K.
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4.5
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Bylaws
of Entech, Inc. Incorporated by reference to Exhibit 3.5 to the March 3, 2008 8-K.
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4.6
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Articles
of Amendment to the Articles of Incorporation of the Registrant filed with the Department of State of Florida on May
23, 2008. Incorporated by reference to Exhibit 3.6 to our Annual Report on Form 10-K for the year ended December 31, 2008.
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4.7
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Amendment
of Article VII of the Bylaws. Incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed with the Commission
on July 14, 2011.
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4.8
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Bylaws
of SkyPeople Juice, Inc. Incorporated by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q filed with the
Commission on August 15, 2011.
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4.9
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Articles
of Amendment to Articles of Incorporation dated March 10, 2016. Incorporated by reference to Exhibit 3.1 to our
Current Report on Form 8-K filed with the Commission on March 15, 2016.
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4.10
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SkyPeople
Fruit Juice, Inc. Omnibus Equity Plan. Incorporated by reference to Appendix A to our Definitive Proxy Statement
for the Annual Meeting of Shareholders held on November 19, 2015.
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5.1
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Opinion
of Garvey Schubert Barer*
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23.1
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Consent
of Armanino LLP*
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23.2
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Consent
of Jia Roger Qian Wang*
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23.3
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Consent
of Garvey Schubert Barer (included in its opinion filed as Exhibit 5.1 hereto).
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24.1
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Powers
of Attorney (see signature pages to this registration statement)
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*
Filed herewith.
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