UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act 1934
Date of Report (date of earliest event reported): October 30, 2019
IWeb Inc.
(Exact Name of Registrant as Specified in its Charter)
| Nevada | 333-205835 | 83-0549737 | ||
| (State of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
121/34, RS Tower, 8th Floor
Ratchadaphisek Road, Din Daeng Sub-district, din Daeng District,
Bangkok, Thailand
(Address of principal executive offices)
+662-248-2436
(Registrant's telephone number, including area code)
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 (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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. ¨
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) |
Name of each exchange
on which registered |
||
| None | N/A | N/A |
Item 1.01 Entry into a Material Definitive Agreement
On October 30, 2019, One Belt One Network Holdings Limited, a British Virgin Island company (the “OBON BVI”) and 70% owned subsidiary of IWEB, Inc. (the “Company”), OBON Corporation Company Limited, a Thailand Company (“OBON Thailand”) and Chanikarn Lertchawalitanon, a Thai citizen, a shareholder of the Company, and a 91% shareholder of OBON Thailand, entered into the following agreements, or collectively, the “Variable Interest Entity” or “VIE Agreements”. OBON Thailand was established as our VIE for our business expansion and development in Thailand, which imposes certain restrictions on foreign invested companies.
The VIE Agreements with Chanikarn Lertchawalitanon are as follows:
1) An Exclusive Purchase Option Agreement by and among OBON BVI, OBON Thailand and Chanikarn Lertchawalitanon. Pursuant to the Exclusive Purchase Option Agreement, Chanikarn Lertchawalitanon granted to OBON BVI and any party designated by OBON BVI the exclusive right to purchase at any time during the term of this agreement all or part of her equity interests in OBON Thailand, or the “Equity Interests,” at a purchase price equal to the registered capital paid by Chanikarn Lertchawalitanon for the Equity Interests, or, in the event that applicable law requires an appraisal of the Equity Interests, the lowest price permitted under applicable law. Pursuant to a power of attorney executed by Chanikarn Lertchawalitanon, she irrevocably authorized any person appointed by OBON BVI to exercise all shareholder rights, including but not limited to voting on her behalf on all matters requiring approval of OBON Thailand’s shareholder, disposing of all or part of the shareholder's equity interest in OBON Thailand, and electing, appointing or removing directors and executive officers. The person designated by OBON BVI is entitled to dispose of dividends and profits on the equity interest without reliance on any oral or written instructions of Chanikarn Lertchawalitanon. The power of attorney will remain in force for so long as Chanikarn Lertchawalitanon remains the shareholder of OBON Thailand. Chanikarn Lertchawalitanon has waived all the rights which have been authorized to OBON BVI’s designated person under power of attorney.
2) An Equity Pledge Agreement by and among OBON BVI, OBON Thailand and Chanikarn Lertchawalitanon. Pursuant to the Equity Pledge Agreement, Chanikarn Lertchawalitanon pledged all of the Equity Interests to OBON BVI to secure the full and complete performance of the obligations and liabilities on the part of OBON Thailand and her under this and the above contractual arrangements. If OBON Thailand or Chanikarn Lertchawalitanon breaches their contractual obligations under these agreements, then OBON BVI, as pledgee, will have the right to dispose of the pledged equity interests. Chanikarn Lertchawalitanon agrees that, during the term of the Equity Pledge Agreement, she will not dispose of the pledged equity interests or create or allow any encumbrance on the pledged equity interests, and she also agrees that OBON BVI’s rights relating to the equity pledge should not be prejudiced by the legal actions of the shareholder of OBON Thailand, her successors or designees. During the term of the equity pledge, OBON BVI has the right to receive all of the dividends and profits distributed on the pledged equity. The Equity Pledge Agreement will terminate on the second anniversary of the date when OBON Thailand and Chanikarn Lertchawalitanon have completed all their obligations under the contractual agreements described above.
On October 30, 2019, OBON BVI, OBON Thailand and Wanee Watcharakangka, a Thai citizen and a 0.09% shareholder of OBON Thailand, entered into the VIE Agreements.
The VIE Agreements with Wanee Watcharakangka are as follows:
1) An Exclusive Purchase Option Agreement by and among OBON BVI, OBON Thailand and Wanee Watcharakangka. Pursuant to the Exclusive Purchase Option Agreement, Wanee Watcharakangka granted to OBON BVI and any party designated by OBON BVI the exclusive right to purchase at any time during the term of this agreement all or part of his equity interests in OBON Thailand, or the “Equity Interests,” at a purchase price equal to the registered capital paid by Wanee Watcharakangka for the Equity Interests, or, in the event that applicable law requires an appraisal of the Equity Interests, the lowest price permitted under applicable law. Pursuant to a power of attorney executed by Wanee Watcharakangka, he irrevocably authorized any person appointed by OBON BVI to exercise all shareholder rights, including but not limited to voting on his behalf on all matters requiring approval of OBON Thailand’s shareholder, disposing of all or part of the shareholder's equity interest in OBON Thailand, and electing, appointing or removing directors and executive officers. The person designated by OBON BVI is entitled to dispose of dividends and profits on the equity interest without reliance on any oral or written instructions of Wanee Watcharakangka. The power of attorney will remain in force for so long as Wanee Watcharakangka remains the shareholder of OBON Thailand. Wanee Watcharakangka has waived all the rights which have been authorized to OBON BVI’s designated person under power of attorney.
2) An Equity Pledge Agreement by and among OBON BVI, OBON Thailand and Wanee Watcharakangka. Pursuant to the Equity Pledge Agreement, Wanee Watcharakangka pledged all of the Equity Interests to OBON BVI to secure the full and complete performance of the obligations and liabilities on the part of OBON Thailand and him under this and the above contractual arrangements. If OBON Thailand or Wanee Watcharakangka breaches their contractual obligations under these agreements, then OBON BVI, as pledgee, will have the right to dispose of the pledged equity interests. Wanee Watcharakangka agrees that, during the term of the Equity Pledge Agreement, he will not dispose of the pledged equity interests or create or allow any encumbrance on the pledged equity interests, and he also agrees that OBON BVI’s rights relating to the equity pledge should not be prejudiced by the legal actions of the shareholder of OBON Thailand, his successors or designees. During the term of the equity pledge, OBON BVI has the right to receive all of the dividends and profits distributed on the pledged equity. The Equity Pledge Agreement will terminate on the second anniversary of the date when OBON Thailand and Wanee Watcharakangka have completed all their obligations under the contractual agreements described above.
On October 30, 2019, OBON BVI, OBON Thailand and Ratanaphon Wongnapachant, a Thai citizen, a major shareholder of the Company, our Chairman and Chief Executive Officer, entered into the Amendment to Exclusive Purchase Option Agreement and Amendment to Equity Pledge Agreement to correct the number and percentage of the shares owned by Mr. Ratanaphon Wongnapachant in OBON Thailand. OBON BVI, OBON Thailand and Ratanaphon Wongnapachant entered into Exclusive Purchase Option Agreement and Equity Pledge Agreement on June 4, 2019, which were disclosed in the Form 8-K filed with SEC on June 10, 2019 and amended on October 30, 2019.
The Exclusive Purchase Option Agreement with Chanikarn Lertchawalitanon, the Equity Pledge Agreement with Chanikarn Lertchawalitanon, the Exclusive Purchase Option Agreement with Wanee Watcharakangka, the Equity Pledge Agreement with Wanee Watcharakangka, the Amendment to Exclusive Purchase Option Agreement with Ratanaphon Wongnapachant and the Amendment to Equity Pledge Agreement with Ratanaphon Wongnapachant (collectively, the “Agreements”) are filed as Exhibits 10.1, 10.2, 10.3, 10.4, 10.5 and 10.6 to this Current Report on Form 8-K. The foregoing summary of the terms of the Agreements is subject to, and qualified in its entirety by the Agreements, which are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
| (d) | Exhibits |
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 hereunto duly authorized.
| IWeb, Inc. | |||
| Date: November 1, 2019 | By: | /s/ Wai Hok Fung | |
| Wai Hok Fung | |||
| President | |||
Exhibit 10.1
EXCLUSIVE PURCHASE OPTION AGREEMENT
This EXCLUSIVE PURCHASE OPTION AGREEMENT (this “Agreement”), dated October 30, 2019, is made by and among:
Party A: One Belt One Network Holdings Limited, with registered address at Vistra Corporate Service Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands, VG1110; and
| Party B: | Chanikarn Lertchawalitanon, at 150 Burapaphirom, Phra Nakom, Bangkok, Thailand; and |
Party C: OBON Corporation Company Limited, with registered address at 121/34, Ratchadaphisek Road, Din Daeng Sub-district, din Daeng District, Bangkok, Thailand.
Party A, Party B and Party C individually being referred to as a “Party” and collectively the “Parties”
Whereas,
| 1. | Party C is a company duly incorporated and validly existing under the laws of Thailand. Party B owns 1,001,000 shares of Party C, which is 91 % of the outstanding and issued shares of Party C as of the date of this Agreement; and |
| 2. | Party A and Party B have made an Equity Pledge Agreement (the “Equity Pledge Agreement”) dated October 30, 2019. |
NOW, THEREFORE, the Parties hereby agree as follows through negotiations:
| 1. | Purchase and Sale of Equity Interests |
| 1.1 | Grant of Right |
Party B hereby exclusively and irrevocably grants Party A an exclusive option to purchase or designate one or several person(s) (the “Designated Person”) to purchase all or any part of the equity interests held by Party B in Party C (the “Purchase Option”) at any time from Party B at the price specified in Article 1.3 of this Agreement in accordance with the procedures determined by Party A at its own discretion and to the extent permitted by the laws of Thailand. No party other than Party A and the Designated Person may have the Purchase Option. Party C hereby consents and agrees to the grant by Party B of the Purchase Option to Party A. For purpose of this Section 1.1 and this Agreement, “person” means any individual, corporation, joint venture, partnership, enterprise, trust or non-corporation organization.
| 1.2 | Procedures |
Party A may exercise the Purchase Option subject to its compliance with the laws and applicable regulations of Thailand. Upon exercising the Purchase Option, Party A will issue a written notice (the “Equity Interest Purchase Notice”) to Party B which notice will specify: (i) Party A’s decision to exercise the Purchase Option; (ii) the percentage of equity interest to be purchased from Party B (the “Purchased Equity Interest”); (iii) the date of purchase/equity interest transfer, and (iv) and the purchase price.
| 1.3 | Purchase Price |
1.3.1. When Party A exercises the Purchase Option, the purchase price of the Purchased Equity Interest (“Purchase Price”) shall be equal to the registered capital paid by Party B for the Purchased Equity Interest, unless applicable laws and regulations require appraisal of the Purchased Equity Interest or any other restriction on the Purchase Price.
1.3.2. If applicable laws require appraisal of the Purchased Equity Interest or any other restrictions on the Purchase Price in connection with exercise of the Purchase Option by Parties A, Party A and Party B agree that the Purchase Price of the Purchased Equity Interest shall be the lowest price permissible under applicable laws.
| 1.4 | Transfer of the Purchased Equity Interest |
When Party A exercises the Purchase Option:
1.4.1. Party B shall cause Party C to promptly convene a shareholders’ meeting or through written consent, during which a resolution shall be adopted to approve transfer of the equity interest to Party A and/or the Designated Person;
1.4.2. Party B shall enter into an equity interest transfer agreement with Party A and/or the Designated Person pursuant to the terms and conditions of this Agreement and the Purchase Notice;
1.4.3. The Parties shall execute all other contracts, agreements or documents, obtain all governmental approvals and consents, and conduct all actions that are necessary to transfer the ownership of the Purchased Equity Interest to Party A and/or the Designated Person free from any security interest and cause Party A and/or the Designated Person to be registered as the owner of the Purchased Equity Interest. For the purpose of this Section 1.4.3 and this Agreement, “Security Interest” includes guarantees, mortgages, pledges, third-party rights or interests, any purchase option, right of acquisition, right of first refusal, right of set-off, ownership detainment or other security arrangements, but excludes any security interest arising from this Agreement or the Equity Pledge Agreement.
1.4.4. Party B and Party C shall unconditionally use its best efforts to assist Party A in obtaining the governmental approvals, permits, registrations, filings and complete all formalities necessary for the transfer of the Purchased Equity Interest.
| 2. | Covenants regarding the Equity Interest |
| 2.1 | Party C hereby covenants that: |
2.1.1 Without prior written consent by Party A, it will not supplement, change or amend the Articles of Association, increase or decrease the registered capital, or otherwise change the registered capital structure of Party C;
2.1.2 It will maintain due existence of Party C, prudently and effectively operate and handle its business in accordance with fair financial and business standards and customs;
2.1.3 Without prior written consent of Party A, it will not sell, transfer, pledge or otherwise dispose any legal or beneficial interest of any assets, businesses or income of Party C, or permit existence of such security interest;
2.1.4 Without prior written consent by Party A, it will not incur, inherit, guarantee or allow the existence of any debt, except for (i) any debt incurred during its ordinary course of business rather than from borrowing; and (ii) any debt which has been disclosed to and obtained the written consent from Party A;
2.1.5 It will always conduct business operations in the ordinary course to maintain its asset value, and refrain from any action/omission that may adversely affect its business operations and asset value;
2.1.6 Without prior written consent by Party A, not to enter into any material agreement other than those executed in its ordinary course of business (for purpose of this Section 2.1.6, a material agreement means any agreement with a contact value exceeding 50,000 Baht.
2.1.7 Without prior written consent by Party A, it will not provide any loan or guaranty to any person;
2.1.8 Upon Party A’s request, it will provide Party A with information regarding its operations and financial conditions;
2.1.9 It will buy and maintain requisite insurance policies from an insurer acceptable to Party A, the amount and type of which will be the same with those maintained by the companies having similar operations, properties or assets in the same region;
2.1.10 Without prior written consent by Party A, it will not combine, merge with, acquire or make investment to any person;
2.1.11 It will immediately notify Party A of any actual or potential litigation, arbitration or administrative proceeding regarding its assets, business and income;
2.1.12 In order to keep its ownership of the equity interest of Party C, it will execute all requisite or appropriate documents, conduct all requisite or appropriate actions, and make all requisite or appropriate claims, or make requisite or appropriate defense against all claims; and
2.1.13 Without prior written consent by Party A, it will not distribute any dividend or bonus to any of its shareholders.
| 2.2 | Party B hereby covenants that: |
2.2.1 Without prior written consent by Party A, it will not supplement, change or amend the Articles of Association, increase or decrease the registered capital, or otherwise change the registered capital structure of Party C;
2.2.2 Without the prior written consent by Party A, it will not sell, transfer, pledge or otherwise dispose any legal or beneficial interest of the equity interests of Party C held by it, or allow other security interests to be created on it, except for the pledge set upon Party C’s equity interests held by Party B pursuant to the Equity Pledge Agreement;
2.2.3 It will procure that without prior written consent by Party A, no resolution be made at any meeting of Party C’s shareholders to approve Party C to sell, transfer, pledge or otherwise dispose any legal or beneficial interest of the equity interests of Party C held by it, or allow other security interests to be created on it, except for the pledge set upon Party C’s equity interests held by Party B pursuant to the Equity Pledge Agreement;
2.2.4 It will procure that without prior written consent by Party A, no resolution be made at any meeting of Party C’s shareholders to approve merger, consolidation, purchase or investment with or any person by Party C;
2.2.5 It will immediately notify Party A of any actual or potential litigation, arbitration or administrative proceeding regarding its assets, business and income;
2.2.6 It will cause Party C’s shareholders’ meeting to vote for the transfer of the Purchased Equity Interest provided hereunder;
2.2.7 In order to keep its ownership of the equity interests of Party C, it will execute all requisite or appropriate documents, conduct all requisite or appropriate actions, and make all requisite or appropriate claims, or make requisite or appropriate defense against all claims;
2.2.8 At the request of Party A, it will appoint any person nominated by Party A to the board of Party C;
2.2.9 At the request of Party A at any time, it will transfer unconditionally and immediately the Purchased Equity Interest to Party A or any Designated Person. If the equity interest of Party C could by sold or transferred to any party other than Party A or the Designated Person, Party B may not waive its right of first refusal without Party A’s consent;
2.2.10 It will strictly comply with the provisions of this Agreement and other agreements executed by Party B, duly perform all obligations under such agreements, and will not make any act or omission which may affect the validity and enforceability of these agreements; and
| 2.3 | Party A hereby covenants that: |
To satisfy the cash flow requirements with regard to the business operations of Party C or make up Party C’s losses accrued through such operations, Party A agrees that it shall, through itself or its designated person, provide financial support to Party C.
| 3. | Representations and Warranties |
Each of Party B and Party C represents and warrants, jointly and severally, to Party A that as of the date of this Agreement:
3.1 It has the rights and powers to execute and deliver this Agreement and any equity interest transfer agreement (the “Transfer Agreement”) executed for each transfer of the Purchased Equity Interest contemplated hereunder to which it is a party, and perform its obligations under this Agreement and any Transfer Agreement. Once executed, this Agreement and the Transfer Agreement to which it is a party will be its legal, valid and binding obligations and enforceable against it according to the terms of this Agreement and the Transfer Agreement.
3.2 None of its execution, delivery and performance of this Agreement or any Transfer Agreement will: (i) breach any applicable laws; (ii) conflict with its memorandum of association or any other organizational documents; (iii) breach any agreement or document to which it is a party or binding upon it, or constitute breach of any such agreement or document; (iv) breach any condition on which basis any of its permits or approvals is granted and/or will continue to be effective; or (v) cause any of its permits or approvals to be suspended, cancelled or imposed with additional conditions.
3.3 Party B has good and entire ownership of and creates no security interest or encumbrance upon any of his assets and/or equity interests of the Party C.
3.4 Party C has no outstanding debt, except for those (i) incurred during its ordinary course of business, and (ii) disclosed to and approved in writing by Party A.
3.5 Party C is in compliance with all applicable laws and regulations.
| 4. | Effectiveness and Term |
4.1 This Agreement shall be effective as of the date of its execution.
4.2 The term of this Agreement is ten (10) years. This Agreement may be extended for another ten (10) years upon Party A’s written confirmation prior to the expiration of this Agreement, and so forth thereafter.
4.3 During the term provided in Section 4.2, if Party A or Party C is terminated at expiration of their respective operation term (including any extension of such term) or by any other reason, this Agreement shall be terminated upon such termination.
| 5. | Termination |
5.1 At any time during the term of this Agreement and any extended term hereof, if Party A cannot exercise the Purchase Option pursuant to Section 1 due to then applicable laws, Party A can, at its own discretion, unconditionally terminate this Agreement by issuing a written notice to Party B without any liability.
5.2 If Party C is terminated due to bankruptcy, dissolution or being ordered to close down by the laws during the term of this Agreement and its extension period,, the obligations of Party B hereunder shall be terminated upon the termination of Party C; notwithstanding anything to the contrary, Party B shall immediately repay the principal and any interest accrued thereupon under any loan agreement between the Party A and Party B.
5.3 Except under circumstances indicated in Section 5.2, Party B may not unilaterally terminate this Agreement at any time during the term and extension periods of this Agreement without Party A’s written consent.
| 6. | Taxes and Expenses |
Each Party shall bear any and all taxes, costs and expenses related to transfer and registration as required by the laws of Thailand incurred by or imposed on such Party arising from the preparation and execution of this Agreement and the consummation of the transaction contemplated hereunder.
| 7. | Breach of Contract |
7.1 If either Party (“Defaulting Party”) breaches any provision of this Agreement, which causes damage to other Parties (“Non-defaulting Party”), the Non-defaulting Party could notify the Defaulting Party in writing and request it to rectify and correct such breach of contract; if the Defaulting Party fails to take any action satisfactory to the Non-defaulting Party to rectify and correct such breach within fifteen (15) days upon the issuance of the written notice by the Non-defaulting Party, the Non-defaulting Party may take the actions pursuant to this Agreement or take other remedies in accordance with the laws.
7.2 The following events shall constitute a default by Party B:
| (1) | Party B breaches any provision of this Agreement, or any representation or warranty made Party B under this Agreement is untrue or proves inaccurate in any material aspect; |
| (2) | Party B assigns or otherwise transfers or disposes of any of its rights under this Agreement without the prior written consent by Party A; or |
| (3) | Any breaches by Party B which renders this Agreement and the Equity Pledge Agreement unenforceable. |
7.3 Should a breach of contract by Party B or violation by Party B of the Equity Pledge Agreement occur, Party A may request Party B to immediately transfer all or any part of the Purchased Equity Interests to Party A or the Designated Person pursuant to this Agreement; and
| 8. | Notices |
Notices or other communications required to be given by any Party pursuant to this Agreement shall be made in writing and delivered personally or sent by mail or facsimile transmission to the addresses of the other Parties set forth below or other designated addresses notified by such other Parties to such Party from time to time. The date when the notice is deemed to be duly served shall be determined as the follows: (a) a notice delivered personally is deemed duly served upon the delivery; (b) a notice sent by mail is deemed duly served on the seventh (7th) day after the date when the air registered mail with postage prepaid has been sent out (as is shown on the postmark), or the fourth (4th) day after the delivery date to the internationally recognized courier service agency; and (c) a notice sent by facsimile transmission is deemed duly served upon the receipt time as is shown on the transmission confirmation of relevant documents.
If to Party A: One Belt One Network Holdings Limited
Address: Vistra Corporate Service Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands, VG1110
Attention: Ratanaphon Wongnapachant
Fax:
If to Party B: Chanikarn Lertchawalitanon
Address: 150 Burapaphirom, Phra Nakom
Bangkok, Thailand
Fax:
If to Party C: OBON Corporation Company Limited
Address: 121/34, RS Tower, 8th Floor, Ratchadaphisek Road, Din Daeng Sub-district, din Daeng District, Bangkok, Thailand
Attention: Ratanaphon Wongnapachant
Fax: +662 0402455
| 9. | Applicable Law and Dispute Resolution |
9.1 The formation, validity, performance and interpretation of this Agreement and the disputes resolution under this Agreement shall be governed by the laws of Thailand.
9.2 The Parties shall strive to settle any dispute arising from or in connection with this Agreement through friendly consultation. In case no settlement can be reached through consultation within thirty (30) days after the request for consultation is made by any Party, any Party can submit such matter to The Thai Arbitration Institute Office of The Judiciary, Ministry of Justice for arbitration in accordance with its then effective rules. The arbitration shall take place in Bangkok. The arbitration award shall be final and binding upon all the Parties.
| 10. | Confidentiality |
All Parties acknowledge and confirm that any oral or written materials exchanged by and between the Parties in connection with this Agreement are confidential. All Parties shall keep in confidence all such information and not disclose it to any third party without prior written consent from other Parties unless: (a) such information is known or will be known by the public (except by disclosure of the receiving party without authorization); (b) such information is required to be disclosed in accordance with applicable laws or rules or regulations; or (c) if any information is required to be disclosed by any party to its legal or financial advisor for the purpose of the transaction of this Agreement, such legal or financial advisor shall also comply with the confidentiality obligation similar to that stated hereof. Any disclosure by any employee or agency engaged by any Party shall be deemed the disclosure of such Party and such Party shall assume the liabilities for its breach of contract pursuant to this Agreement. This Article shall survive expiration or termination of this Agreement.
| 11. | Miscellaneous |
11.1 The headings contained in this Agreement are for the convenience of reference only and shall not be used to interpret, explain or otherwise affect the meaning of the provisions of this Agreement.
11.2 The Parties agree to promptly execute any document and take any other action reasonably necessary or advisable to perform provisions and purpose of this Agreement.
11.3 The Parties confirm that this Agreement shall, upon its effectiveness, constitute the entire agreement and common understanding of the Parties with respect to the subject matters herein and fully supersede all prior verbal and/or written agreements and understandings with respect to the subject matters herein.
11.4 The Parties may amend and supplement this Agreement in writing. Any amendment and/or supplement to this Agreement by the Parties is an integral part of and has the same effect with this Agreement
11.5 This Agreement shall be binding upon and for the benefit of all the Parties hereto and their respective inheritors, successors and the permitted assigns.
11.6 Any Party’s failure to exercise the rights under this Agreement in time shall not be deemed as its waiver of such rights and would not affect its future exercise of such rights.
11.7 If any provision of this Agreement is held void, invalid or unenforceable by a court of competent jurisdiction, governmental agency or arbitration authority, the validity, legality and enforceability of the other provisions hereof shall not be affected or impaired in any way. The Parties shall cease performing such void, invalid or unenforceable provisions and revise such void, invalid or unenforceable provisions only to the extent closest to the original intention thereof to recover its validity or enforceability for such specific facts and circumstances.
11.8 Unless with prior written consent from Party A, none of Party B or Party C may assign any of its rights and obligations under this Agreement to any third party.
11.9 This Agreement is made in (3) originals with each Party holding one (1) original.
[Remainder of Page Left Blank]
(Signature Page to Exclusive Purchase Option Agreement)
IN WITNESS THEREOF, each Party has signed or caused its authorized representative to sign this Agreement as of the date first written above.
| Party A: One Belt One Network Holdings Limited | |||
| /s/ Wai Hok Fung | [Seal] | ||
| By: | Wai Hok Fung | ||
| Director | |||
| Party B: Chanikarn Lertchawalitanon | |||
| /s/ Chanikarn Lertchawalitanon | |||
| By: | Chanikarn Lertchawalitanon | ||
| Party C: OBON Corporation Company Limited | |||
| /s/ Ratanaphon Wongnapachant | [Seal] | ||
| By: | Ratanaphon Wongnapachant | ||
| Director | |||
Exhibit 10.2
Equity Pledge Agreement
This EQUITY PLEDGE AGREEMENT, (this “Agreement”), dated October 30, 2019, is made by and among:
| Party A: | One Belt One Network Holdings Limited, with registered address at Vistra Corporate Service Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands, VG1110; and |
| Party B: | Chanikarn Lertchawalitanon, at 150 Burapaphirom, Phra Nakom, Bangkok, Thailand |
| Party C: | OBON Corporation Company Limited, with registered address at 121/34, Ratchadaphisek Road, Din Daeng Sub-district, din Daeng District, Bangkok, Thailand. |
(Party B is referred to as “Pledgor” hereinafter; Party A is referred to as “Pledgee” hereinafter; and either the Pledgors or the Pledgee is individually referred to as a “Party” and collectively referred to as the “Parties”.)
Whereas,
| (1) | OBON Corporation Company Limited (“Thai Company”) is a company duly incorporated and validly existing under the laws of Thailand with the registered share capital of 11,000,000 Baht, divided into 1,100,000 shares as the date of this Agreement. |
| (2) | The Pledgor holds 1,001,000 shares of Thai Company (the “Shares”). |
| (3) | The Pledgee is a company duly incorporated and existing under the laws of the British Virgin Islands. |
| (4) | The Pledgee and Thai Company entered into an Exclusive Technology Consulting and Service Agreement (“Services Agreement”) on June 4, 2019. |
| (5) | The Pledgor and the Pledgee entered into an Exclusive Purchase Option Agreement on October 30, 2019 (“Exclusive Purchase Option Agreement”). In addition, the Pledgor delivered the Power of Attorney to the Pledgee on October 30, 2019 (“Power of Attorney”, together with the Services Agreement, and Exclusive Purchase Option Agreement, collectively referred as “Master Agreement”). |
| (6) | In order to secure the Pledgor’s performance of her obligations under this Agreement and the Master Agreement, and in order to ensure Thai Company to be able to perform its obligations under the Services Agreement, the Pledgor hereby pledges all the equity interests held by her in Thai Company as the guaranty for her and/or Thai Company’s performance of obligations under the Master Agreement. |
NOW, THEREFORE, the Parties hereby agree as follows through friendly negotiations:
| 1. | Definition |
Unless otherwise specified herein, the following words shall have the meanings as follows:
| 1.1 | Pledge Right: means the priority right the Pledgee owns, with respect to the proceedings arising from selling at a discount, auction of, or selling off the equity interests pledged by the Pledgor to the Pledgee. |
| 1.2 | Pledged Equity Interests: means all the equity interests duly held by the Pledgor in Thai Company, i.e. the Shares of Thai Company, as well as all the other rights created over it. |
| 1.3 | Term of Pledge: means the period of term specified in Article 3 hereof. |
| 1.4 | Event of Default: means any of the circumstances listed in Article 7 hereof. |
| 1.5 | Notice of Default: means any notice issued by the Pledgee to the Pledgors in accordance with this Agreement specifying an Event of Default. |
| 2. | Pledge Right and Scope of Guaranty |
| 2.1 | The Pledgor agrees to pledge all the Pledged Equity Interests to the Pledgee as the guaranty for her and/or Thai Company’s performance of all the obligations under the Master Agreement and all the liabilities of indemnification to the Pledgee which may arise due to the invalidity or cancellation of the Master Agreement. Thai Company agrees with such equity pledge arrangement. |
| 2.2 | The effect of guaranty under the Master Agreement will not be prejudiced by any amendment or change of the Master Agreement. The invalidity or cancellation of the Master Agreement does not impair the validity of this Agreement. In the event that the Master Agreement is deemed as invalid, or cancelled or revoked for any reason, the Pledgee is entitled to realized its pledge right in accordance with Article 8 hereof. |
| 3. | Creation and Term of Pledge |
| 3.1 | The Pledge Right hereunder shall be reflected on the register of shareholders and the capital contribution certificate in accordance with the form as attached to this Agreement. |
| 3.2 | The term of the Pledge Right is effective from the registration of pledge of equity interests with the Office of the central company and partnership Registration of the place where Thai Company is registered, till the day on which all the obligations under the Master Agreement are fully performed (“Term of Pledge”). |
| 3.3 | During the Term of Pledge, if the Pledgor and/or Thai Company fails to perform any obligation under or arising from the Master Agreement, the Pledgee has the right to dispose of the Pledge Right in accordance with Article 8 hereof. |
| 4. | Possession of Pledge Certificates |
| 4.1 | The Pledgor shall deliver the register of shareholders and capital contribution certificate of Thai Company which reflects the pledge of equity interests as mentioned in above Article 3 within three (3) business days upon the pledge is recorded on such documents, to the Pledgee for its possession , and the Pledgee is obligated to keep the received pledge documents. |
| 4.2 | The Pledgee is entitled to all the proceeds in cash including the dividends and all the other non-cash proceeds arising from the Pledge Equity Interests since October 30, 2019. |
| 5. | Representations and Warranties of the Pledgor |
| 5.1 | The Pledgor is the legal owner of Pledged Equity Interests. |
| 5.2 | Once the Pledgee intends to exercise the rights of the Pledgee under this Agreement anytime, it shall be protected from any interference from any other party. |
| 5.3 | The Pledgee has the right to dispose of or transfer the Pledge Right in the way as described hereunder. |
| 5.4 | The Pledgor has never created any other pledge right or any other third party right over the Pledged Equity Interests except towards the Pledgee. |
| 6. | Covenants from the Pledgors |
| 6.1 | During the term of this Agreement, the Pledgor covenants to the Pledgee as follows: |
| 6.1.1 | Without prior written consent of the Pledgee, the Pledgor should not transfer the Pledged Equity Interests, or create or allow creation of any new pledge or any other security upon the Pledged Equity Interests which may impair the rights and/or interest of the Pledgee, except for the transfer of equity interests to the Pledgee or the person designated by the Pledgee in accordance with the Exclusive Purchase Option Agreement. |
| 6.1.2 | The Pledgor shall abide by and exercise all the provisions of laws and regulations in relation to the pledge of rights, and shall present the Pledgee any and all notices, directions or suggestions issued by related competent authorities within two (2) days upon the receipt of such notices, directions or suggestions, and shall comply with such notices, directions or suggestions, or present its opposite opinions and representations regarding the above mentioned issues according to the reasonable request of the Pledgee or with the consent from the Pledgee; |
| 6.1.3 | The Pledgor shall give prompt notice to the Pledgee regarding any occurrence or received notice which may influence the equity interests or any part of the equity interests held by the Pledgor, or may change any warranties or obligations of the Pledgor under this Agreement or may influence the performance of obligations by the Pledgor hereunder. |
| 6.2 | The Pledgor agrees that, the right of the Pledgee to exercise of Pledge Right hereunder in accordance with this Agreement, shall not be interfered or impaired by any legal proceedings taken by the Pledgor, or the successor or designated person of the Pledgor or any other person. |
| 6.3 | The Pledgor warrants to the Pledgee that, in order to protect or consummate the guaranty provided by this Agreement regarding the performance of the Master Agreement, the Pledgor will faithfully sign, or cause any other party which is materially related to the Pledge Right to sign, any and all right certificates and deeds, and/or take, or cause any other party which is materially related to the Pledge Right to take, any and all actions, reasonably required by the Pledgee, and will facilitate the exercise of the rights and authorizations granted to the Pledgee under this Agreement, enter into any change to related equity certificate with the Pledgee or the Pledgee’s designated person (individual/legal person), and provide to the Pledgee any and all notices, orders and decisions as deemed necessary by the Pledgee. |
| 6.4 | The Pledgor undertakes to the Pledgee she will abide by and perform all representations, warranties and undertakings to protect the interests of the Pledgee. The Pledgor shall indemnify the Pledgee any and all losses suffered by the Pledgee due to the Pledgor’s failure or partial failure in performance of her representations, warranties or undertakings. |
| 6.5 | The Pledgor covenants to the Pledgee that she assumes several and joint liabilities with respect to the obligations hereunder. |
| 7. | Event of Default |
| 7.1 | Any of the following is deemed as an Event of Default: |
| 7.1.1 | Thai Company fails to perform its obligations under the Master Agreement; |
| 7.1.2 | Any representation or warranty of the Pledgor under this Agreement is substantially misleading or untrue, and/or the Pledgor breaches any of her representations and warranties under this Agreement; |
| 7.1.3 | The Pledgor breaches her covenants hereunder; |
| 7.1.4 | The Pledgor breaches any provision hereof; |
| 7.1.5 | Except that the Pledgor transfers the equity interests to the Pledgee or the Pledgee’s designated person in accordance with the Exclusive Purchase Option Agreement, the Pledgor waives the Pledged Equity Interests or transfers the Pledged Equity Interests without the written consent from the Pledgee; |
| 7.1.6 | Any external borrowings, guaranty, indemnification, undertakings or any other liabilities of the Pledgor (1) is required to be repaid or exercised early due to its default; or (2) is not repaid or exercised when due, which makes the Pledgee reasonably believes that the ability of the Pledgor to perform her obligations under this Agreement has been impaired. |
| 7.1.7 | The Pledgor fails to repay general debts or other liabilities; |
| 7.1.8 | This Agreement is deemed to be illegal with promulgation of related laws, or the Pledgor is unable to continue to perform her obligations hereunder; |
| 7.1.9 | The consent, permit, approval or authorization from the competent authorities for making this Agreement enforceable, legal or valid is revoked, suspended, invalidated or materially amended; |
| 7.1.10 | Adverse change occur with respect to the assets of the Pledgor, which makes the Pledgee reasonably believes that the ability of the Pledgor to perform her obligations under this Agreement has been impaired. |
| 7.1.11 | Successor of the Pledgor or Thai Company can only perform part of, or refuses to perform, its obligations under this Agreement. |
| 7.1.12 | Other circumstances occur which make the Pledgee unable to exercise or dispose of the Pledge Right in accordance with related laws. |
| 7.2 | In the event that the Pledgor is aware of or discover that any issue described in the above Article 7.1 or any other issue which may cause the occurrence of such mentioned issues has occurred, the Pledgor shall give a prompt written notice to the Pledgee. |
| 7.3 | Unless that the Event of Default specified in above Article 7.1 has been resolved to the satisfaction of the Pledgee, otherwise the Pledgee is entitled to (not obligated to) serve a Notice of Default to the Pledgor immediately following or any time after the occurrence of the Event of Default, to require the Pledgor and Thai Company to immediately perform its obligations under the Master Agreement (including without limitation to payment of the due and unpaid debts and other amounts payable under the Services Agreement) or dispose of the Pledge Right in accordance with Article 8 hereof. |
| 8. | Exercise of Pledge Right |
| 8.1 | Prior to the fully fulfillment of performance of the obligations under the Master Agreement, the Pledgor should not transfer the Pledged Equity Interests without the written consent of the Pledgee. |
| 8.2 | In the event of occurrence of the Event of Default described in above Article 7, the Pledgee shall give a Notice of Default to the Pledgor when exercising the Pledge Right. The Pledgee may exercise the right to dispose of the Pledge Right at the same time of or any time after the service of the Notice of Default. |
| 8.3 | The Pledgee has the right to sell in accordance with legal procedure or dispose of in the other way allowed by law the Pledged Equity Interests hereunder. If the Pledgee decides to exercise the Pledge Right, the Pledgor undertakes to transfer all of her shareholder rights to the Pledgee for exercise. In addition, the Pledgee has the priority to receive the proceedings arising from selling at a discount, auction of, or selling off the equity interests pledged by the Pledgor to the Pledgee according to the legal proceedings. |
| 8.4 | When the Pledgee is disposing of the Pledge Right in accordance with this Agreement, the Pledgor should not create any obstacle, and shall provide any necessary assistance to help the Pledgee to realize the Pledge Right. |
| 9. | Transfer of Agreement |
| 9.1 | Unless with the prior consent from the Pledgee, the Pledgor has no right to grant or transfer any of her rights and obligations hereunder. |
| 9.2 | This Agreement is binding upon the Pledgor and her successor, as well as the Pledgee and its successors and assignees permitted by the Pledgee. |
| 9.3 | The Pledgee is entitled to transfer any or all rights and obligations under the Master Agreement to any person (individual/legal person) designated by it at anytime. Under this circumstance, the assignee has the same rights and obligations as the Pledgee under this Agreement, as if such rights and obligations are granted to it as a party to this Agreement. When transferring the rights and obligations under the Services Agreement, this Agreement, the Exclusive Purchase Option Agreement and/or Power of Attorney, the Pledgors shall sign any and all related agreement and/or documents as required by the Pledgee. |
| 9.4 | With the change of pledgee due to the transfer, all the parties to the new pledge shall enter into a new pledge contract, which shall be substantially same to this Agreement in the content and to the satisfaction of the Pledgee. |
| 10. | Effectiveness and Termination |
| 10.1 | This Agreement becomes effective on the date hereof. |
| 10.2 | The Parties confirm that whether the pledge hereunder has been registered and recorded or not will not impair the effectiveness and validity of this Agreement. |
| 10.3 | This Agreement will terminate two (2) years after the Pledgor and /or Thai Company no longer assume any liability under or arising from the Master Agreement. |
| 10.4 | Release of pledge shall be recorded accordingly on the register of shareholders of Thai Company and related deregistration formalities shall be proceeded with at the Office of the central company and partnership registration Division of The Department of Business Development. Ministry of commerce. |
| 11. | Processing Fee and Other Costs |
All fees and actual costs related to this Agreement, including not limited to legal fees, processing fee, duty stamp and all the other related taxes and expenses shall be borne by the Pledgor. If related taxes is borne by the Pledgee in accordance with laws, then the Pledgor shall fully indemnify the Pledgee all the taxes withheld by the Pledgee.
| 12. | Force Majeure |
| 12.1 | “Force Majeure Event” shall mean any event beyond the reasonable controls of the Party so affected, which are unpredictable, unavoidable, irresistible even if the affected Party takes a reasonable care, including but not limited to governmental acts, Act of God, fires, explosion, geographical variations, storms, floods, earthquakes, or wars, riot, strike, and any other such events that all Parties have reached a consensus upon. However, any shortage of credits, funding or financing shall not be deemed as the events beyond reasonable controls of the affected Party. |
| 12.2 | In the event that the performance of this Agreement is delayed or interrupted due to the said Force Majeure Event, the affected Party shall be excused from any liability to the extent of the delayed or interrupted performance. The affected Party which intends to seek exemption from its obligations of performance under this Agreement or any provision of this Agreement shall immediately inform the other Party of such a Force Majeure Event and the measures it needs to take in order to complete its performance. |
| 13. | Dispute Resolution |
| 13.1 | The formation, validity, performance and interpretation of this Agreement and the disputes resolution under this Agreement shall be governed by the laws of Thailand. |
| 13.2 | The Parties shall strive to settle any dispute arising from or in connection with this Agreement through friendly consultation. In case no settlement can be reached through consultation within thirty (30) days after the request for consultation is made by any Party, any Party can submit such matter to The Thai Arbitration Institute Office of The Judiciary, Ministry of Justice for arbitration in accordance with its then effective rules. The arbitration shall take place in Bangkok. The arbitration award shall be final and binding upon all the Parties. |
| 14. | Notices |
Notices or other communications required to be given by any Party pursuant to this Agreement shall be made in writing and delivered personally or sent by mail or facsimile transmission to the addresses of the other Parties set forth below or other designated addresses notified by such other Parties to such Party from time to time. The date when the notice is deemed to be duly served shall be determined as the follows: (a) a notice delivered personally is deemed duly served upon the delivery; (b) a notice sent by mail is deemed duly served on the seventh (7th) day after the date when the air registered mail with postage prepaid has been sent out (as is shown on the postmark), or the fourth (4th) day after the delivery date to the internationally recognized courier service agency; and (c) a notice sent by facsimile transmission is deemed duly served upon the receipt time as is shown on the transmission confirmation of relevant documents.
If to the Pledgee: One Belt One Network Holdings Limited
Address: Vistra Corporate Service Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands, VG1110
Attention: Ratanaphon Wongnapachant
Fax:
If to the Pledgor: Chanikarn Lertchawalitanon
Address: 150 Burapaphirom, Phra Nakom
Bangkok, Thailand
Fax:+
If to Party C: OBON Corporation Company Limited
Address: 121/34, RS Tower, 8th Floor, Ratchadaphisek Road, Din Daeng Sub-district, din Daeng District, Bangkok, Thailand
Attention: Ratanaphon Wongnapachant
Fax: +662 0402455
| 15. | Miscellaneous |
| 15.1 | The headings contained in this Agreement are for the convenience of reference only and shall not be used to interpret, explain or otherwise affect the meaning of the provisions of this Agreement. |
| 15.2 | The Parties agree to promptly execute any document and take any other action reasonably necessary or advisable to perform provisions and purpose of this Agreement. |
| 15.3 | The Parties confirm that this Agreement shall, upon its effectiveness, constitute the entire agreement and common understanding of the Parties with respect to the subject matters herein and fully supersede all prior verbal and/or written agreements and understandings with respect to the subject matters herein. |
| 15.4 | The Parties may amend and supplement this Agreement in writing. Any amendment and/or supplement to this Agreement duly signed by the Parties is an integral part of and has the same effect with this Agreement. |
| 15.5 | Any Party’s failure to exercise the rights under this Agreement in time shall not be deemed as its waiver of such rights and would not affect its future exercise of such rights. |
| 15.6 | If any provision of this Agreement is held void, invalid or unenforceable by a court of competent jurisdiction, governmental agency or arbitration authority, the validity, legality and enforceability of the other provisions hereof shall not be affected or impaired in any way. The Parties shall cease performing such void, invalid or unenforceable provisions and revise such void, invalid or unenforceable provisions only to the extent closest to the original intention thereof to recover its validity or enforceability for such specific facts and circumstances. |
| 15.7 | Any schedule hereto is an integral part of and has the same effect with this Agreement. |
| 15.8 | This Agreement is made in five (5) originals with each Party holding one (1) original. And other originals are submitted to the competent authorities for proceeding with the formalities of registration of pledge of equity interests. Parties agree to fully cooperate and sign any additional documents to complete the registration of the pledge contemplated in this Agreement. Party B shall prepare and submit all the forms and applications for the registration of the pledge and this Agreement pursuant to the requirements of the laws and regulations of Thailand. |
[Remainder of Page Intentionally Blank]
(Signature Page to Equity Pledge Agreement)
IN WITNESS THEREOF, each Party has signed or caused its legal representative to sign this Agreement as of the date first written above.
| Party A: One Belt One Network Holdings Limited | |||
| /s/Wai Hok Fung | [Seal] | ||
| By: | Wai Hok Fung | ||
| Director | |||
| Party B: Chanikarn Lertchawalitanon | |||
| /s/ Chanikarn Lertchawalitanon | |||
| By: Chanikarn Lertchawalitanon | |||
| Party C: OBON Corporation Company Limited | |||
| /s/ Ratanaphon Wongnapachant | [Seal] | ||
| By: | Ratanaphon Wongnapachant | ||
| Director | |||
Exhibit 10.3
EXCLUSIVE PURCHASE OPTION AGREEMENT
This EXCLUSIVE PURCHASE OPTION AGREEMENT (this “Agreement”), dated October 30, 2019, is made by and among:
Party A: One Belt One Network Holdings Limited, with registered address at Vistra Corporate Service Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands, VG1110; and
Party B: Wanee Watcharakangka, at 2 Lad Prao, Lad Prao, Bangkok, Thailand; and
Party C: OBON Corporation Company Limited, with registered address at 121/34, Ratchadaphisek Road, Din Daeng Sub-district, din Daeng District, Bangkok, Thailand.
Party A, Party B and Party C individually being referred to as a “Party” and collectively the “Parties”
Whereas,
| 1. | Party C is a company duly incorporated and validly existing under the laws of Thailand. Party B owns 1,000 shares of Party C, which is 0.09% of the outstanding and issued shares of Party C as of the date of this Agreement; and |
| 2. | Party A and Party B have made an Equity Pledge Agreement (the “Equity Pledge Agreement”) dated October 30, 2019. |
NOW, THEREFORE, the Parties hereby agree as follows through negotiations:
| 1. | Purchase and Sale of Equity Interests |
| 1.1 | Grant of Right |
Party B hereby exclusively and irrevocably grants Party A an exclusive option to purchase or designate one or several person(s) (the “Designated Person”) to purchase all or any part of the equity interests held by Party B in Party C (the “Purchase Option”) at any time from Party B at the price specified in Article 1.3 of this Agreement in accordance with the procedures determined by Party A at its own discretion and to the extent permitted by the laws of Thailand. No party other than Party A and the Designated Person may have the Purchase Option. Party C hereby consents and agrees to the grant by Party B of the Purchase Option to Party A. For purpose of this Section 1.1 and this Agreement, “person” means any individual, corporation, joint venture, partnership, enterprise, trust or non-corporation organization.
| 1.2 | Procedures |
Party A may exercise the Purchase Option subject to its compliance with the laws and applicable regulations of Thailand. Upon exercising the Purchase Option, Party A will issue a written notice (the “Equity Interest Purchase Notice”) to Party B which notice will specify: (i) Party A’s decision to exercise the Purchase Option; (ii) the percentage of equity interest to be purchased from Party B (the “Purchased Equity Interest”); (iii) the date of purchase/equity interest transfer, and (iv) and the purchase price.
| 1.3 | Purchase Price |
1.3.1. When Party A exercises the Purchase Option, the purchase price of the Purchased Equity Interest (“Purchase Price”) shall be equal to the registered capital paid by Party B for the Purchased Equity Interest, unless applicable laws and regulations require appraisal of the Purchased Equity Interest or any other restriction on the Purchase Price.
1.3.2. If applicable laws require appraisal of the Purchased Equity Interest or any other restrictions on the Purchase Price in connection with exercise of the Purchase Option by Parties A, Party A and Party B agree that the Purchase Price of the Purchased Equity Interest shall be the lowest price permissible under applicable laws.
| 1.4 | Transfer of the Purchased Equity Interest |
When Party A exercises the Purchase Option:
1.4.1. Party B shall cause Party C to promptly convene a shareholders’ meeting or through written consent, during which a resolution shall be adopted to approve transfer of the equity interest to Party A and/or the Designated Person;
1.4.2. Party B shall enter into an equity interest transfer agreement with Party A and/or the Designated Person pursuant to the terms and conditions of this Agreement and the Purchase Notice;
1.4.3. The Parties shall execute all other contracts, agreements or documents, obtain all governmental approvals and consents, and conduct all actions that are necessary to transfer the ownership of the Purchased Equity Interest to Party A and/or the Designated Person free from any security interest and cause Party A and/or the Designated Person to be registered as the owner of the Purchased Equity Interest. For the purpose of this Section 1.4.3 and this Agreement, “Security Interest” includes guarantees, mortgages, pledges, third-party rights or interests, any purchase option, right of acquisition, right of first refusal, right of set-off, ownership detainment or other security arrangements, but excludes any security interest arising from this Agreement or the Equity Pledge Agreement.
1.4.4. Party B and Party C shall unconditionally use its best efforts to assist Party A in obtaining the governmental approvals, permits, registrations, filings and complete all formalities necessary for the transfer of the Purchased Equity Interest.
| 2. | Covenants regarding the Equity Interest |
| 2.1 | Party C hereby covenants that: |
2.1.1 Without prior written consent by Party A, it will not supplement, change or amend the Articles of Association, increase or decrease the registered capital, or otherwise change the registered capital structure of Party C;
2.1.2 It will maintain due existence of Party C, prudently and effectively operate and handle its business in accordance with fair financial and business standards and customs;
2.1.3 Without prior written consent of Party A, it will not sell, transfer, pledge or otherwise dispose any legal or beneficial interest of any assets, businesses or income of Party C, or permit existence of such security interest;
2.1.4 Without prior written consent by Party A, it will not incur, inherit, guarantee or allow the existence of any debt, except for (i) any debt incurred during its ordinary course of business rather than from borrowing; and (ii) any debt which has been disclosed to and obtained the written consent from Party A;
2.1.5 It will always conduct business operations in the ordinary course to maintain its asset value, and refrain from any action/omission that may adversely affect its business operations and asset value;
2.1.6 Without prior written consent by Party A, not to enter into any material agreement other than those executed in its ordinary course of business (for purpose of this Section 2.1.6, a material agreement means any agreement with a contact value exceeding 50,000 Baht.
2.1.7 Without prior written consent by Party A, it will not provide any loan or guaranty to any person;
2.1.8 Upon Party A’s request, it will provide Party A with information regarding its operations and financial conditions;
2.1.9 It will buy and maintain requisite insurance policies from an insurer acceptable to Party A, the amount and type of which will be the same with those maintained by the companies having similar operations, properties or assets in the same region;
2.1.10 Without prior written consent by Party A, it will not combine, merge with, acquire or make investment to any person;
2.1.11 It will immediately notify Party A of any actual or potential litigation, arbitration or administrative proceeding regarding its assets, business and income;
2.1.12 In order to keep its ownership of the equity interest of Party C, it will execute all requisite or appropriate documents, conduct all requisite or appropriate actions, and make all requisite or appropriate claims, or make requisite or appropriate defense against all claims; and
2.1.13 Without prior written consent by Party A, it will not distribute any dividend or bonus to any of its shareholders.
| 2.2 | Party B hereby covenants that: |
2.2.1 Without prior written consent by Party A, it will not supplement, change or amend the Articles of Association, increase or decrease the registered capital, or otherwise change the registered capital structure of Party C;
2.2.2 Without the prior written consent by Party A, it will not sell, transfer, pledge or otherwise dispose any legal or beneficial interest of the equity interests of Party C held by it, or allow other security interests to be created on it, except for the pledge set upon Party C’s equity interests held by Party B pursuant to the Equity Pledge Agreement;
2.2.3 It will procure that without prior written consent by Party A, no resolution be made at any meeting of Party C’s shareholders to approve Party C to sell, transfer, pledge or otherwise dispose any legal or beneficial interest of the equity interests of Party C held by it, or allow other security interests to be created on it, except for the pledge set upon Party C’s equity interests held by Party B pursuant to the Equity Pledge Agreement;
2.2.4 It will procure that without prior written consent by Party A, no resolution be made at any meeting of Party C’s shareholders to approve merger, consolidation, purchase or investment with or any person by Party C;
2.2.5 It will immediately notify Party A of any actual or potential litigation, arbitration or administrative proceeding regarding its assets, business and income;
2.2.6 It will cause Party C’s shareholders’ meeting to vote for the transfer of the Purchased Equity Interest provided hereunder;
2.2.7 In order to keep its ownership of the equity interests of Party C, it will execute all requisite or appropriate documents, conduct all requisite or appropriate actions, and make all requisite or appropriate claims, or make requisite or appropriate defense against all claims;
2.2.8 At the request of Party A, it will appoint any person nominated by Party A to the board of Party C;
2.2.9 At the request of Party A at any time, it will transfer unconditionally and immediately the Purchased Equity Interest to Party A or any Designated Person. If the equity interest of Party C could by sold or transferred to any party other than Party A or the Designated Person, Party B may not waive its right of first refusal without Party A’s consent;
2.2.10 It will strictly comply with the provisions of this Agreement and other agreements executed by Party B, duly perform all obligations under such agreements, and will not make any act or omission which may affect the validity and enforceability of these agreements; and
| 2.3 | Party A hereby covenants that: |
To satisfy the cash flow requirements with regard to the business operations of Party C or make up Party C’s losses accrued through such operations, Party A agrees that it shall, through itself or its designated person, provide financial support to Party C.
| 3. | Representations and Warranties |
Each of Party B and Party C represents and warrants, jointly and severally, to Party A that as of the date of this Agreement:
3.1 It has the rights and powers to execute and deliver this Agreement and any equity interest transfer agreement (the “Transfer Agreement”) executed for each transfer of the Purchased Equity Interest contemplated hereunder to which it is a party, and perform its obligations under this Agreement and any Transfer Agreement. Once executed, this Agreement and the Transfer Agreement to which it is a party will be its legal, valid and binding obligations and enforceable against it according to the terms of this Agreement and the Transfer Agreement.
3.2 None of its execution, delivery and performance of this Agreement or any Transfer Agreement will: (i) breach any applicable laws; (ii) conflict with its memorandum of association or any other organizational documents; (iii) breach any agreement or document to which it is a party or binding upon it, or constitute breach of any such agreement or document; (iv) breach any condition on which basis any of its permits or approvals is granted and/or will continue to be effective; or (v) cause any of its permits or approvals to be suspended, cancelled or imposed with additional conditions.
3.3 Party B has good and entire ownership of and creates no security interest or encumbrance upon any of his assets and/or equity interests of the Party C.
3.4 Party C has no outstanding debt, except for those (i) incurred during its ordinary course of business, and (ii) disclosed to and approved in writing by Party A.
3.5 Party C is in compliance with all applicable laws and regulations.
| 4. | Effectiveness and Term |
4.1 This Agreement shall be effective as of the date of its execution.
4.2 The term of this Agreement is ten (10) years. This Agreement may be extended for another ten (10) years upon Party A’s written confirmation prior to the expiration of this Agreement, and so forth thereafter.
4.3 During the term provided in Section 4.2, if Party A or Party C is terminated at expiration of their respective operation term (including any extension of such term) or by any other reason, this Agreement shall be terminated upon such termination.
| 5. | Termination |
5.1 At any time during the term of this Agreement and any extended term hereof, if Party A cannot exercise the Purchase Option pursuant to Section 1 due to then applicable laws, Party A can, at its own discretion, unconditionally terminate this Agreement by issuing a written notice to Party B without any liability.
5.2 If Party C is terminated due to bankruptcy, dissolution or being ordered to close down by the laws during the term of this Agreement and its extension period,, the obligations of Party B hereunder shall be terminated upon the termination of Party C; notwithstanding anything to the contrary, Party B shall immediately repay the principal and any interest accrued thereupon under any loan agreement between the Party A and Party B.
5.3 Except under circumstances indicated in Section 5.2, Party B may not unilaterally terminate this Agreement at any time during the term and extension periods of this Agreement without Party A’s written consent.
| 6. | Taxes and Expenses |
Each Party shall bear any and all taxes, costs and expenses related to transfer and registration as required by the laws of Thailand incurred by or imposed on such Party arising from the preparation and execution of this Agreement and the consummation of the transaction contemplated hereunder.
| 7. | Breach of Contract |
7.1 If either Party (“Defaulting Party”) breaches any provision of this Agreement, which causes damage to other Parties (“Non-defaulting Party”), the Non-defaulting Party could notify the Defaulting Party in writing and request it to rectify and correct such breach of contract; if the Defaulting Party fails to take any action satisfactory to the Non-defaulting Party to rectify and correct such breach within fifteen (15) days upon the issuance of the written notice by the Non-defaulting Party, the Non-defaulting Party may take the actions pursuant to this Agreement or take other remedies in accordance with the laws.
7.2 The following events shall constitute a default by Party B:
| (1) | Party B breaches any provision of this Agreement, or any representation or warranty made Party B under this Agreement is untrue or proves inaccurate in any material aspect; |
| (2) | Party B assigns or otherwise transfers or disposes of any of its rights under this Agreement without the prior written consent by Party A; or |
| (3) | Any breaches by Party B which renders this Agreement and the Equity Pledge Agreement unenforceable. |
7.3 Should a breach of contract by Party B or violation by Party B of the Equity Pledge Agreement occur, Party A may request Party B to immediately transfer all or any part of the Purchased Equity Interests to Party A or the Designated Person pursuant to this Agreement; and
| 8. | Notices |
Notices or other communications required to be given by any Party pursuant to this Agreement shall be made in writing and delivered personally or sent by mail or facsimile transmission to the addresses of the other Parties set forth below or other designated addresses notified by such other Parties to such Party from time to time. The date when the notice is deemed to be duly served shall be determined as the follows: (a) a notice delivered personally is deemed duly served upon the delivery; (b) a notice sent by mail is deemed duly served on the seventh (7th) day after the date when the air registered mail with postage prepaid has been sent out (as is shown on the postmark), or the fourth (4th) day after the delivery date to the internationally recognized courier service agency; and (c) a notice sent by facsimile transmission is deemed duly served upon the receipt time as is shown on the transmission confirmation of relevant documents.
If to Party A: One Belt One Network Holdings Limited
Address: Vistra Corporate Service Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands, VG1110
Attention: Ratanaphon Wongnapachant
Fax:
If to Party B: Wanee Watcharakangka
Address: 2 Lad Prao, Lad Prao
Bangkok, Thailand
Fax:
If to Party C: OBON Corporation Company Limited
Address: 121/34, RS Tower, 8th Floor, Ratchadaphisek Road, Din Daeng Sub-district, din Daeng District, Bangkok, Thailand
Attention: Ratanaphon Wongnapachant
Fax: +662 0402455
| 9. | Applicable Law and Dispute Resolution |
9.1 The formation, validity, performance and interpretation of this Agreement and the disputes resolution under this Agreement shall be governed by the laws of Thailand.
9.2 The Parties shall strive to settle any dispute arising from or in connection with this Agreement through friendly consultation. In case no settlement can be reached through consultation within thirty (30) days after the request for consultation is made by any Party, any Party can submit such matter to The Thai Arbitration Institute Office of The Judiciary, Ministry of Justice for arbitration in accordance with its then effective rules. The arbitration shall take place in Bangkok. The arbitration award shall be final and binding upon all the Parties.
| 10. | Confidentiality |
All Parties acknowledge and confirm that any oral or written materials exchanged by and between the Parties in connection with this Agreement are confidential. All Parties shall keep in confidence all such information and not disclose it to any third party without prior written consent from other Parties unless: (a) such information is known or will be known by the public (except by disclosure of the receiving party without authorization); (b) such information is required to be disclosed in accordance with applicable laws or rules or regulations; or (c) if any information is required to be disclosed by any party to its legal or financial advisor for the purpose of the transaction of this Agreement, such legal or financial advisor shall also comply with the confidentiality obligation similar to that stated hereof. Any disclosure by any employee or agency engaged by any Party shall be deemed the disclosure of such Party and such Party shall assume the liabilities for its breach of contract pursuant to this Agreement. This Article shall survive expiration or termination of this Agreement.
| 11. | Miscellaneous |
11.1 The headings contained in this Agreement are for the convenience of reference only and shall not be used to interpret, explain or otherwise affect the meaning of the provisions of this Agreement.
11.2 The Parties agree to promptly execute any document and take any other action reasonably necessary or advisable to perform provisions and purpose of this Agreement.
11.3 The Parties confirm that this Agreement shall, upon its effectiveness, constitute the entire agreement and common understanding of the Parties with respect to the subject matters herein and fully supersede all prior verbal and/or written agreements and understandings with respect to the subject matters herein.
11.4 The Parties may amend and supplement this Agreement in writing. Any amendment and/or supplement to this Agreement by the Parties is an integral part of and has the same effect with this Agreement
11.5 This Agreement shall be binding upon and for the benefit of all the Parties hereto and their respective inheritors, successors and the permitted assigns.
11.6 Any Party’s failure to exercise the rights under this Agreement in time shall not be deemed as its waiver of such rights and would not affect its future exercise of such rights.
11.7 If any provision of this Agreement is held void, invalid or unenforceable by a court of competent jurisdiction, governmental agency or arbitration authority, the validity, legality and enforceability of the other provisions hereof shall not be affected or impaired in any way. The Parties shall cease performing such void, invalid or unenforceable provisions and revise such void, invalid or unenforceable provisions only to the extent closest to the original intention thereof to recover its validity or enforceability for such specific facts and circumstances.
11.8 Unless with prior written consent from Party A, none of Party B or Party C may assign any of its rights and obligations under this Agreement to any third party.
11.9 This Agreement is made in (3) originals with each Party holding one (1) original.
[Remainder of Page Left Blank]
(Signature Page to Exclusive Purchase Option Agreement)
IN WITNESS THEREOF, each Party has signed or caused its authorized representative to sign this Agreement as of the date first written above.
| Party A: One Belt One Network Holdings Limited | |||
| /s/ Wai Hok Fung | [Seal] | ||
| By: | Wai Hok Fung | ||
| Director | |||
| Party B: Wanee Watcharakangka | |||
|
/s/ Wanee Watcharakangka |
|||
|
By: |
Wanee Watcharakangka |
||
| Party C: OBON Corporation Company Limited | |||
| /s/ Ratanaphon Wongnapachant | [Seal] | ||
| By: | Ratanaphon Wongnapachant | ||
| Director | |||
Exhibit 10.4
Equity Pledge Agreement
This EQUITY PLEDGE AGREEMENT, (this “Agreement”), dated October 30, 2019, is made by and among:
| Party A: | One Belt One Network Holdings Limited, with registered address at Vistra Corporate Service Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands, VG1110; and |
| Party B: | Wanee Watcharakangka, at 2 Lad Prao, Lad Prao, Bangkok, Thailand |
| Party C: | OBON Corporation Company Limited, with registered address at 121/34, Ratchadaphisek Road, Din Daeng Sub-district, din Daeng District, Bangkok, Thailand. |
(Party B is referred to as “Pledgor” hereinafter; Party A is referred to as “Pledgee” hereinafter; and either the Pledgors or the Pledgee is individually referred to as a “Party” and collectively referred to as the “Parties”.)
Whereas,
| (1) | OBON Corporation Company Limited (“Thai Company”) is a company duly incorporated and validly existing under the laws of Thailand with the registered share capital of 11,000,000 Baht, divided into 1,100,000 shares as the date of this Agreement. |
| (2) | The Pledgor holds 1,000 shares of Thai Company (the “Shares”). |
| (3) | The Pledgee is a company duly incorporated and existing under the laws of the British Virgin Islands. |
| (4) | The Pledgee and Thai Company entered into an Exclusive Technology Consulting and Service Agreement (“Services Agreement”) on June 4, 2019. |
| (5) | The Pledgor and the Pledgee entered into an Exclusive Purchase Option Agreement on October 30, 2019 (“Exclusive Purchase Option Agreement”). In addition, the Pledgor delivered the Power of Attorney to the Pledgee on October 30, 2019 (“Power of Attorney”, together with the Services Agreement, and Exclusive Purchase Option Agreement, collectively referred as “Master Agreement”). |
| (6) | In order to secure the Pledgor’s performance of his obligations under this Agreement and the Master Agreement, and in order to ensure Thai Company to be able to perform its obligations under the Services Agreement, the Pledgor hereby pledges all the equity interests held by him in Thai Company as the guaranty for his and/or Thai Company’s performance of obligations under the Master Agreement. |
NOW, THEREFORE, the Parties hereby agree as follows through friendly negotiations:
| 1. | Definition |
Unless otherwise specified herein, the following words shall have the meanings as follows:
| 1.1 | Pledge Right: means the priority right the Pledgee owns, with respect to the proceedings arising from selling at a discount, auction of, or selling off the equity interests pledged by the Pledgor to the Pledgee. |
| 1.2 | Pledged Equity Interests: means all the equity interests duly held by the Pledgor in Thai Company, i.e. the Shares of Thai Company, as well as all the other rights created over it. |
| 1.3 | Term of Pledge: means the period of term specified in Article 3 hereof. |
| 1.4 | Event of Default: means any of the circumstances listed in Article 7 hereof. |
| 1.5 | Notice of Default: means any notice issued by the Pledgee to the Pledgors in accordance with this Agreement specifying an Event of Default. |
| 2. | Pledge Right and Scope of Guaranty |
| 2.1 | The Pledgor agrees to pledge all the Pledged Equity Interests to the Pledgee as the guaranty for his and/or Thai Company’s performance of all the obligations under the Master Agreement and all the liabilities of indemnification to the Pledgee which may arise due to the invalidity or cancellation of the Master Agreement. Thai Company agrees with such equity pledge arrangement. |
| 2.2 | The effect of guaranty under the Master Agreement will not be prejudiced by any amendment or change of the Master Agreement. The invalidity or cancellation of the Master Agreement does not impair the validity of this Agreement. In the event that the Master Agreement is deemed as invalid, or cancelled or revoked for any reason, the Pledgee is entitled to realized its pledge right in accordance with Article 8 hereof. |
| 3. | Creation and Term of Pledge |
| 3.1 | The Pledge Right hereunder shall be reflected on the register of shareholders and the capital contribution certificate in accordance with the form as attached to this Agreement. |
| 3.2 | The term of the Pledge Right is effective from the registration of pledge of equity interests with the Office of the central company and partnership Registration of the place where Thai Company is registered, till the day on which all the obligations under the Master Agreement are fully performed (“Term of Pledge”). |
| 3.3 | During the Term of Pledge, if the Pledgor and/or Thai Company fails to perform any obligation under or arising from the Master Agreement, the Pledgee has the right to dispose of the Pledge Right in accordance with Article 8 hereof. |
| 4. | Possession of Pledge Certificates |
| 4.1 | The Pledgor shall deliver the register of shareholders and capital contribution certificate of Thai Company which reflects the pledge of equity interests as mentioned in above Article 3 within three (3) business days upon the pledge is recorded on such documents, to the Pledgee for its possession , and the Pledgee is obligated to keep the received pledge documents. |
| 4.2 | The Pledgee is entitled to all the proceeds in cash including the dividends and all the other non-cash proceeds arising from the Pledge Equity Interests since October 30, 2019. |
| 5. | Representations and Warranties of the Pledgor |
| 5.1 | The Pledgor is the legal owner of Pledged Equity Interests. |
| 5.2 | Once the Pledgee intends to exercise the rights of the Pledgee under this Agreement anytime, it shall be protected from any interference from any other party. |
| 5.3 | The Pledgee has the right to dispose of or transfer the Pledge Right in the way as described hereunder. |
| 5.4 | The Pledgor has never created any other pledge right or any other third party right over the Pledged Equity Interests except towards the Pledgee. |
| 6. | Covenants from the Pledgors |
| 6.1 | During the term of this Agreement, the Pledgor covenants to the Pledgee as follows: |
| 6.1.1 | Without prior written consent of the Pledgee, the Pledgor should not transfer the Pledged Equity Interests, or create or allow creation of any new pledge or any other security upon the Pledged Equity Interests which may impair the rights and/or interest of the Pledgee, except for the transfer of equity interests to the Pledgee or the person designated by the Pledgee in accordance with the Exclusive Purchase Option Agreement. |
| 6.1.2 | The Pledgor shall abide by and exercise all the provisions of laws and regulations in relation to the pledge of rights, and shall present the Pledgee any and all notices, directions or suggestions issued by related competent authorities within two (2) days upon the receipt of such notices, directions or suggestions, and shall comply with such notices, directions or suggestions, or present its opposite opinions and representations regarding the above mentioned issues according to the reasonable request of the Pledgee or with the consent from the Pledgee; |
| 6.1.3 | The Pledgor shall give prompt notice to the Pledgee regarding any occurrence or received notice which may influence the equity interests or any part of the equity interests held by the Pledgor, or may change any warranties or obligations of the Pledgor under this Agreement or may influence the performance of obligations by the Pledgor hereunder. |
| 6.2 | The Pledgor agrees that, the right of the Pledgee to exercise of Pledge Right hereunder in accordance with this Agreement, shall not be interfered or impaired by any legal proceedings taken by the Pledgor, or the successor or designated person of the Pledgor or any other person. |
| 6.3 | The Pledgor warrants to the Pledgee that, in order to protect or consummate the guaranty provided by this Agreement regarding the performance of the Master Agreement, the Pledgor will faithfully sign, or cause any other party which is materially related to the Pledge Right to sign, any and all right certificates and deeds, and/or take, or cause any other party which is materially related to the Pledge Right to take, any and all actions, reasonably required by the Pledgee, and will facilitate the exercise of the rights and authorizations granted to the Pledgee under this Agreement, enter into any change to related equity certificate with the Pledgee or the Pledgee’s designated person (individual/legal person), and provide to the Pledgee any and all notices, orders and decisions as deemed necessary by the Pledgee. |
| 6.4 | The Pledgor undertakes to the Pledgee he will abide by and perform all representations, warranties and undertakings to protect the interests of the Pledgee. The Pledgor shall indemnify the Pledgee any and all losses suffered by the Pledgee due to the Pledgor’s failure or partial failure in performance of his representations, warranties or undertakings. |
| 6.5 | The Pledgor covenants to the Pledgee that he assumes several and joint liabilities with respect to the obligations hereunder. |
| 7. | Event of Default |
| 7.1 | Any of the following is deemed as an Event of Default: |
| 7.1.1 | Thai Company fails to perform its obligations under the Master Agreement; |
| 7.1.2 | Any representation or warranty of the Pledgor under this Agreement is substantially misleading or untrue, and/or the Pledgor breaches any of his representations and warranties under this Agreement; |
| 7.1.3 | The Pledgor breaches his covenants hereunder; |
| 7.1.4 | The Pledgor breaches any provision hereof; |
| 7.1.5 | Except that the Pledgor transfers the equity interests to the Pledgee or the Pledgee’s designated person in accordance with the Exclusive Purchase Option Agreement, the Pledgor waives the Pledged Equity Interests or transfers the Pledged Equity Interests without the written consent from the Pledgee; |
| 7.1.6 | Any external borrowings, guaranty, indemnification, undertakings or any other liabilities of the Pledgor (1) is required to be repaid or exercised early due to its default; or (2) is not repaid or exercised when due, which makes the Pledgee reasonably believes that the ability of the Pledgor to perform his obligations under this Agreement has been impaired. |
| 7.1.7 | The Pledgor fails to repay general debts or other liabilities; |
| 7.1.8 | This Agreement is deemed to be illegal with promulgation of related laws, or the Pledgor is unable to continue to perform his obligations hereunder; |
| 7.1.9 | The consent, permit, approval or authorization from the competent authorities for making this Agreement enforceable, legal or valid is revoked, suspended, invalidated or materially amended; |
| 7.1.10 | Adverse change occur with respect to the assets of the Pledgor, which makes the Pledgee reasonably believes that the ability of the Pledgor to perform his obligations under this Agreement has been impaired. |
| 7.1.11 | Successor of the Pledgor or Thai Company can only perform part of, or refuses to perform, its obligations under this Agreement. |
| 7.1.12 | Other circumstances occur which make the Pledgee unable to exercise or dispose of the Pledge Right in accordance with related laws. |
| 7.2 | In the event that the Pledgor is aware of or discover that any issue described in the above Article 7.1 or any other issue which may cause the occurrence of such mentioned issues has occurred, the Pledgor shall give a prompt written notice to the Pledgee. |
| 7.3 | Unless that the Event of Default specified in above Article 7.1 has been resolved to the satisfaction of the Pledgee, otherwise the Pledgee is entitled to (not obligated to) serve a Notice of Default to the Pledgor immediately following or any time after the occurrence of the Event of Default, to require the Pledgor and Thai Company to immediately perform its obligations under the Master Agreement (including without limitation to payment of the due and unpaid debts and other amounts payable under the Services Agreement) or dispose of the Pledge Right in accordance with Article 8 hereof. |
| 8. | Exercise of Pledge Right |
| 8.1 | Prior to the fully fulfillment of performance of the obligations under the Master Agreement, the Pledgor should not transfer the Pledged Equity Interests without the written consent of the Pledgee. |
| 8.2 | In the event of occurrence of the Event of Default described in above Article 7, the Pledgee shall give a Notice of Default to the Pledgor when exercising the Pledge Right. The Pledgee may exercise the right to dispose of the Pledge Right at the same time of or any time after the service of the Notice of Default. |
| 8.3 | The Pledgee has the right to sell in accordance with legal procedure or dispose of in the other way allowed by law the Pledged Equity Interests hereunder. If the Pledgee decides to exercise the Pledge Right, the Pledgor undertakes to transfer all of his shareholder rights to the Pledgee for exercise. In addition, the Pledgee has the priority to receive the proceedings arising from selling at a discount, auction of, or selling off the equity interests pledged by the Pledgor to the Pledgee according to the legal proceedings. |
| 8.4 | When the Pledgee is disposing of the Pledge Right in accordance with this Agreement, the Pledgor should not create any obstacle, and shall provide any necessary assistance to help the Pledgee to realize the Pledge Right. |
| 9. | Transfer of Agreement |
| 9.1 | Unless with the prior consent from the Pledgee, the Pledgor has no right to grant or transfer any of his rights and obligations hereunder. |
| 9.2 | This Agreement is binding upon the Pledgor and his successor, as well as the Pledgee and its successors and assignees permitted by the Pledgee. |
| 9.3 | The Pledgee is entitled to transfer any or all rights and obligations under the Master Agreement to any person (individual/legal person) designated by it at anytime. Under this circumstance, the assignee has the same rights and obligations as the Pledgee under this Agreement, as if such rights and obligations are granted to it as a party to this Agreement. When transferring the rights and obligations under the Services Agreement, this Agreement, the Exclusive Purchase Option Agreement and/or Power of Attorney, the Pledgors shall sign any and all related agreement and/or documents as required by the Pledgee. |
| 9.4 | With the change of pledgee due to the transfer, all the parties to the new pledge shall enter into a new pledge contract, which shall be substantially same to this Agreement in the content and to the satisfaction of the Pledgee. |
| 10. | Effectiveness and Termination |
| 10.1 | This Agreement becomes effective on the date hereof. |
| 10.2 | The Parties confirm that whether the pledge hereunder has been registered and recorded or not will not impair the effectiveness and validity of this Agreement. |
| 10.3 | This Agreement will terminate two (2) years after the Pledgor and /or Thai Company no longer assume any liability under or arising from the Master Agreement. |
| 10.4 | Release of pledge shall be recorded accordingly on the register of shareholders of Thai Company and related deregistration formalities shall be proceeded with at the Office of the central company and partnership registration Division of The Department of Business Development. Ministry of commerce. |
| 11. | Processing Fee and Other Costs |
All fees and actual costs related to this Agreement, including not limited to legal fees, processing fee, duty stamp and all the other related taxes and expenses shall be borne by the Pledgor. If related taxes is borne by the Pledgee in accordance with laws, then the Pledgor shall fully indemnify the Pledgee all the taxes withheld by the Pledgee.
| 12. | Force Majeure |
| 12.1 | “Force Majeure Event” shall mean any event beyond the reasonable controls of the Party so affected, which are unpredictable, unavoidable, irresistible even if the affected Party takes a reasonable care, including but not limited to governmental acts, Act of God, fires, explosion, geographical variations, storms, floods, earthquakes, or wars, riot, strike, and any other such events that all Parties have reached a consensus upon. However, any shortage of credits, funding or financing shall not be deemed as the events beyond reasonable controls of the affected Party. |
| 12.2 | In the event that the performance of this Agreement is delayed or interrupted due to the said Force Majeure Event, the affected Party shall be excused from any liability to the extent of the delayed or interrupted performance. The affected Party which intends to seek exemption from its obligations of performance under this Agreement or any provision of this Agreement shall immediately inform the other Party of such a Force Majeure Event and the measures it needs to take in order to complete its performance. |
| 13. | Dispute Resolution |
| 13.1 | The formation, validity, performance and interpretation of this Agreement and the disputes resolution under this Agreement shall be governed by the laws of Thailand. |
| 13.2 | The Parties shall strive to settle any dispute arising from or in connection with this Agreement through friendly consultation. In case no settlement can be reached through consultation within thirty (30) days after the request for consultation is made by any Party, any Party can submit such matter to The Thai Arbitration Institute Office of The Judiciary, Ministry of Justice for arbitration in accordance with its then effective rules. The arbitration shall take place in Bangkok. The arbitration award shall be final and binding upon all the Parties. |
| 14. | Notices |
Notices or other communications required to be given by any Party pursuant to this Agreement shall be made in writing and delivered personally or sent by mail or facsimile transmission to the addresses of the other Parties set forth below or other designated addresses notified by such other Parties to such Party from time to time. The date when the notice is deemed to be duly served shall be determined as the follows: (a) a notice delivered personally is deemed duly served upon the delivery; (b) a notice sent by mail is deemed duly served on the seventh (7th) day after the date when the air registered mail with postage prepaid has been sent out (as is shown on the postmark), or the fourth (4th) day after the delivery date to the internationally recognized courier service agency; and (c) a notice sent by facsimile transmission is deemed duly served upon the receipt time as is shown on the transmission confirmation of relevant documents.
| If to the Pledgee: One Belt One Network Holdings Limited |
| Address: Vistra Corporate Service Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands, VG1110 |
| Attention: Ratanaphon Wongnapachant |
| Fax: |
| If to the Pledgor: Wanee Watcharakangka |
| Address: 2 Lad Prao, Lad Prao |
| Bangkok, Thailand |
| Fax:+ |
| If to Party C: OBON Corporation Company Limited |
| Address: 121/34, RS Tower, 8th Floor, Ratchadaphisek Road, Din Daeng Sub-district, din Daeng District, Bangkok, Thailand |
| Attention: Ratanaphon Wongnapachant |
| Fax: +662 0402455 |
| 15. | Miscellaneous |
| 15.1 | The headings contained in this Agreement are for the convenience of reference only and shall not be used to interpret, explain or otherwise affect the meaning of the provisions of this Agreement. |
| 15.2 | The Parties agree to promptly execute any document and take any other action reasonably necessary or advisable to perform provisions and purpose of this Agreement. |
| 15.3 | The Parties confirm that this Agreement shall, upon its effectiveness, constitute the entire agreement and common understanding of the Parties with respect to the subject matters herein and fully supersede all prior verbal and/or written agreements and understandings with respect to the subject matters herein. |
| 15.4 | The Parties may amend and supplement this Agreement in writing. Any amendment and/or supplement to this Agreement duly signed by the Parties is an integral part of and has the same effect with this Agreement. |
| 15.5 | Any Party’s failure to exercise the rights under this Agreement in time shall not be deemed as its waiver of such rights and would not affect its future exercise of such rights. |
| 15.6 | If any provision of this Agreement is held void, invalid or unenforceable by a court of competent jurisdiction, governmental agency or arbitration authority, the validity, legality and enforceability of the other provisions hereof shall not be affected or impaired in any way. The Parties shall cease performing such void, invalid or unenforceable provisions and revise such void, invalid or unenforceable provisions only to the extent closest to the original intention thereof to recover its validity or enforceability for such specific facts and circumstances. |
| 15.7 | Any schedule hereto is an integral part of and has the same effect with this Agreement. |
| 15.8 | This Agreement is made in five (5) originals with each Party holding one (1) original. And other originals are submitted to the competent authorities for proceeding with the formalities of registration of pledge of equity interests. Parties agree to fully cooperate and sign any additional documents to complete the registration of the pledge contemplated in this Agreement. Party B shall prepare and submit all the forms and applications for the registration of the pledge and this Agreement pursuant to the requirements of the laws and regulations of Thailand. |
[Remainder of Page Intentionally Blank]
(Signature Page to Equity Pledge Agreement)
IN WITNESS THEREOF, each Party has signed or caused its legal representative to sign this Agreement as of the date first written above.
| Party A: One Belt One Network Holdings Limited | |||
| /s/Wai Hok Fung | [Seal] | ||
| By: | Wai Hok Fung | ||
| Director | |||
| Party B: Wanee Watcharakangka | |||
| /s/ Wanee Watcharakangka | |||
| By: Wanee Watcharakangka | |||
| Party C: OBON Corporation Company Limited | |||
| /s/ Ratanaphon Wongnapachant | [Seal] | ||
| By: | Ratanaphon Wongnapachant | ||
| Director | |||
Exhibit 10.5
AMENDMENT TO EXCLUSIVE PURCHASE OPTION AGREEMENT
This AMENDMENT TO EXCLUSIVE PURCHASE OPTION AGREEMENT (this “Amendment”) is made as of this 30th day of October, 2019 (the “Effective Date”), by and among:
|
Party A: |
One Belt One Network Holdings Limited, with registered address at Vistra Corporate Service Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands, VG1110; and |
| Party B: | Ratanaphon Wongnapachant, at No. 8/5 Soi Patanakarn 30, Patanakarn Road, Suan Luang Sub-District, Suan Luang District, Bangkok, Thailand; and |
| Party C: | OBON Corporation Company Limited, with registered address at 121/34, Ratchadaphisek Road, Din Daeng Sub-district, din Daeng District, Bangkok, Thailand. |
Party A, Party B and Party C individually being referred to as a “Party” and collectively the “Parties”
WHEREAS, Parties entered into an Exclusive Purchase Option Agreement on June 4, 2019 (the “Agreement”); and
WHEREAS, Parties desire to amend the Agreement to correct the share numbers owned by Party B in the Party C and his ownership percentage of the Party C as of the date of the Agreement; and
WHEREAS, capitalized terms in this Amendment that are not otherwise defined have the meanings given those terms in the Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows:
1. The Item 1 under Whereas shall be amended and restated in its entirety to read as follows:
Party C is a company duly incorporated and validly existing under the laws of Thailand. Party B has an holding of 98,000 shares of Party C, being 98% of the outstanding shares in Party C as of the date of the Agreement; and
2. Except as expressly amended hereby, the Agreement continues in full force and effect.
[signature page follows]
(Signature Page to the Amendment to Exclusive Purchase Option Agreement)
IN WITNESS THEREOF, each Party has signed or caused its authorized representative to sign this Amendment as of the date first written above.
| Party A: One Belt One Network Holdings Limited | |||
| /s/ Wai Hok Fung | [Seal] | ||
| By: | Wai Hok Fung | ||
| Director | |||
| Party B: Ratanaphon Wongnapachant | |||
| /s/ Ratanaphon Wongnapachant | |||
| By: | Ratanaphon Wongnapachant | ||
| Party C: OBON Corporation Company Limited | |||
| /s/ Ratanaphon Wongnapachant | [Seal] | ||
| By: | Ratanaphon Wongnapachant | ||
| Director | |||
Exhibit 10.6
AMENDMENT TO Equity Pledge Agreement
This AMENDMENT TO EQUITY PLEDGE AGREEMENT (this “Amendment”) is made as of this 30th day of October, 2019 (the “Effective Date”), by and among:
| Party A: | One Belt One Network Holdings Limited, with registered address at Vistra Corporate Service Centre, Wickhams Cay II, Road Town, Tortola, British Virgin Islands, VG1110; and |
| Party B: | Ratanaphon Wongnapachant, at No. 8/5 Soi Patanakarn 30, Patanakarn Road, Suan Luang Sub-District, Suan Luang District, Bangkok, Thailand |
|
Party C: |
OBON Corporation Company Limited, with registered address at 121/34, Ratchadaphisek Road, Din Daeng Sub-district, din Daeng District, Bangkok, Thailand. |
(Party B is referred to as “Pledgor” hereinafter; Party A is referred to as “Pledgee” hereinafter; and either the Pledgors or the Pledgee is individually referred to as a “Party” and collectively referred to as the “Parties”.)
WHEREAS, Parties entered into an Equity Pledge Agreement on June 4, 2019 (the “Agreement”); and
WHEREAS, Parties desire to amend the Agreement to correct the issued share numbers of Thai Company and shares owned by the Pledgor in the Thai Company as of the date of the Agreement; and
WHEREAS, capitalized terms in this Amendment that are not otherwise defined have the meanings given those terms in the Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows:
| 1. | The Item 1 under Whereas shall be amended and restated in its entirety to read as follows: |
OBON Corporation Company Limited (“Thai Company”) is a company duly incorporated and validly existing under the laws of Thailand with the registered share capital of 1,000,000 Baht, divided into 100,000 shares as of the date of the Agreement.
| 2. | The Item 2 under Whereas shall be amended and restated in its entirety to read as follows: | |
| The Pledgor holds 98,000 shares of Thai Company (the “Shares”) as of the date of the Agreement. |
| 2. | Except as expressly amended hereby, the Agreement continues in full force and effect. |
[signature page follows]
(Signature Page to the Amendment to Equity Pledge Agreement)
IN WITNESS THEREOF, each Party has signed or caused its authorized representative to sign this Amendment as of the date first written above.
| Party A: One Belt One Network Holdings Limited | |||
| /s/Wai Hok Fung | [Seal] | ||
| By: | Wai Hok Fung | ||
| Director | |||
| Party B: Pledgor | |||
| /s/ Ratanaphon Wongnapachant | |||
| By: | Ratanaphon Wongnapachant | ||
| Party C: OBON Corporation Company Limited | |||
| /s/ Ratanaphon Wongnapachant | [Seal] | ||
| By: | Ratanaphon Wongnapachant | ||
| Director | |||