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 of 1934
Date of Report (Date
of earliest event reported): January 8, 2018 (December 18, 2017)
Moxian, Inc.
(Exact name of registrant as specified in its
charter)
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Nevada
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000-55017
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27-3729742
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(state or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer
Identification Number)
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Block A, 9/F, Union
Plaza, 5022 Binjiang Avenue, Futian District,
Shenzhen City, Guangdong
Province, China
(address of principal
executive offices) (zip code)
Tel: +86 (0)755-66803251
(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):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth
company as defined in 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
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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.
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Item 1.01
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Entry into a Material Definitive Agreement
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On December 18, 2017, the Moxian, Inc. ("Moxian" or the
"Company") entered into a Tripartite Agreement (the "Tripartite Agreement") with Zhang Guo Hui and Guan Fen
Sheng (together the "Original Moyi Shareholders") and Liu Shu Juan and Yin Yi Jun (together the "New Moyi Shareholders")
of Shenzhen Moyi Technologies Co. Ltd. ("Moyi") whereby the Company consented to the transfer of the equity interests
of Moyi and all related rights, liabilities and obligations under the Moyi Agreements (as defined below) such that the new shareholders
stand in place of the old shareholders in all aspects of the Moyi Agreements.
Moyi, which is owned solely by Chinese shareholders, has been granted
an Internet Content Provider ("ICP") license. Businesses in China that are engaged in the business of Internet information
services, including online advertisement and e-commerce services, are required to maintain an ICP license. Due to Chinese regulatory
restrictions on foreign investments in the Internet sector, the Company and its subsidiary Moxian Shenzhen ("Moxian Shenzhen") entered into the Exclusive Business Cooperation Agreement, Share Pledge Agreement, the Power
of Attorney and the Exclusive Option Agreement ("Moyi Agreements") with Moyi and the Original Moyi Shareholders on July
15, 2014.
Under the Moyi Agreements, Moyi is be treated as a variable interest
entity in which the Company does not have direct or controlling equity interest but the historical financial results of such entity
will be consolidated in the financial statements in accordance with U.S. generally accepted accounting principles ("U.S.
GAAP").
Due to the transfer of interests from the Original Moyi Shareholders
to the New Moyi Shareholders, the Company's Board of Directors determined that it was appropriate to terminate such Moyi Agreements
as the Original Moyi Agreements had executed and to execute substantially similar Moyi Agreements with the New Moyi Shareholders.
Because the Exclusive Business Cooperation Agreement did not include the Original Moyi Shareholders as a party, it has not been
terminated. The Share Pledge Agreement, Power of Attorney and Exclusive Option Agreement were officially terminated as to the
Original Moyi Shareholders as of January 8, 2018 and new Share Pledge Agreement, Power of Attorney and Exclusive Option Agreement
were entered into with the New Moyi Shareholders at the same date. The parties' intent throughout has been to maintain control
of Moyi by Moxian Shenzhen and, by extension, the Company.
Exclusive Option Agreement
. Pursuant to the Exclusive Option
Agreement among Moxian Shenzhen, Moyi and the New Moyi Shareholders, Moxian Shenzhen or its designee has an exclusive option to
purchase from the New Moyi Shareholders, to the extent permitted under the laws of the PRC, all or a portion of their equity interest
in Moyi, on one or more occasions, at the price of RMB 10 (or approximately $1.62) per share, or such other price based on an
appraisal if such appraisal is required by the laws of PRC. Moyi and the New Moyi Shareholders also agreed that, no person, other
than Moxian Shenzhen and its designee, has the right to purchase any of the equity interest of Moyi. Moyi and the New Moyi Shareholders
undertake not to effect major corporate changes, including, amending its articles of association or bylaws, changing its registered
capital, declaring dividends, or enter into any major transaction in relation to Moyi, including, the transfer of any of its business,
material assets, or equity interests to any third party, incurring debts other than in the ordinary course of business, executing
any major contract, or making investments in or acquiring a third party, without the prior written approval of Moxian Shenzhen.
The initial term of this agreement is 10 years, which may be renewed by Moxian Shenzhen in its sole discretion.
Equity Pledge Agreement
. Pursuant to the Share Pledge Agreement
among Moxian Shenzhen and the New Moyi Shareholders, the New Moyi Shareholders pledged all of their equity interests in Moyi to
Moxian Shenzhen, to secure the performance of obligations by themselves and Moyi under the agreements described above. Under this
agreement, the New Moyi Shareholders may not transfer or dispose of their equity interest in Moyi, without Moxian Shenzhen's prior
written consent. The equity pledge agreement will be registered with the relevant office of the Administration for Industry and
Commerce in China.
Power of Attorney
. Pursuant to the Powers of Attorney, the
New Moyi Shareholders respectively granted irrevocable authority to Moxian Shenzhen, to exercise all their rights as a shareholder
of Moyi, including the right to attend and vote at shareholders' meetings and appoint directors. The New Moyi Shareholders also
authorized Moxian Shenzhen to take necessary actions, on their behalf, to effect the transactions contemplated by the Equity Pledge
Agreement and Exclusive Option Agreement. The New Moyi Shareholders agreed not to grant the same authority under the Powers of
Attorney to any other person, without Moxian Shenzhen's prior written consent.
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Item 1.02
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Termination of a Material Definitive Agreement
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The Registrant incorporates the discussion above in Item 1.01 in
this Item 1.02.
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.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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MOXIAN, INC.
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Date: January 8, 2018
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By:
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/s/ Hao Qing Hu
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Name: Hao Qing Hu
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Title: Chief Executive Officer
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Exhibit 99.1
Tripartite
Agreement on Shareholder’s Undertaking of Obligation
Party A:
Moxian Technology (shenzhen)
Co., Ltd
Legal Representative:
Sun Dan Dan
Address:
Room 2313-2315, Tower B, Zhongshen Garden, Caitian South Road, Futian District, Shenzhen, China.
Party B1
: Zhang Guo Hui
ID NO.
: 152224198403087511
Address
:
No. 080565, Litang Street, Baoshi Village, Baoshi Town, Tuquan Country, Xinganmeng, Inner Mongolia, China.
Email:
Party B2
: Guan Fen Sheng
ID NO.
: 441702198605141018
Address
:
Room 2503, North Area, Hui Gang Ming Yuan, Binhe Avenue, Futian District, Shenzhen, China.
Email:
(Party B1 and Party B2, collectively as
“Party B”)
Party C1:
Liu Shu Juan
ID NO.
: 220203197103063040
Address
:
No. 6-3-22-117, Jiaye Garden, Jilin Avenue, Fengman District, Jilin City, Jilin Province, China.
Email:
Party C2:
Yin Yi Jun
ID NO.
: 31010519860823217
Address
:
Room 401, No.137, Xinjing 3
rd
Village, Changning District, Shanghai, China.
Email:
(Party C1 and Party C2, collectively as
“Party C”)
Each of Party A, Party B and Party C shall
be referred to as a “Party”, and they shall be collectively referred to as the “Parties”.
Whereas:
1. Party B holds 100%
of the equity interest in Shenzhen Moyi Technology Co., Ltd (as “Moyi”), among which Party B1 holds 70% of the said
equity interest and Party B2 holds 30% of the said equity interest.
2. Party A and Moyi
both agreed and established that Moyi as a variable interest entity (“VIE”) of Party A. Now Party B proposes to transfer
its 100% equity interest of Moyi to Party C, and Party A and Party C both agrees to the transfer of the said equity interest.
3. The Clause 1.1 of
the Exclusive Option Agreement which was signed on July 15, 2014 between Party A and Party B states that “Except for Party
A (Party A of this agreement) and its designee(s), no other person shall be entitled to the Equity Interest Purchase Option or
other rights with respect to the equity interests of Party B (Party B of this agreement). Party C (referred to Moyi ) hereby agrees
to the grant by Party B of the Equity Interests Purchase Option to Party A ”. And the Clause 2.2.1 of the Clause 2.2 warranties
that “without the prior written consent of Party A, Party B shall not sell, transfer, mortgage or dispose of in any other
manner any legal or beneficial interest in the equity interests in Party C held by Party B, or allow the encumbrance thereon of
any security interest, except for the pledge placed on these equity interests in accordance with Party B’s Share Pledge Agreement.”
4. Party A and Moyi
signed the Exclusive Business Cooperation Agreement on July 15, 2014. On the same day, Party A and Party B signed the Loan Agreement.
5. Party B1 and Party
B2 of Party B respectively irrevocably authorized Party A to conduct business on Party B’s behalf including but not limited
to attending shareholder meeting of Moyi, executing the rights of shareholders, appointing directors of board, supervisors and
senior officers.
The aforesaid Exclusive
Option Agreement, Exclusive Business Cooperation Agreement, Loan Agreement and Power of Attorney and other related legal files,
contracts and agreements collectively as “VIE Agreements”
On the basis of friendly
consultation and equal benefits, the parties agree as below:
1. Transfer of
Shares
1.1 Party A hereby agrees
Party B to transfer its 100% of equity interests of Moyi and all related rights, liabilities and obligations to Party C. Party
A, in accordance with the VIE Agreements, also agrees to send any corresponding notice (if any) to Party B and Party C and perform
the obligation under the VIE Agreements.
1.2 Party A agrees that
the purchase price of the equity interests by Party C shall be RMB 3 (see the legal files signed when equity interest rights assignment
for more details). If appraisal is required by the laws of China at the time when Party A exercise the Equity Interest Purchase
Option, the parties shall negotiate in good faith and base on the appraisal result make necessary adjustment to the Equity Interest
Purchase Price.
1.3 As Party B proposes
to transfer its 100% equity interests of Moyi, Party A agrees to assist Party B to complete this transfer and conduct the business
of holding shareholder meeting, making resolution of shareholder meeting; holding of meetings of the board of directors, making
resolution of the board of directors; supplementing, changing and amending necessary files including company’s articles of
association to effect the transfer of equity interests.
2. Equity Ratio
after the Assignment of Equity
Party A, Party B and
Party C unanimously confirms that the registered capital of the original shareholders of Moyi is RMB 10,000,000, details as below:
Shareholder name: Zhang
Guo Hui
Capital contribution:
RMB 7,000,000
Capital ratio: 70%
Form of capital: cash
Shareholder name: Guan
Fen Sheng
Capital contribution:
RMB 3,000,000
Capital ratio: 30%
Form of capital: cash
After the assignment,
the capital contribution of shareholders of Moyi is RMB 10,000,000, details as below:
Shareholder name: Liu
Shu Juan
Capital contribution:
RMB 9,900,000
Capital ratio: 99%
Form of capital: cash
Shareholder name: Yin
Yi Jun
Capital contribution:
RMB 100,000
Capital ratio: 1%
Form of capital: cash
3. Obligation Undertaking
3.1 Party C hereby unconditionally
agrees to accept all the rights, liabilities, obligations, representations and warranties under VIE Agreements between Party A
and Party B, including but not limited to:
(1) Without the prior
written consent of Party A or Party A’s designee(s), any third party cannot be entitled to the Equity Option Rights or any
other Party C related right.
(2) Without the prior
written consent of Party A, Party C shall not in any manner supplement, change or amend the articles of association and bylaws
of Moyi, increase or decrease its registered capital, or change its structure of registered capital in other manners.
(3) Without the prior
written consent of Party A, Party C shall not at any manner sell, transfer, pledge and in any other manner dispose any asset of
Moyi or legal or beneficial interest in the business or revenue of Moyi, or allow the encumbrance thereon of any security interest.
(4) Without the prior
written consent of Party A, Party C shall not incur, inherit, guarantee or suffer the existence of any debt, except for debts incurred
in the ordinary course of business other than through loans and debts disclosed to Party A for which Party A’s written consents
has been obtained.
(5) Party C shall pledge
its entire equity interests of Moyi to Party A guaranteeing that Moyi will perform the Exclusive Business Cooperation Agreements
signed between Party A and Moyi.
(6) Without the prior
written consent of Party A, Party C shall not in any manner distribute dividends to its shareholders.
(7) Party C shall ensure
Party A and Moyi continue to perform the Exclusive Business Cooperation Agreements.
(8) Party C shall perform
other liabilities, obligation, representation and warranties under VIE Agreements.
Except undertaking the
aforesaid obligations, Party C, accordance with laws and agreements, shall try its best effort to guarantee the normal and stable
operation of Moyi.
4. Governing Law
and Resolution of Disputes
4.1 The execution, effectiveness,
construction, performance, amendment and termination of this Agreement and resolution of dispute shall be governed by laws of China.
As for items not promulgated in the officially published laws of China, they shall be applicable to international standard and
exercise.
4.2 In the event of
any dispute with respect to the construction and performance of this Agreement, the parties shall first resolve the dispute through
friendly negotiations. In the event that the Parties have failed to reach an agreement on the dispute within 30 days after either
Party’s request to the other Party for resolution of the dispute through negotiations, either Party may submit the relevant
dispute to the China International Economic and Trade Arbitration Commission for arbitration, in accordance with its then effective
arbitration rules. The arbitration shall be conducted in Shenzhen, and the language used in arbitration shall be Chinese. The arbitration
award shall be final and binding on all Parties.
5. Notices
5.1 All the notices
and other communications required or permitted to be given pursuant to this Agreement shall be delivered personally or sent by
registered mail, postage prepaid, by a commercial courier service or by facsimile transmission to the address of such Party set
forth below. A confirmation copy of each notices shall also be sent by email. The dates on which notices shall be deemed to have
been effectively given shall be determined as follows:
(1) Notices given by
personal delivery, by courier service or by registered mail, postage prepaid, shall be deemed effectively given on the date of
delivery.
(2) Notices given by
facsimile transmission shall be deemed effectively give on the date of successful transmission (as evidenced by an automatically
generated confirmation of transmission).
5.2 In the event of
any party changes the address set forth in the first page, it shall inform other parties within three working days following the
date of change. Each party, according to this clause, sends notice to other parties for the change of address.
6. Miscellaneous
6.1 In the event that
one or several of the provision of this Agreement are found to be invalid, illegal or unenforceable in any aspect in accordance
with any laws or regulations, the validity, legality or enforceability of the remaining provisions of this Agreement shall not
be affected or compromised in any respect. The parties shall strive in good faith to replace such invalid, illegal or unenforceable
provisions with effective provisions that accomplish to the economic effect of such effective provisions shall be as possible to
the economic effect of those invalid, illegal or unenforceable provisions.
6.2 This Agreement shall
be effective on the date of signature of parties. The Agreement shall be executed in six copies, with each party of Party A, Party
B1, Party B2, Party C1, Party C2 and Moyi holding one copy. Each copy has equal legal effect.
Below is the signature page
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Party A (stamp): Moxian Technology (Shenzhen)
Co., Ltd
Legal Representative:
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Party B1 (signature):
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Party B2 (signature):
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Party C1 (signature):
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Party C2 (signature):
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Moyi Confirm:
Shenzhen Moyi Technology Co., Ltd (stamp)
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This Agreement is signed on _________________.
Exhibit 99.2
Stock Pledge Agreement
Party A (Pledgor):
Party A1: Miss Liu Shu Juan, Female, National
ID: 220203197103063040
Party A2: Mr. Yin Yu Jun, Male, National ID.:
31010519860823217
From Shenzhen Moyi Technology Co Ltd (Hereafter
“Moyi") and shareholders with 100% percentage.
Part B (Pledgee):
Moxian Technologies Shenzhen Co Ltd, at Block
A, 9/F Union Plaza, 5022 Binjiang Avenue, Futian District, Shenzhen City, Guangdong Province, China This stock pledge agreement
is signed on January 8, 2018 at Shenzhen City Futian District.
Signed:
1 Party B and Moyi signed an exclusive
cooperation agreement. To protect its interest, Party A agree to pledge 100% of its holdings in Moyi to Party B
2 Party B agree to accept such
stock pledge from Party A
In
accordance to the Peoples Republic China relevant laws and regulations, the principle of equality and mutual benefit parties to
the agreement, reached through friendly consultations are provided for abide by the following terms:
Clause 1: Warranty Obligations
The pledge of stock shall ensure Moyi (and
or its shareholder) to fulfill its obligations to cooperate with the Party B exclusive business agreement and related agreements
under. In the breach of agreement, Party B has the right to take ownership of the pledged shares or any other rights derived from
law.
Clause 2 Pledge
The property being pledged refers to the 100%
stake that Party A holds in Moyi.
Clause 3 Scope of guarantee
This agreement shall only be read together
with all the other agreements signed between the Parties, including but not excluding, the exclusive cooperation agreement and
interest conferred to Party B
Clause 4 Pledgor Representation
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1)
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The pledgor
is a legitimate holder of the shares and has the right to confer such pledge
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2)
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Before signing
this contract, the pledgor represents that she did not pledge the pledged property to
any third party and this property has not been frozen by a court of law nor does it have
any conditions that might cause an adverse effect to the pledge;
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3)
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Unless with
the written prior concert of the pledgee, the pledgor shall not transfer or take any
action that will affect his ownership in the pledged stock.
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Clause 5 Pledge Process and Registration
Five days within the execution of this agreement,
the parties shall go to the Shenzhen City of Companies Registrar Department to process the stock pledge in accordance to the laws
of People Republic of China.
Clause 6 Pledged Stock and Transfer
Without the written consent from Party B,
Party A is not allowed to transfer the stock to a third party.
Clause 7. This agreement shall be signed by
each party, and shall take effect after the signatory and registration of pledge with the registrar.
Clause 8 Applicable Law
The effectiveness, validity, interpretation
and performance of this agreement and any dispute arising from this agreement shall be governed by the laws of the People Republic
of China.;
Clause 9 Breach of Agreement
After the commencement of this agreement,
the parties shall implement the obligations stipulated under this agreement. Failure to do so would be deemed a breach, whether
from an individual or as a whole, should be regarded as breach of contract, the breaching party shall compensate to the non-breaching
party any loss arising from the breach.
Clause 10 Dispute Resolution
For any dispute arising in this contract shall
be resolved through friendly consultations first, unsuccessful negotiations, either party shall have the right to submit the dispute
to the South China International Economic and Trade Arbitration Commission ruled that the place of arbitration is in Shenzhen.
The arbitral award is final and binding on the parties.
Clause 11 Others
This agreement shall be executed in five.
Both Party A and B shall keep a copy, Moyi shall keep a copy and the other copy shall be used at Company Registrar for the registration
of the pledge.
(There is no text below)
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Signature
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Party A
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Liu Shu Juan:
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Yin Yi Jun:
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Party B
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Moxian Technologies (Shenzhen) Co. Ltd
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Company Stamp:
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Exhibit 99.3.1
Power of Attorney
I, Liu Shu Juan, a Chinese citizen
with Chinese Identification Card No.: 220203197103063040, and a holder of 99% of the entire registered capital in Shenzhen Moyi
Technologies Co. Ltd, ("Shenzhen Moyi Technologies Co. Ltd") ("My Shareholding"), hereby irrevocably authorize
Moxian Technologies (Shenzhen) Co. Ltd ("WOFE") to exercise the following rights relating to My Shareholding during
the term of this Power of Attorney:
WOFE is hereby
authorized to act on behalf of myself as my exclusive agent and attorney with respect to all matters concerning My Shareholding,
including without limitation to: 1) attend shareholders' meetings of Moyi; 2) exercise all the shareholder’s rights and
shareholder's voting rights I am entitled to under the laws of China and Moyi's Articles of Association, including but not limited
to the sale or transfer or pledge or disposition of My Shareholding in part or in whole; and 3) designate and appoint on behalf
of myself the legal representative (chairperson), the director, supervisor, the chief executive officer and other senior management
members of Moyi.
Without limiting
the generality of the powers granted hereunder, WOFE shall have the power and authority under this Power of Attorney to execute
the Transfer Contracts stipulated in Exclusive Option Agreement, to which I am required to be a party, on behalf of myself, and
to effect the terms of the Share Pledge Agreement and Exclusive Option Agreement, both dated the date hereof, to which I am a
party.
All the actions
associated with My Shareholding conducted by WOFE shall be deemed as my own actions, and all the documents related to My Shareholding
executed by WOFE shall be deemed to be executed by me. I hereby acknowledge and ratify those actions and/or documents by WOFE.
WOFE is entitled
to re-authorize or assign its rights related to the aforesaid matters to any other person or entity at its own discretion and
without giving prior notice to me or obtaining my consent.
This Power of Attorney
is coupled with an interest and shall be irrevocable and continuously valid from the date of execution of this Power of Attorney,
so long as I am a shareholder of Moyi.
During the term
of this Power of Attorney, I hereby waive all the rights associated with My Shareholding, which have been authorized to WOFE through
this Power of Attorney, and shall not exercise such rights by myself.
This Power of Attorney
is written in Chinese and English; in case there is any conflict between the Chinese version and the English version, the Chinese
version shall prevail.
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Liu Shu Juan
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By:
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January 8, 2018
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Exhibit 99.3.2
Power of Attorney
I, Yin Yi Jun, a Chinese citizen with
Chinese Identification Card No.: 31010519860823217, and a holder of 1% of the entire registered capital in Shenzhen Moyi Technologies
Co. Ltd, ("Shenzhen Moyi Technologies Co. Ltd") ("My Shareholding"); hereby irrevocably authorize Moxian Technologies
(Shenzhen) Co. Ltd ("WOFE") to exercise the following rights relating to My Shareholding during the term of this Power
of Attorney;
WOFE is hereby
authorized to act on behalf of myself as my exclusive agent and attorney with respect to all matters concerning My Shareholding,
including without limitation to: 1) attend shareholders' meetings of Moyi; 2) exercise all the shareholder’s rights and
shareholder’s voting rights I am entitled to under the laws of China and Moyi's Articles of Association, including but not
limited to the sale or transfer or pledge or disposition of My Shareholding in part or in whole; and 3) designate and appoint
on behalf of myself the legal representative (chairperson), the director, supervisor, the chief executive officer and other senior
management members of Moyi.
Without limiting
the generality of the powers granted hereunder, WOFE shall have the power and authority under this Power of Attorney to execute
the Transfer Contracts stipulated in Exclusive Option Agreement, to which I am required to be a party, on behalf of myself, and
to effect the terras of the Share Pledge Agreement and Exclusive Option Agreement, both dated the date hereof, to which I am a
party.
All the actions
associated with My Shareholding conducted by WOFE shall be deemed as my own actions, and all the documents related to My Shareholding
executed by WOFE shall be deemed to be executed by me. I hereby acknowledge and ratify those actions and/or documents by WOFE.
WOFE is entitled
to re-authorize or assign its rights related to the aforesaid matters to any other person or entity at its own discretion and
without giving prior notice to me or obtaining my consent.
This Power of Attorney
is coupled with an interest and shall be irrevocable and continuously valid from the date of execution of this Power of Attorney,
so long as I am a shareholder of Moyi.
During the term
of this Power of Attorney, I hereby waive all the rights associated with My Shareholding, which have been authorized to WOFE through
this Power of Attorney, and shall not exercise such rights by myself.
This Power of Attorney
is written in Chinese and English; in case there is any conflict between the Chinese version and the English version, the Chinese
version shall prevail.
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Yin Yi Jun
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By:
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January 8, 2018
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Exhibit 99.4
First Amended and Restated
Exclusive Option Agreement
This First Amended and
Restated Exclusive Option Agreement (this "Agreement") is executed by and among the following Parties as of the 8
day of January, 2018 in Shenzhen City, the People’s Republic of China (“China” or the “PRC”):
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Party
A:
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Moxian
Technologies (Shenzhen) Co. Ltd, a Wholly Foreign Owned Enterprise, organized and existing under the laws of the PRC, with
its address at Block A, 9/F Union Plaza, 5022 Binjiang Avenue, Futian District, Shenzhen City, Guangdong Province, China.
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Party
B:
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Miss Liu Shu Juan, a Chinese citizen
with Chinese Identification No.: 220203197103063040; and
Mr. Yin Yi Jun, a Chinese citizen
with Chinese Identification No.: 31010519860823217
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Party
C:
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Shenzhen
Moyi Technologies Co. Ltd, a limited liability company organized and existing under the laws of the PRC, with its address
at Block A, 9/F Union Plaza, 5022 Binjiang Avenue, Futian District, Shenzhen City, Guangdong Province, China
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In this Agreement, each
of Party A, Party B and Party C shall be referred to as a "Party" respectively, and they shall be collectively referred
to as the "Parties".
Whereas: Party B holds 100%
of the equity interest in Party C.
Now therefore, upon mutual
discussion and negotiation, the Parties have reached the following agreement:
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1.
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Sale
and Purchase of Equity Interest
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In consideration of the payment
of RMB 100,000 by Party A to Zhang Guo Hui and Guan Fen Sheng, the prior shareholders of Party C, the receipt and adequacy of
which is hereby acknowledged by Party B, Party B hereby acknowledges and confirms the irrevocable grant by such prior shareholders
to Party A an irrevocable and exclusive right to purchase, or designate one or more persons (each, a "Designee") to
purchase the equity interests in Party C then held by Party B once or at multiple times at any time in part or in whole at Party
A's sole and absolute discretion to the extent permitted by Chinese laws and at the price described in Section 1.3 herein (such
right being the "Equity Interest Purchase Option"). Except for Party A and the Designee(s), no other person shall be
entitled to the Equity Interest Purchase Option or other rights with respect to the equity interests of Party B. Party C hereby
agrees to the grant by Party B of the Equity Interest Purchase Option to Party A. The term "person" as used herein shall
refer to individuals, corporations, partnerships, partners, enterprises, trusts or non-corporate organizations.
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|
1.2
|
Steps
for Exercise of Equity Interest Purchase Option
|
Subject to the provisions of the
laws and regulations of China, Party A may exercise the Equity Interest Purchase Option by issuing a written notice to Party B
(the "Equity Interest Purchase Option Notice"), specifying: (a) Party A's decision to exercise the Equity Interest Purchase
Option; (b) the portion of equity interests to be purchased from Party B (the "Optioned Interests"); and (c) the date
for purchasing the Optioned Interests and/or the date for transfer of the Optioned Interests.
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|
1.3
|
Equity
Interest Purchase Price
|
The purchase price of the Optioned
Interests (the "Base Price") shall be RMB 10. If appraisal is required by the laws of China at the time when Party A
exercises the Equity Interest Purchase Option, the Parties shall negotiate in good faith and based on the appraisal result make
necessary adjustment to the Equity Interest Purchase Price so that it complies with any and all then applicable laws of China
(collectively, the "Equity Interest Purchase Price").
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1.4
|
Transfer
of Optioned Interests
|
For each exercise of the Equity
Interest Purchase Option:
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|
1.4.1
|
Party
B shall cause Party C to promptly convene a shareholders’ meeting, at which a resolution shall be adopted approving
Party B's transfer of the Optioned Interests to Party A and/or the Designee(s);
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|
|
1.4.2
|
Party
B shall obtain written statements from the other shareholders of Party C giving consent to the transfer of the equity interest
to Party A and/or the Designee(s) and waiving any right of first refusal related thereto.
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|
|
1.4.3
|
Party
B shall execute a share transfer contract with respect to each transfer with Party A and/or each Designee (whichever is applicable),
in accordance with the provisions of this Agreement and the Equity Interest Purchase Option Notice regarding the Optioned
Interests;
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|
|
1.4.4
|
The
relevant Parties shall execute all other necessary contracts, agreements or documents, obtain all necessary government licenses
and permits and take all necessary actions to transfer valid ownership of the Optioned Interests to Party A and/or the Designee(s),
unencumbered by any security interests, and cause Party A and/or the Designee(s) to become the registered owner(s) of the
Optioned Interests. For the purpose of this Section and this Agreement, "security interests" shall include securities,
mortgages, third party's rights or interests, any stock options, acquisition right, right of first refusal, right to offset,
ownership retention or other security arrangements, but shall be deemed to exclude any security interest created by this Agreement
and Party B's Share Pledge Agreement. "Party B's Share Pledge Agreement" as used in this Section and this Agreement
shall refer to the Share Pledge Agreement ("Share Pledge Agreement") executed by and among Party A, Party B and
Party C as of the date hereof, whereby Party B pledges all of its equity interests in Party C to Party A, in order to guarantee
Party C's performance of its obligations under the Exclusive Business Corporation Agreement executed by and between Party
C and Party A.
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|
|
2.1
|
Covenants
regarding Party C
|
Party B (as the shareholders of
Party C) and Party C hereby covenant as follows:
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|
2.1.1
|
Without
the prior written consent of Party A, they shall not in any manner supplement, change or amend the articles of association
and bylaws of Party C, increase or decrease its registered capital, or change its structure of registered capital in other
manners;
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|
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2.1.2
|
They
shall maintain Party C's corporate existence in accordance with good financial and business standards and practices by prudently
and effectively operating its business and handling its affairs;
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|
|
2.1.3
|
Without
the prior written consent of Party A, they shall not at any time following the date hereof, sell, transfer, mortgage or dispose
of in any manner any assets of Party C or legal or beneficial interest in the business or revenues of Party C, or allow the
encumbrance thereon of any security interest;
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|
|
2.1.4
|
Without
the prior written consent of Party A, they shall not incur, inherit, guarantee or suffer the existence of any debt, except
for (i) debts incurred in the ordinary course of business other than through loans; and (ii) debts disclosed to Party A for
which Party A's written consent has been obtained;
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|
|
2.1.5
|
They
shall always operate all of Party C's businesses during the ordinary course of business to maintain the asset value of Party
C and refrain from any action/omission that may affect Party C's operating status and asset value;
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|
|
2.1.6
|
Without
the prior written consent of Party A, they shall not cause Party C to execute any major contract, except the contracts in
the ordinary course of business (for purpose of this subsection, a contract with a price exceeding RMB500,000 shall be deemed
a major contract);
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|
|
2.1.7
|
Without
the prior written consent of Party A, they shall not cause Party C to provide any person with any loan or credit;
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|
2.1.8
|
They
shall provide Party A with information on Party C's business operations and financial condition at Party A's request;
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|
|
2.1.9
|
If
requested by Party A, they shall procure and maintain insurance in respect of Party C's assets and business from an insurance
carrier acceptable to Party A, at an amount and type of coverage typical for companies that operate similar businesses;
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|
|
2.1.10
|
Without
the prior written consent of Party A, they shall not cause or permit Party C to merge, consolidate with, acquire or invest
in any person;
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|
|
2.1.11
|
They
shall immediately notify Party A of the occurrence or possible occurrence of any litigation, arbitration or administrative
proceedings relating to Party C's assets, business or revenue;
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|
|
2.1.12
|
To
maintain the ownership by Party C of all of its assets, they shall execute all necessary or appropriate documents, take all
necessary or appropriate actions and file all necessary or appropriate complaints or raise necessary and appropriate defenses
against all claims;
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|
|
2.1.13
|
Without
the prior written consent of Party A, they shall ensure that Party C shall not in any manner distribute dividends to its shareholders,
provided that upon Party A's written request, Party C shall immediately distribute all distributable profits to its shareholders;
and
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|
|
2.1.14
|
At
the request of Party A, they shall appoint any persons designated by Party A as directors of Party C.
|
Party B hereby covenants as follows:
|
|
2.2.1
|
Without
the prior written consent of Party A, Party B shall not sell, transfer, mortgage or dispose of in any other manner any legal
or beneficial interest in the equity interests in Party C held by Party B, or allow the encumbrance thereon of any security
interest, except for the pledge placed on these equity interests in accordance with Party B's Share Pledge Agreement;
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|
|
2.2.2
|
Party
B shall cause the shareholders' meeting and/or the board of directors of Party C not to approve the sale, transfer, mortgage
or disposition in any other manner of any legal or beneficial interest in the equity interests in Party C held by Party B,
or allow the encumbrance thereon of any security interest, without the prior written consent of Party A, except for the pledge
placed on these equity interests in accordance with Party B's Share Pledge Agreement;
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|
|
2.2.3
|
Party
B shall cause the shareholders' meeting or the board of directors of Party C not to approve the merger or consolidation with
any person, or the acquisition of or investment in any person, without the prior written consent of Party A;
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|
|
2.2.4
|
Party
B shall immediately notify Party A of the occurrence or possible occurrence of any litigation, arbitration or administrative
proceedings relating to the equity interests in Party C held by Party B;
|
|
|
2.2.5
|
Party
B shall cause the shareholders' meeting or the board of directors of Party C to vote their approval of the transfer of the
Optioned Interests as set forth in this Agreement and to take any and all other actions that may be requested by Party A;
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|
|
2.2.6
|
To
the extent necessary to maintain Party B's ownership in Party C, Party B shall execute all necessary or appropriate documents,
take all necessary or appropriate actions and file all necessary or appropriate complaints or raise necessary and appropriate
defenses against all claims;
|
|
|
2.2.7
|
Party
B shall appoint any designee of Party A as director of Party C, at the request of Party A;
|
|
|
2.2.8
|
At
the request of Party A at any time, Party B shall promptly and unconditionally transfer its equity interests in Party C to
Party A's Designee(s) in accordance with the Equity Interest Purchase Option under this Agreement, and Party B hereby waives
its right of first refusal to the respective share transfer by the other existing shareholder of Party C (if any); and
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|
|
2.2.9
|
Party
B shall strictly abide by the provisions of this Agreement and other contracts jointly or separately executed by and among
Party B, Party C and Party A, perform the obligations hereunder and thereunder, and refrain from any action/omission that
may affect the effectiveness and enforceability thereof. To the extent that Party B has any remaining rights with respect
to the equity interests subject to this Agreement hereunder or under the Share Pledge Agreement among the same parties hereto
or under the Power of Attorney granted in favor of Party A, Party B shall not exercise such rights except in accordance with
the written instructions of Party A.
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|
3.
|
Representations
and Warranties
|
Party B and Party C hereby represent
and warrant to Party A, jointly and severally, as of the date of this Agreement and each date of transfer of the Optioned Interests,
that:
|
|
3.1
|
They
have the authority to execute and deliver this Agreement and any share transfer contracts to which they are parties concerning
the Optioned Interests to be transferred thereunder (each, a "Transfer Contract"), and to perform their obligations
under this Agreement and any Transfer Contracts. Party B and Party C agree to enter into Transfer Contracts consistent with
the terms of this Agreement upon Party A’s exercise of the Equity Interest Purchase Option. This Agreement and the Transfer
Contracts to which they are parties constitute or will constitute their legal, valid and binding obligations and shall be
enforceable against them in accordance with the provisions thereof;
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|
|
3.2
|
The
execution and delivery of this Agreement or any Transfer Contracts and the obligations under this Agreement or any Transfer
Contracts shall not: (i) cause any violation of any applicable laws of China; (ii) be inconsistent with the articles of association,
bylaws or other organizational documents of Party C; (iii) cause the violation of any contracts or instruments to which they
are a party or which are binding on them, or constitute any breach under any contracts or instruments to which they are a
party or which are binding on them; (iv) cause any violation of any condition for the grant and/or continued effectiveness
of any licenses or permits issued to either of them; or (v) cause the suspension or revocation of or imposition of additional
conditions to any licenses or permits issued to either of them;
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|
|
3.3
|
Party
B has a good and merchantable title to the equity interests in Party C he holds. Except for Party B's Share Pledge Agreement,
Party B has not placed any security interest on such equity interests;
|
|
|
3.4
|
Party
C has a good and merchantable title to all of its assets, and has not placed any security interest on the aforementioned assets;
|
|
|
3.5
|
Party
C does not have any outstanding debts, except for (i) debt incurred in the ordinary course of business; and (ii) debts disclosed
to Party A for which Party A's written consent has been obtained.
|
|
|
3.6
|
Party
C has complied with all laws and regulations of China applicable to asset acquisitions; and
|
|
|
3.7
|
There
are no pending or threatened litigation, arbitration or administrative proceedings relating to the equity interests in Party
C, assets of Party C or Party C.
|
This Agreement shall become effective
upon the date hereof, and remain effective for a term of 10 years, and may be renewed at Party A's election.
|
5.
|
Governing
Law and Resolution of Disputes
|
The execution, effectiveness, construction,
performance, amendment and termination of this Agreement and the resolution of disputes hereunder shall be governed by the formally
published and publicly available laws of China. Matters not covered by formally published and publicly available laws of China
shall be governed by international legal principles and practices.
|
|
5.2
|
Methods
of Resolution of Disputes
|
In the event of any dispute with
respect to the construction and performance of this Agreement, the Parties shall first resolve the dispute through friendly negotiations.
In the event the Parties fail to reach an agreement on the dispute within 30 days after either Party's request to the other Parties
for resolution of the dispute through negotiations, either Party may submit the relevant dispute to the China International Economic
and Trade Arbitration Commission for arbitration, in accordance with its Arbitration Rules. The arbitration shall be conducted
in ShenZhen, and the language used in arbitration shall be Chinese. The arbitration award shall be final and binding on all Parties.
Each Party shall pay any and all
transfer and registration tax, expenses and fees incurred thereby or levied thereon in accordance with the laws of China in connection
with the preparation and execution of this Agreement and the Transfer Contracts, as well as the consummation of the transactions
contemplated under this Agreement and the Transfer Contracts.
|
|
7.1
|
All
notices and other communications required or permitted to be given pursuant to this Agreement shall be delivered personally
or sent by registered mail, postage prepaid, by a commercial courier service or by facsimile transmission to the address of
such Party set forth below. A confirmation copy of each notice shall also be sent by email. The dates on which notices shall
be deemed to have been effectively given shall be determined as follows:
|
|
|
7.1.1
|
Notices
given by personal delivery, by courier service or by registered mail, postage prepaid, shall be deemed effectively given on
the date of delivery or refusal at the address specified for notices.
|
|
|
7.1.2
|
Notices
given by facsimile transmission shall be deemed effectively given on the date of successful transmission (as evidenced by
an automatically generated confirmation of transmission).
|
|
|
7.2
|
For
the purpose of notices, the addresses of the Parties are as follows:
|
|
|
Party
A:
|
Moxian Technologies (Shenzhen) Co. Ltd
|
|
|
Address:
|
Block
A, 9/F Union Plaza, 5022 Binjiang Avenue, Futian District, Shenzhen City, Guangdong Province, China
|
|
|
Phone:
|
0755 - 6681 3984
|
|
|
Party
B:
|
Miss
Liu Shu Juan and Mr. Yin Yi Jun
|
|
|
Address:
|
Block
A, 9/F Union Plaza, 5022 Binjiang Avenue, Futian District, Shenzhen City, Guangdong Province, China
|
|
|
|
|
|
|
Party
C:
|
Shenzhen
Moyi Technologies Co. Ltd
|
|
|
Address:
|
Block
A, 9/F Union Plaza, 5022 Binjiang Avenue, Futian District, Shenzhen City, Guangdong Province, China
|
|
|
7.3
|
Any
Party may at any time change its address for notices by a notice delivered to the other Parties in accordance with the terms
hereof.
|
The Parties acknowledge that the
existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with
the preparation and performance this Agreement are regarded as confidential information. Each Party shall maintain confidentiality
of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any
relevant confidential information to any third parties, except for the information that: (a) is or will be in the public domain
(other than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant
to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or
(c) is required to be disclosed by any Party to its shareholders, investors, legal counsels or financial advisors regarding the
transaction contemplated hereunder, provided that such shareholders, investors, legal counsels or financial advisors shall be
bound by the confidentiality obligations similar to those set forth in this Section. Disclosure of any confidential information
by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party,
which Party shall be held liable for breach of this Agreement. This Section shall survive the termination of this Agreement for
any reason.
The Parties agree to promptly execute
documents that are reasonably required for or are conducive to the implementation of the provisions and purposes of this Agreement
and take further actions that are reasonably required for or are conducive to the implementation of the provisions and purposes
of this Agreement.
|
|
10.1
|
Amendment,
change and supplement
|
Any amendment, change and supplement
to this Agreement shall require the execution of a written agreement by all of the Parties.
Except for the amendments, supplements
or changes in writing executed after the execution of this Agreement, this Agreement shall constitute the entire agreement reached
by and among the Parties hereto with respect to the subject matter hereof, and shall supercede all prior oral and written consultations,
representations and contracts reached with respect to the subject matter of this Agreement.
The headings of this Agreement
are for convenience only, and shall not be used to interpret, explain or otherwise affect the meanings of the provisions of this
Agreement.
This Agreement is written in both
Chinese and English language in three copies, each Party having one copy with equal legal validity; in case there is any conflict
between the Chinese version and the English version, the Chinese version shall prevail.
In the event that one or several
of the provisions of this Agreement are found to be invalid, illegal or unenforceable in any aspect in accordance with any laws
or regulations, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected or
compromised in any respect. The Parties shall strive in good faith to replace such invalid, illegal or unenforceable provisions
with effective provisions that accomplish to the greatest extent permitted by law and the intentions of the Parties, and the economic
effect of such effective provisions shall be as close as possible to the economic effect of those invalid, illegal or unenforceable
provisions.
This Agreement shall be binding
on and shall inure to the interest of the respective successors of the Parties and the permitted assigns of such Parties.
|
|
10.8.1
|
Any
obligations that occur or that are due as a result of this Agreement upon the expiration or early termination of this Agreement
shall survive the expiration or early termination thereof.
|
|
|
10.8.2
|
The
provisions of Sections 5, 7, 8 and this Section 10.8 shall survive the termination of this Agreement.
|
Any Party may waive the terms and
conditions of this Agreement, provided that such a waiver must be provided in writing and shall require the signatures of the
Parties. No waiver by any Party in certain circumstances with respect to a breach by other Parties shall operate as a waiver by
such a Party with respect to any similar breach in other circumstances.
IN WITNESS WHEREOF, the
Parties have caused their authorized representatives to execute this Exclusive Option Agreement as of the date first above written.
|
Party
A:
|
|
|
/s/
Moxian Technologies (Shenzhen) Co. Ltd
|
|
|
|
|
|
|
|
|
Party
B:
|
|
|
/s/
Liu Shu Juan
|
|
|
/s/
Yin Yi Jun
|
|
|
|
|
|
|
|
|
Party
C:
|
|
|
/s/
Shenzhen Moyi Technologies Co. Ltd
|
|