As
filed with the Securities and Exchange Commission on May 28, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
F-4
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MOXIAN
(BVI) INC
(Exact
name of Registrant as specified in its charter)
|
British
Virgin Islands
|
|
7370
|
|
Not
Applicable
|
|
(State
or other jurisdiction of
incorporation
or organization)
|
|
(Primary
Standard Industrial
Classification
Code Number)
|
|
(I.R.S.
Employer
Identification
Number)
|
Unit
911, Tower 2, Silvercord, 30 Canton Road
Tsimshatsui
Hong
Kong SAR, China
+852
2961 4888
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Campbells
Corporate Services (BVI) Limited
Floor
4, Banco Popular Building
Road
Town, Tortola VG1110
British
Virgin Islands
+1
(284) 494-2423
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Anthony
W. Basch, Esq.
Yan
(Natalie) Wang, Esq.
Kaufman
& Canoles, P.C.
Two
James Center, 14th Floor
1021
E. Cary St.
Richmond,
VA 23219
Tel:
(804) 771-5700
Facsimile:
(804) 771-5777
Approximate
date of commencement of proposed sale of the securities to the public: As soon as practicable after the effectiveness of this registration
statement and the satisfaction or waiver of all other conditions under the merger agreement described herein.
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
[ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange
Act Rule 13e-4(i) (Cross-Border Issue Tender Offer) [ ]
Exchange
Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) [ ]
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging
growth company [ ]
If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant
has elected not to use the extended transition period for comply with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of Securities Act. [ ]
CALCULATION
OF REGISTRATION FEE
|
Title of each class of securities
to be registered
|
|
Amount to be
registered(1)
|
|
|
Proposed maximum
offering
price per share
|
|
|
Proposed maximum
aggregate offering
price(2)
|
|
|
Amount of
registration fee(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ordinary Shares $0.001 par value
|
|
|
(1)
|
|
|
|
|
|
|
$
|
327,645,501.26
|
|
|
$
|
35,746.12
|
|
|
(1)
|
In
accordance with Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”), the number of
shares is not set forth herein. Pursuant to Rule 457(o), the registration fee has been computed on the basis of the maximum
aggregate offering price of all ordinary shares of Registrant expected to be issued upon completion of the merger of the Registrant,
a company limited by shares incorporated under the laws of the British Virgin Islands and wholly owned subsidiary of MOXIAN,
INC., a Nevada corporation (“Moxian Nevada”), with and into the Registrant.
|
|
(2)
|
Estimated
solely for purposes of calculation of the registration fee in accordance with Rule 457(c) and (f) of the Securities Act based
upon the product of: (i) 19,341,529 the maximum number of shares of Moxian Nevada common stock that may be exchanged
in the merger, multiplied by (ii) $16.94, the average of the high and low prices of shares of Moxian Nevada’s
common stock as reported on the Nasdaq Stock Market on May 26, 2021.
|
|
(3)
|
This
fee has been calculated under Section 6(b) of the Securities Act by multiplying the proposed maximum aggregate offering amount by
0.0001091.
|
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date
as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this proxy statement/prospectus is not complete and may be changed. We may not sell these securities or accept any offers
to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This proxy statement/prospectus
is not an offer to sell these securities and it is not soliciting an offer to buy these securities, nor shall there be any sale of these
securities, in any jurisdiction where such offer, solicitation or sale is not permitted or would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
PRELIMINARY
PROXY STATEMENT/PROSPECTUS
SUBJECT TO COMPLETION, DATED May 28, 2021
PROXY
STATEMENT FOR ANNUAL MEETINGS OF STOCKHOLDERS OF
MOXIAN, INC.
PROSPECTUS
FOR ORDINARY SHARES OF
MOXIAN (BVI) INC
MOXIAN,
INC.
Unit
911, Tower 2, Silvercord, 30 Canton Road
Tsimshatsui,
Hong Kong SAR, CHINA
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
To
Be Held at 11:00 a.m. on [ ], 2021 (Hong Kong Time)
To
the Stockholders of Moxian, Inc.
This
proxy statement/prospectus is furnished in connection with the solicitation of proxies by the Board of Directors (the “Board”)
of Moxian, Inc. (the “Company” or “Moxian Nevada”) for use at the 2021 annual meeting
of stockholders of the Company (the “Meeting”) and at all adjournments and postponements thereof. The Meeting
will be held at Unit 911, Tower 2, Silvercord, 30 Canton Road, Tsimshatsui, Hong Kong SAR, China, on [ ], [ ], 2021, at 11:00 a.m., Hong
Kong Time., to consider and vote upon the following proposals:
|
|
1.
|
Election
of five members of the Board of Directors, each to serve a term of one (1) year expiring at the annual meeting of stockholders in
2022 or until their successors are duly elected and qualified;
|
|
|
|
|
|
|
2.
|
Ratification
of the appointment of Centurion ZD CPA & Co. as the Company’s independent registered public accounting firm for the fiscal
year ending September 30, 2021;
|
|
|
|
|
|
|
3.
|
Adoption
of the Agreement and Plan of Merger, including a BVI plan of merger and articles of merger annexed thereto (the “Merger
Agreement”) by and between Moxian Nevada and Moxian (BVI) Inc, a business company incorporated under the laws of the
British Virgin Islands and a wholly owned subsidiary of the Company (“Moxian BVI”); and
|
|
|
|
|
|
|
4.
|
Approval
of transacting such other business as may properly come before the Annual Meeting or any adjournment or postponement thereof.
|
THE
BOARD UNANIMOUSLY RECOMMENDS A VOTE “FOR” ALL OF THE NOMINEES LISTED ABOVE
AND “FOR” EACH OF THE PROPOSAL.
Holders
of record of Moxian Nevada’s Common Stock at the close of business on [ ], 2021 (the “Record Date”) will
be entitled to notice of, and to vote at, this Meeting and any adjournment or postponement thereof. Each share of Common Stock entitles
the holder thereof to one vote.
Your
vote is important, regardless of the number of shares you own. Even if you plan to attend this Meeting in person, it is strongly recommended
that you complete the enclosed proxy card before the meeting date, to ensure that your shares will be represented at this Meeting if
you are unable to attend.
A
complete list of stockholders of record entitled to vote at this Meeting will be available for ten (10) days before this Meeting at the
principal executive office of the Company for inspection by stockholders during ordinary business hours for any purpose germane to this
Meeting.
This
notice and the enclosed proxy statement/prospectus are first being mailed to stockholders on or about [ ], 2021.
You
are urged to review carefully the information contained in the enclosed proxy statement/prospectus prior to deciding how to vote your
shares.
|
|
By
order of the Board of Directors,
|
|
|
|
|
|
/s/
Hao Qinghu
|
|
|
Hao
Qinghu, Chief Executive Officer
(Principal
Executive Officer)
|
|
|
[ ], 2021
|
IF
YOU RETURN YOUR PROXY CARD WITHOUT AN INDICATION OF HOW YOU WISH TO VOTE, YOUR SHARES WILL BE VOTED “FOR” ALL OF THE NOMINEES
LISTED ABOVE AND “FOR” EACH OF THE OTHER PROPOSALS.
Important
Notice Regarding the Availability of Proxy Materials
for
the Annual Stockholder Meeting to Be Held at 11:00 a.m. on [ ], 2021 (Hong Kong Time)
The Notice of Annual Meeting,
proxy statement/prospectus and Annual Report on Form 10-K for fiscal year ended September 30, 2020 are available at http://onlineproxyvote.com/MOXC/
TABLE
OF CONTENTS
Moxian,
Inc.
PROXY STATEMENT
2021
ANNUAL MEETING OF STOCKHOLDERS
to
be held on [ ], [ ], 2021, at 11:00 a.m., Hong Kong Time
Unit 911, Tower 2, Silvercord, 30 Canton Road
Tsimshatsui,
Hong Kong SAR, China
QUESTIONS
AND ANSWERS ABOUT THESE PROXY MATERIALS
Why
am I receiving this proxy statement/prospectus?
This
proxy statement/prospectus describes the proposals on which our Board would like you, as a stockholder, to vote at the Meeting, which
will take place on [ ], [ ], 2021, at 11:00 a.m., Hong Kong Time, at Unit 911, Tower 2, Silvercord, 30 Canton Road, Tsimshatsui, Hong
Kong SAR, China.
Stockholders
are being asked to consider and vote upon proposals to (i) elect the Director Nominees to the Board to serve one-year terms, (ii) ratify
the selection of Centurion ZD CPA & Co. as our independent registered public accounting firm for fiscal year 2021, (iii) approve
the adoption of the Merger Agreement, (iv) transact such other business as may properly come before the Meeting or any adjournment or
postponement thereof.
This
proxy statement/prospectus also gives you information on the proposals so that you can make an informed decision. You should read it
carefully. Your vote is important. You are encouraged to submit your proxy card as soon as possible after carefully reviewing
this proxy statement/prospectus and its appendixes.
In
this proxy statement/prospectus, we refer to Moxian, Inc.as the “Company”, “we”, “us” or “our.”
Who
can vote at this Meeting?
Stockholders
who owned shares of our Common Stock on [ ], 2021 (the “Record Date”) may attend and vote at this Meeting. There were [ ]
shares of Common Stock outstanding on the Record Date. All shares of Common Stock shall have one vote per share. Information about the
stockholdings of our directors, executive officers and significant stockholders is contained in the section of this Proxy Statement entitled
“Security Ownership of Certain Beneficial Owners and Management” beginning on page 27 of this Proxy Statement.
What
is the proxy card?
The
card enables you to appoint Hao Qinghu and Tan Wanhong as your representatives at this Meeting. By completing and returning the proxy
card, you are authorizing these persons to vote your shares at this Meeting in accordance with your instructions on the proxy card. This
way, your shares will be voted whether or not you attend this Meeting. Even if you plan to attend this Meeting, it is strongly recommended
to complete and return your proxy card before this Meeting date just in case your plans change. If a proposal comes up for vote at this
Meeting that is not on the proxy card, the proxies will vote your shares, under your proxy, according to their best judgment.
How
does the Board recommend that I vote?
Our
Board unanimously recommends that stockholders vote “FOR” each of the Director Nominees listed in proposal No. 1 and “FOR”
each of proposals No. 2, 3 and 4.
What
is the difference between holding shares as a stockholder of record and as a beneficial owner?
Certain
of our stockholders hold their shares in an account at a brokerage firm, bank or other nominee holder, rather than holding share certificates
in their own name. As summarized below, there are some distinctions between shares held of record and those owned beneficially.
Stockholder
of Record/Registered Stockholders
If,
on the Record Date, your shares were registered directly in your name with our transfer agent, Securities Transfer Corporation, you are
a “stockholder of record” who may vote at the Meeting, and we are sending these proxy materials directly to you. As the stockholder
of record, you have the right to direct the voting of your shares by returning the enclosed proxy card to us or to vote in person at
the Meeting. Whether or not you plan to attend the Meeting, please complete, date and sign the enclosed proxy card to ensure that your
vote is counted.
Beneficial
Owner
If,
on the Record Date, your shares were held in an account at a brokerage firm or at a bank or other nominee holder, you are considered
the beneficial owner of shares held “in street name,” and these proxy materials are being forwarded to you by your broker
or nominee who is considered the stockholder of record for purposes of voting at the Meeting. As the beneficial owner, you have the right
to direct your broker on how to vote your shares and to attend the Meeting. However, since you are not the stockholder of record, you
may not vote these shares in person at the Meeting unless you receive a valid proxy from your brokerage firm, bank or other nominee holder.
To obtain a valid proxy, you must make a special request of your brokerage firm, bank or other nominee holder. If you do not make this
request, you can still vote by using the voting instruction card enclosed with this proxy statement/prospectus; however, you will not
be able to vote in person at the Meeting.
How
do I vote?
If
you were a stockholder of record of the Company’s Common Stock on the Record Date, you may vote in person at the Meeting or by
submitting a proxy. Each share of Common Stock that you own in your name entitles you to one vote, in each case, on the applicable proposals.
(1)
You may submit your proxy by mail. You may submit your proxy by mail by completing, signing and dating your proxy card and returning
it in the enclosed, postage-paid and addressed envelope. If we receive your proxy card prior to this Meeting and if you mark your voting
instructions on the proxy card, your shares will be voted:
|
|
●
|
as
you instruct, and
|
|
|
|
|
|
|
●
|
according
to the best judgment of the proxies if a proposal comes up for a vote at this Meeting that is not on the proxy card.
|
We
encourage you to examine your proxy card closely to make sure you are voting all of your shares in the Company.
If
you return a signed card, but do not provide voting instructions, your shares will be voted:
|
|
●
|
FOR
each nominee for director;
|
|
|
|
|
|
|
●
|
FOR
the selection of Centurion ZD CPA & Co. as our independent registered public accounting firm for fiscal year 2021;
|
|
|
|
|
|
|
●
|
FOR
the approval of the adoption of the Merger Agreement;
|
|
|
|
|
|
|
●
|
According
to the best judgment of Mr. Hao and Mr. Tan if a proposal comes up for a vote at the Meeting that is not on the proxy card.
|
(2)
You may vote in person at the Meeting. We will pass out written ballots to any stockholder of record who wants to vote at the
Meeting.
If
I plan on attending the Meeting, should I return my proxy card?
Yes.
Whether or not you plan to attend the Meeting, after carefully reading and considering the information contained in this proxy statement/prospectus,
please complete and sign your proxy card. Then return the proxy card in the pre-addressed, postage-paid envelope provided herewith as
soon as possible so your shares may be represented at the Meeting.
May
I change my mind after I return my proxy?
Yes.
You may revoke your proxy and change your vote at any time before the polls close at this Meeting. You may do this by:
|
|
●
|
sending
a written notice to the Secretary of the Company at the Company’s executive offices stating that you would like to revoke your
proxy of a particular date;
|
|
|
|
|
|
|
●
|
signing
another proxy card with a later date and returning it to the Secretary before the polls close at this Meeting; or
|
|
|
|
|
|
|
●
|
attending
this Meeting and voting in person.
|
What
does it mean if I receive more than one proxy card?
You
may have multiple accounts at the transfer agent and/or with brokerage firms. Please sign and return all proxy cards to ensure that all
of your shares are voted.
What
happens if I do not indicate how to vote my proxy?
Signed
and dated proxies received by the Company without an indication of how the stockholder desires to vote on a proposal will be voted in
favor of each director and proposal presented to the stockholders.
Will
my shares be voted if I do not sign and return my proxy card?
If
you do not sign and return your proxy card, your shares will not be voted unless you vote in person at this Meeting.
What
vote is required to elect the Director Nominees as directors of the Company?
The
election of each nominee for director requires the affirmative vote of a plurality of the shares of Common Stock represented in person
or by proxy and entitled to vote in the election of directors at the Meeting.
How
many votes are required to ratify Centurion ZD CPA & Co. as the Company’s independent registered public accounting firm for
fiscal year 2021?
The
proposal to ratify the appointment of Centurion ZD CPA & Co. to serve as our independent registered public accounting firm for 2021
requires the affirmative vote of a majority of the votes cast at the Meeting by the holders of shares of Common Stock entitled to vote.
How
many votes are required to approve the adoption of the Merger Agreement?
The
proposal to approve the adoption of the Merger Agreement requires the affirmative vote of a majority of the votes properly cast in person
or by proxy.
Is
my vote kept confidential?
Proxies,
ballots and voting tabulations identifying stockholders are kept confidential and will not be disclosed, except as may be necessary to
meet legal requirements.
Where
do I find the voting results of this Meeting?
We
will announce voting results at this Meeting and also file a Current Report on Form 8-K with the Securities and Exchange Commission (the
“SEC”) reporting the voting results.
Who
can help answer my questions?
You
can contact Hao Qinghu or Tan Wanhong at +852 2961 4888 or by sending a letter to the offices of the Company at Unit 911, Tower 2, Silvercord,
30 Canton Road, Tsimshatsui, Hong Kong SAR, China with any questions about proposals described in this proxy statement/prospectus or
how to execute your vote.
QUESTIONS
AND ANSWERS RELATING TO THE MERGER
What
is the merger?
Under
the Merger Agreement, the Company will merge with and into Moxian BVI, with Moxian BVI surviving the merger. Upon consummation of the
merger, each issued and outstanding share of the Company’s common stock will be converted into the right to receive one ordinary
share in Moxian BVI, which shares will be issued by Moxian BVI in connection with the merger. Following the merger, Moxian BVI will own
and continue to conduct our business in substantially the same manner as it is currently being conducted by the Company and its subsidiaries.
Moxian BVI will also be managed by the same Board of Directors and executive officers that manage the Company today.
Why
does the Company want to engage in the merger?
The
merger is part of a reorganization of the Company’s corporate structure approved by our Board of Directors that we expect will,
among other things, result in a reduction in operational, administrative, legal and accounting costs over the long term and provide us
with other flexibility with respect to our business operations. Please see the section entitled “The Merger Agreement—Background
and Reasons for the Merger.” However, there can be no assurance that following the merger we will be able to realize these expected
benefits for the reasons discussed in the section entitled “Risk Factors and Caution Regarding Forward-Looking Statements—Risks
Relating to the Merger and Reorganization—The expected benefits of the merger and reorganization may not be realized.” We
also have incurred and will continue to incur transaction costs (the significant majority of which will have been incurred and expensed
prior to your vote on the proposal). Please see the section entitled “Summary Pro Forma Financial Information” for a description
of these transaction costs.
Will
the merger affect current or future operations?
The
merger is not expected to have a material impact on how we conduct day-to-day operations. While the new corporate structure would not
change our future operational plans to grow our business, including our focus on our China business, it may improve our ability to expand
internationally. The location of future operations will depend on the needs of the business, which will be determined without regard
to Moxian BVI’s jurisdiction of incorporation. Please see the section entitled “The Merger Agreement — Background and
Reasons for the Merger.”
Is
the merger taxable to me?
U.S.
holders will not recognize gain or loss for U.S. federal income tax purposes upon receipt of Moxian BVI ordinary shares in exchange for
the Company common stock. The aggregate tax basis in the ordinary shares of Moxian BVI received in the merger will equal each such U.S.
holder’s aggregate tax basis in the Company common stock surrendered. A U.S. holder’s holding period for the ordinary shares
of Moxian BVI that are received in the merger generally should include such U.S. holder’s holding period for the common stock of
the Company surrendered. Please see the section entitled “Taxation — Material United States Federal Income Tax Consequences
Relating to the Merger and the Ownership and Disposition of Moxian BVI Ordinary Shares.”
THE
TAX TREATMENT OF THE MERGER UNDER STATE LAW WILL DEPEND ON THE STATE. IT IS POSSIBLE THAT THE MERGER MAY BE TAXABLE UNDER THE TAX LAW
OF SOME STATES, INCLUDING, FOR EXAMPLE, CALIFORNIA. WE URGE YOU TO CONSULT YOUR OWN TAX ADVISOR PRIOR TO THE ANNUAL MEETING REGARDING
THE PARTICULAR TAX CONSEQUENCES OF THE MERGER TO YOU.
Has
the U.S. Internal Revenue Service rendered a ruling on any aspects of the merger?
No
ruling has been requested from the U.S. Internal Revenue Service, or the IRS, in connection with the merger.
When
do you expect to complete the merger?
If
the adoption of the Merger Agreement is approved by our stockholders at the Annual Meeting, we anticipate that the merger will become
effective on [ ], 2021 or such date subsequent thereto as permitted under BVI law, although the merger may be abandoned by our Board
of Directors prior to its completion. Please see the section entitled “Risk Factors and Caution Regarding Forward-Looking Statements—Risks
Relating to the Merger and Reorganization—Our Board of Directors may choose to defer or abandon the merger.”
What
types of information and reports will Moxian BVI make available to shareholders following the merger?
Following
completion of the merger, Moxian BVI is expected to qualify as a “foreign private issuer” under the rules and regulations
of the SEC. Moxian BVI will remain subject to the mandates of the Sarbanes-Oxley Act of 2002, or the Sarbanes- Oxley Act, and, as long
as the Moxian BVI’s ordinary shares are listed on the NASDAQ Stock Market, or NASDAQ, the governance and disclosure rules of that
stock exchange. However, as a foreign private issuer, Moxian BVI will be exempt from certain rules under the Exchange Act that would
otherwise apply if Moxian BVI were a company incorporated in the United States or did not meet the other conditions to qualify as a foreign
private issuer. For example:
|
|
●
|
Moxian
BVI may include in its SEC filings financial statements prepared in accordance with generally accepted accounting principles in the
United States, or U.S. GAAP, or with the International Financial Reporting Standards, or IFRS, as issued by the International Accounting
Standards Board, or IASB, without reconciliation to U.S. GAAP;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to provide as many Exchange Act reports, or as frequently or as promptly, as U.S. companies with securities
registered under the Exchange Act. For example, Moxian BVI will not be required to file current reports on Form 8-K within four business
days from the occurrence of specific material events. Instead, Moxian BVI will need to promptly furnish reports on Form 6-K any information
that Moxian BVI (a) makes or is required to make public under the laws of the British Virgin Islands, (b) files or is required to
file under the rules of any stock exchange or (iii) otherwise distributes or is required to distribute to its shareholders. Unlike
Form 8-K, there is no precise deadline by which Form 6-K must be furnished. In addition, Moxian BVI will not be required to file
its annual report on Form 10-K, which may be due as soon as 60 days after its fiscal year end. As a foreign private issuer, Moxian
BVI will be required to file an annual report on Form 20-F within four months after its fiscal year end;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to provide the same level of disclosure on certain issues, such as executive compensation;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to conduct advisory votes on executive compensation;
|
|
|
|
|
|
|
●
|
Moxian
BVI will be exempt from filing quarterly reports under the Exchange Act with the SEC;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be subject to the requirement to comply with Regulation Fair Disclosure, or Regulation FD, which imposes certain restrictions
on the selected disclosure of material information;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to comply with the sections of the Exchange Act regulating the solicitation of proxies, consents or authorizations
in respect of a security registered under the Exchange Act; and
|
|
|
●
|
Moxian
BVI will not be required to comply with Section 16 of the Exchange Act requiring insiders to file public reports of their stock ownership
and trading activities and establishing insider liability for profits realized from any “short-swing” trading transaction.
|
Moxian
BVI expects to take advantage of these exemptions if the merger is effected. Accordingly, after the completion of the merger, if you
hold Moxian BVI securities, you may receive less information about Moxian BVI and its business than you currently receive with respect
to the Company and be afforded less protection under the U.S. federal securities laws than you are entitled to currently. However, consistent
with our policy of seeking input from, and engaging in discussions with, our stockholders, on executive compensation matters, Moxian
BVI intends to provide disclosure relating to its executive compensation philosophy, policies and practices and conduct an advisory vote
on executive compensation once every three (3) years after the merger is effected. However, Moxian BVI expects to review this practice
after the next such advisory vote and may at that time or in the future determine to conduct such advisory votes more frequently or to
not conduct them at all.
If
Moxian BVI loses its status as a foreign private issuer at some future time, then it will no longer be exempt from such rules and, among
other things, will be required to file periodic reports and financial statements as if it were a company incorporated in the United States.
The costs incurred in fulfilling these additional regulatory requirements could be substantial. Please see the sections entitled “Risk
Factors and Caution Regarding Forward-Looking Statements—Risks Relating to the Merger and Reorganization—The expected benefits
of the merger and reorganization may not be realized” and “Risk Factors and Caution Regarding Forward-Looking Statements—Risks
Relating to the Merger and Reorganization—If Moxian BVI fails to qualify as a foreign private issuer upon completion of the merger,
or loses its status as a foreign private issuer at some future time, Moxian BVI would be required to comply fully with the reporting
requirements of the Exchange Act applicable to U.S. domestic issuers and would incur significant operational, administrative, legal and
accounting costs that it would not incur as a foreign private issuer.”
Do
I have to take any action to exchange my common stock and receive Moxian BVI ordinary shares?
The
Company common stock registered in your name or which you beneficially own through your broker will be converted into the right to receive
an equal number of Moxian BVI ordinary shares and such shares will be registered in your name (or your broker’s name, as applicable)
in Moxian BVI’s register of members upon completion of the merger, without any further action on your part. Upon completion of
the merger, only registered shareholders reflected in Moxian BVI’s register of members will have and be entitled to exercise any
voting and other rights with respect to and to receive any dividend and other distributions upon Moxian BVI ordinary shares registered
in their respective names. Any attempted transfer of the Company stock prior to the merger that is not properly documented and reflected
in the stock records maintained by the Company’s transfer agent as of immediately prior to the Effective Time will not be reflected
in Moxian BVI’s register of members upon completion of the merger. Registered holders of Moxian BVI’s ordinary shares seeking
to transfer Moxian BVI ordinary shares following the merger will be required to provide customary transfer documents required by Moxian
BVI’s transfer agent to complete the transfer.
If
you hold the Company’s common stock in uncertificated book-entry form (for example, if you hold your shares through a broker),
at the time the merger becomes effective in the State of Nevada, or the Effective Time, the Company common stock registered in your name
or which you beneficially own through your broker will be converted into the right to receive an equal number of Moxian BVI ordinary
shares and such shares will be registered in your name (or your broker’s name, as applicable) in book-entry form without any action
on your part.
If
you hold the Company’s common stock in certificated form, you may exchange your stock certificates for new Moxian BVI share certificates
promptly following the merger. We will request that all the Company stock certificates be returned to Moxian BVI’s transfer agent
following the merger. Soon after the closing of the merger, you will be sent a letter of transmittal from our exchange agent. It is expected
that, prior to the Effective Time, Securities Transfer Corporation will be appointed as our exchange agent for the merger. The letter
of transmittal will contain instructions explaining the procedure for surrendering your stock certificates for new Moxian BVI share certificates.
YOU SHOULD NOT RETURN STOCK CERTIFICATES WITH THE ENCLOSED PROXY CARD.
The
Company’s transfer agent is Securities Transfer Corporation, which will continue to serve as the transfer agent for Moxian BVI
ordinary shares after the Effective Time.
What
happens to the Company Exercisable or Convertible Securities at the Effective Time of the merger?
At
the Effective Time, all outstanding and unexercised portions of each option, warrant and security exercisable or convertible by its terms
into the common stock of the Company (including convertible promissory notes), whether vested or unvested, which is outstanding immediately
prior to the Effective Time (each, a “Company Convertible Securities”) shall be assumed by Moxian BVI and shall be deemed
to constitute an option, warrant or convertible security, as the case may be, to acquire the same number of ordinary shares in Moxian
BVI as the holder of such Company Convertible Securities would have been entitled to receive had such holder exercised or converted such
Company Convertible Securities in full immediately prior to the Effective Time (not taking into account whether such Company Convertible
Securities was in fact exercisable or convertible at such time), at the same exercise price per share, and shall, to the extent permitted
by law and otherwise reasonably practicable, have the same term, exercisability, vesting schedule, status and all other material terms
and conditions; and Moxian BVI shall take all steps to ensure that a sufficient number of ordinary shares is reserved for the exercise
of such Company Convertible Securities. Please see the section entitled “The Merger Agreement—Stock Compensation and Benefit
Plans and Programs” for more information.
Can
I trade my Company common stock before the merger is completed?
Yes.
the Company common stock will continue trading on NASDAQ through the last trading day prior to the date of completion of the merger,
which date of completion is expected to be [ ], 2021 (Hong Kong time).
After
the merger, where can I trade my Moxian BVI ordinary shares?
We
expect that as of the Effective Time, the Moxian BVI ordinary shares will be authorized for listing on NASDAQ, and we expect such shares
will be traded on the exchange under the symbol “MOXC.”
How
will my rights as a shareholder of Moxian BVI change after the merger relative to my rights as a stockholder of the Company prior to
the merger?
Because
of differences between Nevada law and British Virgin Islands law and differences between the governing documents of the Company and Moxian
BVI, we are unable to adopt governing documents for Moxian BVI that are identical to the governing documents for the Company, but we
have attempted to preserve in the memorandum and articles of association of Moxian BVI the same allocation of material rights and powers
between the shareholders and our Board of Directors that exists under the Company’s bylaws and certificate of incorporation. For
example, under the Company’s bylaws, a director must be elected by a plurality of the votes cast, meaning that the nominee who
polls more votes than any other candidate is elected. This provision is preserved in the articles of association of Moxian BVI.
Nevertheless,
Moxian BVI’s proposed memorandum and articles of association differ from the Company’s bylaws and certificate of incorporation,
both in form and substance, and your rights as a shareholder of Moxian BVI will change relative to your rights as a stockholder of the
Company as a result of the merger and you may not be afforded as many rights as a shareholder of Moxian BVI under applicable laws and
the Moxian BVI memorandum and articles of association as you were as a stockholder of the Company under applicable laws and the Company
certificate of incorporation and bylaws. Please see the sections entitled “Risk Factors and Caution Regarding Forward-Looking Statements—Risks
Relating to the Merger and Reorganization—Your rights as a stockholder of the Company will change as a result of the merger and
you may not be afforded as many rights as a shareholder of Moxian BVI under applicable laws and the Moxian BVI memorandum and articles
of association as you were as a stockholder of the Company under applicable laws and the Company certificate of incorporation and bylaws.”
Notwithstanding
the foregoing, the changes above may not change your rights as a shareholder significantly in practice because the Company has a concentrated
ownership structure with a few stockholders each holding more than five percent (5%) of the Company’s common stock. For further
details on the security ownership of certain beneficial owners of the Company, please see the section entitled “Security Ownership
of Certain Beneficial Owners and Management.”
Additionally,
as a foreign private issuer, Moxian BVI will be permitted to follow corporate governance practices in accordance with British Virgin
Islands laws in lieu of certain NASDAQ corporate governance standards. However, we do not intend to initially rely on any NASDAQ exemptions
or accommodations for foreign private issuers following the merger. Please see the sections entitled “Proposal 3 Approval of the
Adoption of the Merger Agreement—The Merger Agreement—Background and Reasons for the Merger.”
SUMMARY
This
summary highlights selected information regarding the merger from this Proxy Statement and may not contain all of the information
that is important to you. For a more complete description of the merger, you should read carefully this entire Proxy Statement,
including the Appendix. Please also see the section entitled “Where You Can Find Additional Information.” The Merger
Agreement, a copy of which is attached as Appendix A to this Proxy Statement, contains the terms and conditions of the
merger. The memorandum and articles of association of Moxian BVI will serve purposes substantially similar to the certificate
of incorporation and bylaws of the Company. Copies of the memorandum and articles of association of Moxian BVI that will become
effective upon consummation of the merger are attached to this Proxy Statement as Appendix B.
The
Merger
The
Parties to the Merger
The
Company has been in the O2O (“Online-to-Offline”) business since the inception of the Company until the fiscal year ended
September 30, 2018. We developed an online platform for small and medium sized enterprises (“SMEs”) with physical stores
to conduct business online, interact with existing customers and obtain new customers. We developed products and services designed to
allow our clients to conduct targeted advertising campaigns and promotions and attract potential customers.
On
December 31, 2015, the Company entered into an Exclusive Partnership Agreement with Xinhua New Media Culture Communication Co. Ltd. (“Xinhua
New Media”). Xinhua New Media is part of the Xinhua News Agency, the official news agency of China. Xinhua New Media has developed
an App that has a user population in the region of 120 million, many of whom are government employees and senior executives of quasi-government
bodies and agencies. Under the Agreement, the Company has the exclusive rights to operate the gaming channel on the Xinhua New Media
app and can sell advertisement space on any part of the App.
The
Company ceased its operations in the O2O business described above as of September 30, 2018, following the withdrawal of its strategic
partner, the Shanghai Shewn Wine Company Limited. This part of its operations necessitated the deployment of a large sales force and
the constant upgrading of its mobile application, in the face of intense competition in an industry dominated by a handful of larger,
well capitalized players such as Alipay and WeChat. The Company decided to continue its operations in digital advertising but temporarily
halt the operation of its App until its financial situation improved. The Company has since operated as a general agent for the Xinhua
App, of which the Company had exclusive agreements to operate the Games Channel on its app.
Moxian
BVI is a newly formed company incorporated under the laws of the BVI and currently a wholly owned subsidiary of the Company. Moxian BVI
does not have a significant amount of assets or liabilities and has not engaged in any business since its formation other than activities
associated with its anticipated participation in the merger. Following the merger, Moxian BVI, together with its subsidiaries, will own
and continue to conduct our business in substantially the same manner as is currently being conducted by Moxian Nevada and its subsidiaries.
The
principal executive offices of both of the Company and Moxian BVI are located at Unit 911, Tower 2, Silvercord, 30 Canton Road, Tsimshatsui,
Hong Kong SAR, China, and the telephone number of the company is +852 2961 4888.
The
Merger
Under
the Merger Agreement, Moxian Nevada will merge with and into Moxian BVI. Upon completion of the merger, Moxian BVI will own and continue
to conduct the business that Moxian Nevada and its subsidiaries currently conduct, in substantially the same manner. As a result of the
merger, our stockholders will own ordinary shares of Moxian BVI, a business company incorporated under the laws of the British Virgin
Islands, rather than common stock in Moxian Nevada, a Nevada corporation. As a result of the merger, each outstanding share of Moxian
Nevada’s common stock will be converted into the right to receive the same number of ordinary shares of Moxian BVI, which shares
will be issued by Moxian BVI in connection with the merger. Our Board of Directors reserves the right to defer or abandon the merger.
Please see the section entitled “Risk Factors and Caution Regarding Forward- Looking Statements—Risks Relating to the Merger
and Reorganization—Our Board of Directors may choose to defer or abandon the merger.”
Background
and Reasons for the Merger
In
reaching its decision to approve the Merger Agreement and the merger, our Board of Directors identified several potential benefits to
our stockholders, which are described below under “The Merger Agreement—Background and Reasons for the Merger.” The
merger is part of a reorganization of the Company’s corporate structure that we expect will, among other things, result in a reduction
in operational, administrative, legal and accounting costs over the long term. Please also see the section entitled “Risk Factors
and Caution Regarding Forward-Looking Statements—Risks Relating to the Merger and Reorganization” below for a description
of certain risks associated with the merger and reorganization.
Conditions
to Completion of the Merger
The
following conditions must be satisfied or waived, if allowed by law, to complete the merger and reorganization:
|
|
1.
|
the
Merger Agreement has been adopted by the requisite vote of stockholders of the Company;
|
|
|
|
|
|
|
2.
|
none
of the parties to the Merger Agreement is subject to any decree, order or injunction that prohibits the consummation of the merger;
|
|
|
|
|
|
|
3.
|
the
registration statement of which this Proxy Statement is a part has been declared effective by the SEC and no stop order is in effect;
|
|
|
|
|
|
|
4.
|
the
Moxian BVI ordinary shares to be issued pursuant to the merger have been authorized for listing on NASDAQ, subject to official notice
of issuance and satisfaction of other standard conditions;
|
|
|
|
|
|
|
5.
|
all
material consents and authorizations of, filings or registrations with, and notices to, any governmental or regulatory authority
required of the Company, Moxian BVI or their subsidiaries to consummate the merger have been obtained or made; and
|
|
|
|
|
|
|
6.
|
the
representations and warranties of the parties to the Merger Agreement set forth in the Merger Agreement are true and correct in all
material respects, and the covenants of the parties set forth in the Merger Agreement (other than those to be performed after the
Effective Time) have been performed in all material respects.
|
Our
Board of Directors currently does not anticipate any circumstances in which it would waive the conditions listed above; however, in the
event it determines that a waiver of any such conditions is in the best interests of our stockholders and that such change to the terms
of the merger and/or the Merger Agreement do not make the disclosure provided to our stockholders materially misleading (for example,
if a representation in the Merger Agreement is not true but there is otherwise no harm to the Company or our stockholders), our Board
of Directors will not resolicit shareholder approval of the merger and/or the Merger Agreement. If a waiver of any condition listed above
would make the disclosure provided to our stockholders materially misleading, our Board of Directors will resolicit shareholder approval
of the merger and/or the Merger Agreement. Additionally, our Board of Directors reserves the right to defer or abandon the merger as
well for the reasons described under “Risk Factors and Caution Regarding Forward- Looking Statements—Risks Relating to the
Merger and Reorganization—Our Board of Directors may choose to defer or abandon the merger.”
Regulatory
Approvals
The
only governmental or regulatory approvals or actions that are required to complete the merger in respect of Moxian Nevada are compliance
with U.S. federal and state securities laws, the NASDAQ rules and regulations and Nevada corporate laws.
Rights
of Dissenting Stockholders
Under
the Nevada Revised Statutes, or the NRS, you will not have appraisal rights in connection with the merger.
Accounting
Treatment of the Merger
The
merger is a legal reorganization with no change in ultimate ownership interest immediately before and after the transaction. Accordingly,
all assets and liabilities will be recorded at historical cost, in a manner similar to an exchange between entities under common control.
Tax
Considerations
United
States Tax Consequences of the Merger to Moxian Nevada and Moxian BVI
We
expect that neither the Company nor Moxian BVI will incur U.S. income tax as a result of completion of the merger.
United
States Taxation of Moxian Nevada Stockholders
Taxation
of U.S. Holders. The merger should be characterized for U.S. federal income tax purposes as either a tax-free merger or a transaction
qualifying under Section 351 of the Internal Revenue Code of 1986, or the Code. In either case, U.S. holders will not recognize gain
or loss for U.S. federal income tax purposes upon receipt of Moxian BVI ordinary shares in exchange for Moxian Nevada’s common
stock. The aggregate tax basis in the ordinary shares of Moxian BVI received in the merger will equal each such U.S. holder’s aggregate
tax basis in Moxian Nevada’s common stock surrendered. A U.S. holder’s holding period for the ordinary shares of Moxian BVI
that are received in the merger generally should include such U.S. holder’s holding period for the common stock of Moxian Nevada
surrendered.
Taxation
of Non-U.S. Holders. The holders of Moxian Nevada’s common stock who are treated as foreign persons for U.S. federal income
tax purposes, including holders who hold directly and constructively more than 5% of the outstanding the Company common stock, will not
recognize taxable gain or loss on their the Company common stock for U.S. federal income tax purposes.
Please
see the section entitled “Taxation” for further information regarding material tax consequences relating to the merger and
the ownership and disposition of Moxian BVI Ordinary Shares.
Other
Information
Ownership
in Moxian BVI
Moxian
Nevada’s common stock registered in your name or which you beneficially own through your broker will be converted into the right
to receive an equal number of Moxian BVI ordinary shares and such shares will be registered in your name (or your broker’s name,
as applicable) in Moxian BVI’s register of members upon completion of the merger, without any further action on your part. Upon
completion of the merger, only registered shareholders reflected in Moxian BVI’s register of members will have and be entitled
to exercise any voting and other rights with respect to and to receive any dividend and other distributions upon Moxian BVI ordinary
shares registered in their respective names. Any attempted transfer of Moxian Nevada’s stock prior to the merger that is not properly
documented and reflected in the stock records maintained by the Company’s transfer agent as of immediately prior to the Effective
Time will not be reflected in Moxian BVI’s register of members upon completion of the merger. Registered holders of Moxian BVI’s
ordinary shares seeking to transfer Moxian BVI ordinary shares following the merger will be required to provide customary transfer documents
required by Moxian BVI’s transfer agent to complete the transfer.
If
you hold Moxian Nevada’s common stock in uncertificated book-entry form (for example, if you hold your shares through a broker),
at the Effective Time, Moxian Nevada’s common stock registered in your name or which you beneficially own through your broker will
be converted into the right to receive an equal number of Moxian BVI ordinary shares and such shares will be registered in your name
(or your broker’s name, as applicable) in book-entry form without any action on your part.
If
you hold Moxian Nevada’s common stock in certificated form, you may exchange your stock certificates for new Moxian BVI share certificates
promptly following the merger. We will request that all Moxian Nevada’s stock certificates be returned to the Company’s transfer
agent following the merger. Soon after the closing of the merger, you will be sent a letter of transmittal from our transfer agent. The
letter of transmittal will contain instructions explaining the procedure for surrendering your stock certificates for new Moxian BVI
share certificates. YOU SHOULD NOT RETURN STOCK CERTIFICATES WITH THE ENCLOSED PROXY CARD.
Comparison
of Rights of Stockholders/Shareholders
The
principal attributes of Moxian Nevada’s common stock and Moxian BVI’s ordinary shares will be similar. However, there are
differences between the rights of stockholders under the Nevada Revised Statutes and the rights of shareholders under British Virgin
Islands law. In addition, there are differences between the provisions of Moxian Nevada’s certificate of incorporation and bylaws
and Moxian BVI’s memorandum and articles of association, as explained further below in this Proxy Statement. Please see the sections
entitled “Risk Factors and Caution Regarding Forward-Looking Statements—Risks Relating to the Merger and Reorganization—Your
rights as a stockholder of the Company will change as a result of the merger and you may not be afforded as many rights as a shareholder
of Moxian BVI under applicable laws and the Moxian BVI memorandum and articles of association as you were as a stockholder of Moxian
Nevada under applicable laws and the Company certificate of incorporation and bylaws”.
Stock
Exchange Listing
It
is a condition to the completion of the merger that the ordinary shares of Moxian BVI will be authorized for listing on NASDAQ, subject
to official notice of issuance and satisfaction of other standard conditions. As such, we expect that as of the Effective Time, the Moxian
BVI ordinary shares will be authorized for listing on NASDAQ Capital Market under the symbol “MOXC.”
Market
Price
The
closing price per share of the Company common stock on NASDAQ was $[ ] on [ ], 2021, the last trading date immediately preceding public
announcement of the proposed merger.
Recommendation
and Required Vote
Our
Board of Directors has unanimously determined that the reorganization, to be effected by the merger, is advisable and in the best interests
of the Company and our stockholders and, as such, has unanimously approved the merger and the Merger Agreement. The Board of Directors
recommends that you vote “FOR” the adoption of the Merger Agreement.
Annual
Meeting of Stockholders
You
can vote at the Annual Meeting if you owned the Company common stock at the close of business on [ ], 2021, the Record Date. As of [ ], 2021, there were [ ] shares of the Company common stock outstanding and entitled to vote. Adoption of the Merger Agreement requires
the affirmative vote of the holders of a majority of the shares of the Company common stock entitled to vote at the Annual Meeting. As
of the Record Date, our directors and executive officers and their affiliates owned, in the aggregate, approximately [ ] of such shares,
representing ownership of approximately [ ]% of the outstanding shares of the Company common stock as of that date. These shares are
included in the number of shares entitled to vote at the Annual Meeting.
Risk
Factors
There
are a number of risks which you should be aware of in considering whether to vote in favor of the proposal to approve the merger, including
the following:
|
|
●
|
Your
rights as a shareholder of Moxian BVI will change relative to your rights as a stockholder of the Company as a result of the merger
and you may not be afforded as many rights as a shareholder of Moxian BVI under applicable laws and the Moxian BVI memorandum and
articles of association as you were as a stockholder of the Company under applicable laws and the Company certificate of incorporation
and bylaws;
|
|
|
|
|
|
|
●
|
As
a result of different shareholder voting requirements in the British Virgin Islands relative to Nevada, we may have less flexibility
with respect to our ability to amend our constitutional documents and enter into certain business combinations than we now have;
|
|
|
|
|
|
|
●
|
As
a foreign private issuer, Moxian BVI will not be required to provide its shareholders with the same information as the Company would
if the Company remained a U.S. public issuer and, as a result, you may not receive as much information about Moxian BVI as you did
about the Company and you may not be afforded the same level of protection as a shareholder of Moxian BVI under applicable laws and
the Moxian BVI memorandum and articles of association as you were as a stockholder of the Company under applicable laws and the Company
certificate of incorporation and bylaws;
|
|
|
|
|
|
|
●
|
The
enforcement of civil liabilities against Moxian BVI may be more difficult; and
|
|
|
|
|
|
|
●
|
The
expected benefits of the merger and reorganization may not be realized because the achievement of the benefits are subject to factors
that we do not control, such as the reactions of third parties with whom we enter into contracts and do business and the reactions
of investors and analysts.
|
The
risks are discussed more fully in the section entitled “Risk Factors and Caution Regarding Forward-Looking Statements—Risks
Relating to the Merger and Reorganization” following this Proxy Statement.
Summary
Pro Forma Financial Information
A
pro forma condensed consolidated balance sheet for Moxian BVI is not presented in this Proxy Statement because there are no significant
pro forma adjustments required to be made to the historical consolidated financial statements of the Company to give effect to the transaction.
The transaction will be accounted for as a legal reorganization with no change in ultimate ownership interest immediately before and
after the transaction. Please see the section entitled “The Merger Agreement—Accounting Treatment of the Merger.”
A
pro forma condensed consolidated statement of operations for Moxian BVI is not presented in this Proxy Statement because there are no
significant pro forma adjustments required to be made to income from operations in the historical consolidated income statements of the
Company to give effect to the transaction.
Reference
is made to the consolidated financial statements of the Company, including the notes to the financial statements, in the Company’s
Annual Report on Form 10-K for the year ended September 30, 2020, which is incorporated by reference into this Proxy Statement. Please
refer to the section in this Proxy Statement entitled “Where You Can Find Additional Information.”
We
estimate that the costs incurred in connection with the merger and re-domicile will amount to approximately $80,000, with the
significant majority having been incurred prior to your vote on the proposal. The transaction costs have been or will be reflected in
general and administrative expense in our condensed consolidated statement of operations in the period incurred.
RISK
FACTORS AND CAUTION REGARDING FORWARD-LOOKING STATEMENTS
In
considering whether to vote in favor of the proposal to adopt the Merger Agreement in connection with the merger, you should consider
carefully the following risks or investment considerations, in addition to the other information in this Proxy Statement. In addition,
please note that this Proxy Statement contains or incorporates by reference “forward-looking statements” and “forward-looking
information” under applicable securities laws. These forward-looking statements include, but are not limited to, statements about
the merger and reorganization and our plans, objectives, expectations and intentions with respect to future operations, including the
benefits or impact described in this Proxy Statement that we expect to achieve as a result of the merger and reorganization. You can
find many of these statements by looking for words such as “believes,” “expects,” “anticipates,”
“estimates,” “continues,” “may,” “intends,” “plans” or similar expressions
in this Proxy Statement or in the documents incorporated by reference. Any forward-looking statements in this Proxy Statement reflect
only expectations that are current as of the date of this Proxy Statement or the date of any document incorporated by reference in this
document, as the case may be, are not guarantees of performance, and are inherently subject to significant business, economic and competitive
uncertainties and contingencies, many of which are difficult to predict and generally beyond our ability to control. Further, these forward-looking
statements are based on assumptions with respect to business strategies and decisions that are subject to change. Actual results or performance
may differ materially from those we express in our forward-looking statements. Except as may be required by applicable securities laws,
we disclaim any obligation or undertaking to disseminate any updates or revisions to our statements, forward-looking or otherwise, to
reflect changes in our expectations or any change in events, conditions or circumstances on which any such statements are based.
Set
forth below, we have identified the factors, among others, that you should consider before making a decision on whether or not to vote
in favor of the proposal to adopt the Merger Agreement, and we have identified certain of the risks that could cause our actual plans
or results to differ materially from those included in the forward-looking statements contained or incorporated by reference herein.
You should consider these risks when deciding how to vote. In addition, you should also review carefully the risks affecting our business
generally that could also cause our actual plans or results to differ materially from those included in the forward-looking statements
contained or incorporated by reference herein.
Risks
Relating to the Merger and Reorganization
Your
rights as a stockholder of The Company will change as a result of the merger and you may not be afforded as many rights as a shareholder
of Moxian BVI under applicable laws and the Moxian BVI memorandum and articles of association as you were as a stockholder of The Company
under applicable laws and the Company certificate of incorporation and bylaws.
The
corporate affairs of Moxian BVI are governed by the memorandum and articles of association of Moxian BVI, the BVI
Business Companies Act, 2004 (as amended) of the BVI, or the BVI Act, and the common law of the BVI. Although we have attempted to
preserve in the memorandum and articles of association of Moxian BVI the same allocation of material rights and powers
between the shareholders and our Board of Directors that exists under Moxian Nevada’s bylaws and articles of
incorporation, because of differences between Nevada law and BVI law and differences between the governing documents of Moxian
Nevada and Moxian BVI, your rights as a shareholder in Moxian BVI will not be the same as your rights as a stockholder
in Moxian Nevada. The following are some examples:
Under
the NRS, a stockholder may bring a derivative suit provided the requirements to do so under the NRS have been met. The rights of shareholders
to take action against the directors, actions by minority shareholders and the fiduciary responsibility of the directors under BVI law
are governed by the BVI Act and the common law of the BVI. The common law of the BVI is derived in part from comparatively limited judicial
precedent in the BVI as well as from English common law, which has persuasive, but not binding, authority on a court in the BVI. The
rights of shareholders and the fiduciary responsibilities of directors under BVI law may not be as clearly established as they would
be under statutes or judicial precedent in Nevada. In particular, the BVI has a less developed body of securities laws as compared to
the United States, and some states (including Nevada) have more fully developed and judicially interpreted bodies of corporate law.
Moxian
BVI, as a BVI company, may not have standing to initiate a shareholder
derivative action in a federal court of the United States. The circumstances in which any such action may be brought, and the procedures
and defenses that may be available in respect to any such action, may result in the rights of shareholders of Moxian BVI being
more limited than those of stockholders of Moxian Nevada would be. Accordingly, Moxian BVI shareholders may have fewer
alternatives available to them if they believe that corporate wrongdoing has occurred. The BVI courts are also unlikely to recognize
or enforce against Moxian BVI judgments of courts in the U.S. based on certain liability provisions of U.S. securities law, and
to impose liabilities against Moxian BVI, in original actions brought in the BVI, based on certain liability provisions of U.S.
securities laws that are penal in nature.
Under
the laws of the BVI, there is some statutory law for the protection of minority shareholders under the Act. The principal protection
under statutory law is that shareholders may bring an action to enforce a BVI company’s memorandum and articles of association.
The BVI Act sets forth the procedure to bring such a claim. Shareholders of a BVI company are entitled to have the affairs of the BVI
company conducted in accordance with the general law and the memorandum and articles of association. BVI companies are not obligated
to appoint an independent auditor and shareholders are not entitled to receive the audited financial statements of the BVI company.
There
are common law rights for the protection of shareholders that may be invoked (such rights have also now been given statutory footing
under the BVI Act), largely dependent on English company law, since the common law of the BVI for companies incorporated under the BVI
Act is limited. Under the general rule pursuant to English company law known as the rule in Foss v. Harbottle, a court will generally
refuse to interfere with the management of a company at the insistence of a minority of its shareholders who express dissatisfaction
with the conduct of the company’s affairs by the majority or the board of directors. However, every shareholder is entitled to
have the affairs of the company conducted properly according to law and the constituent documents of the company. As such, if those who
control the company have persistently disregarded the requirements of company law or the provisions of the company’s memorandum
or articles of association, then the courts may grant relief. Generally, the areas in which the courts may intervene are the following:
(i) an act complained of which is outside the scope of the authorized business or is illegal or not capable of ratification by the majority,
(ii) acts that constitute fraud on the minority where the wrongdoers control the company, (iii) acts that infringe on the personal rights
of the shareholders, such as the right to vote, and (iv) where the company has not complied with provisions requiring approval of a special
or extraordinary majority of shareholders, which are more limited than the rights afforded minority shareholders under the laws of Nevada.
The
BVI Act has introduced a series of remedies available to shareholders. Where a company incorporated under the BVI Act conducts some activity
which breaches the BVI Act or the company’s memorandum and articles of association, the court can issue a restraining or compliance
order. Shareholders can also bring derivative, personal and representative actions under certain circumstances. The traditional English
basis for shareholders’ remedies have also been incorporated into the BVI Act – where a shareholder of a company considers
that the affairs of the company have been, are being or are likely to be conducted in a manner likely to be oppressive, unfairly discriminating
or unfairly prejudicial to him, he may now apply to the BVI court for an order on such conduct. Any shareholder of a company may apply
to the BVI court for the appointment of a liquidator for the company and the court may appoint a liquidator for the company if it is
of the opinion that it is just and equitable to do so.
The
BVI Act provides that any shareholder of a company is entitled to payment of the fair value of his shares upon dissenting from any of
the following: (a) a merger; (b) a consolidation; (c) any sale, transfer, lease, exchange or other disposition of more than 50% in value
of the assets or business of the company if not made in the usual or regular course of the business carried on by the company but not
including (i) a disposition pursuant to an order of the court having jurisdiction in the matter, (ii) a disposition for money on terms
requiring all or substantially all net proceeds to be distributed to the shareholders in accordance with their respective interest within
one year after the date of disposition, or (iii) a transfer pursuant to the power of the directors to transfer assets for the protection
thereof; (d) a redemption of 10%, or fewer of the issued shares of the company required by the holders of 90%, or more of the shares
of the company pursuant to the terms of the BVI Act; and (e) an arrangement, if permitted by the court.
Generally
any other claims against a company by its shareholders must be based on the general laws of contract or tort applicable in the BVI or
their individual rights as shareholders as established by the company’s memorandum and articles of association.
For
a detailed discussion of these and other material differences, please see the comparison chart of your rights as a common stockholder
of Moxian Nevada against your rights as an ordinary shareholder of Moxian BVI under the section entitled “Differences
in Corporate Law.”
The
laws of the British Virgin Islands may not provide Moxian BVI shareholders with benefits comparable to those provided to shareholders
of corporations incorporated in the United States.
The
corporate affairs of Moxian BVI are governed by the memorandum and articles of association of Moxian BVI, the BVI Act and
the common law of the BVI. The rights of shareholders to take action against Moxian BVI’s directors, actions by minority
shareholders and the fiduciary responsibilities of Moxian BVI’s directors to Moxian BVI under BVI law are to a large
extent governed by the common law of the BVI. The common law in the BVI is derived in part from comparatively limited judicial precedent
in the BVI and from English common law, the decisions of whose courts are of persuasive authority but are not binding on a court in the
BVI. The rights of Moxian BVI’s shareholders and the fiduciary responsibilities of its directors, although clearly established
under BVI law, are only partly specifically prescribed in statute and so may be less fully prescribed in statute than they are in certain
statutes or judicial precedents in some jurisdictions of the United States. In particular, the BVI has a different body of securities
laws relative to the United States. Therefore, Moxian BVI’s shareholders may have more difficulty protecting their interests
in the face of actions by Moxian BVI’s management, directors or controlling shareholders than would shareholders of a corporation
incorporated in a jurisdiction in the United States. In addition, shareholders of BVI companies may not have standing to initiate a shareholder
derivative action before the federal courts of the United States. The BVI courts are also unlikely to impose liability against Moxian
BVI, in original actions brought in the BVI, based on certain civil liabilities provisions of U.S. securities laws. Please see the
section entitled “Enforceability of Civil Liabilities.”
The
expected benefits of the merger and reorganization may not be realized.
We
have presented in this Proxy Statement the anticipated benefits of the merger and reorganization. Please see the section entitled “The
Merger Agreement—Background and Reasons for the Merger.” We cannot be assured that all of the goals of the merger and reorganization
will be achievable, and some or all of the anticipated benefits of the merger and reorganization may not occur, particularly as the achievement
of the benefits are in many important respects subject to factors that we do not control. These factors would include such things as
the reactions of third parties with whom we enter into contracts and do business and the reactions of investors and analysts. In addition,
the anticipated reduction of SEC reporting requirements and related expenses may not be achieved in the event of changes to the SEC rules
applicable to foreign private issuers or if we fail to qualify as a foreign private issuer. While we expect the merger and reorganization
will enable us to reduce our operational, administrative, legal and accounting costs over the long term, these benefits may not be achieved.
As
a foreign private issuer, Moxian BVI will not be required to provide its shareholders with the same information as the Company would
if the Company remained a U.S. public issuer and, as a result, you may not receive as much information about Moxian BVI as you did about
the Company and you may not be afforded the same level of protection as a shareholder of Moxian BVI under applicable laws and the Moxian
BVI memorandum and articles of association as you were as a stockholder of the Company under applicable laws and the Company certificate
of incorporation and bylaws.
Following
the completion of the merger, Moxian BVI is expected to qualify as a “foreign private issuer” under the rules and regulations
of the SEC. Moxian BVI will remain subject to the mandates of the Sarbanes-Oxley Act, and, as long as the Moxian BVI’s ordinary
shares are listed on the NASDAQ, the governance and disclosure rules of that stock exchange. However, as a foreign private issuer, Moxian
BVI will be exempt from certain rules under the Exchange Act that would otherwise apply if Moxian BVI were a company incorporated in
the United States or did not meet the other conditions to qualify as a foreign private issuer. For example:
|
|
●
|
Moxian
BVI may include in its SEC filings financial statements prepared in accordance with U.S. GAAP or with IFRS as issued by the IASB
without reconciliation to U.S. GAAP;
|
|
|
●
|
Moxian
BVI will not be required to provide as many Exchange Act reports, or as frequently or as promptly, as U.S. companies with securities
registered under the Exchange Act. For example, Moxian BVI will not be required to file current reports on Form 8-K within four business
days from the occurrence of specific material events. Instead, Moxian BVI will need to promptly furnish reports on Form 6-K any information
that Moxian BVI (a) makes or is required to make public under the laws of the British Virgin Islands, (b) files or is required to
file under the rules of any stock exchange or (c) otherwise distributes or is required to distribute to its shareholders. Unlike
Form 8-K, there is no precise deadline by which Form 6-K must be furnished. In addition, Moxian BVI will not be required to file
its annual report on Form 10-K, which may be due as soon as 60 days after its fiscal year end. As a foreign private issuer, Moxian
BVI will be required to file an annual report on Form 20-F within four months after its fiscal year end;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to provide the same level of disclosure on certain issues, such as executive compensation;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to conduct advisory votes on executive compensation;
|
|
|
|
|
|
|
●
|
Moxian
BVI will be exempt from filing quarterly reports under the Exchange Act with the SEC;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be subject to the requirement to comply with Regulation FD, which imposes certain restrictions on the selected disclosure
of material information;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to comply with the sections of the Exchange Act regulating the solicitation of proxies, consents or authorizations
in respect of a security registered under the Exchange Act; and
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to comply with Section 16 of the Exchange Act requiring insiders to file public reports of their stock ownership
and trading activities and establishing insider liability for profits realized from any “short-swing” trading transaction.
|
Moxian
BVI expects to take advantage of these exemptions if the merger is effected. Accordingly, after the completion of the merger, if you
hold Moxian BVI securities, you may receive less information about Moxian BVI and its business than you currently receive with respect
to the Company and be afforded less protection under the U.S. federal securities laws than you are entitled to currently. However, consistent
with our policy of seeking input from, and engaging in discussions with, our stockholders, on executive compensation matters, Moxian
BVI intends to provide disclosure relating to its executive compensation philosophy, policies and practices and conduct an advisory vote
on executive compensation once every three years after the merger is effected. However, Moxian BVI expects to review this practice after
the next such advisory vote and may at that time or in the future determine to conduct such advisory votes more frequently or to not
conduct them at all.
If
Moxian BVI fails to qualify as a foreign private issuer upon completion of the merger, or loses its status as a foreign private issuer
at some future time, Moxian BVI would be required to comply fully with the reporting requirements of the Exchange Act applicable to U.S.
domestic issuers and would incur significant operational, administrative, legal and accounting costs that it would not incur as a foreign
private issuer.
Following
completion of the merger, Moxian BVI is expected to qualify as a “foreign private issuer” under the rules and regulations
of the SEC. As a foreign private issuer, Moxian BVI will be exempt from certain rules under the Exchange Act that would otherwise apply
if Moxian BVI were a company incorporated in the United States or did not meet the other conditions to qualify as a foreign private issuer.
Please see the section entitled “Risk Factors and Caution Regarding Forward-Looking Statements—Risks Relating to the Merger
and Reorganization—As a foreign private issuer, Moxian BVI will not be required to provide its shareholders with the same information
as the Company would if the Company remained a U.S. public issuer and, as a result, you may not receive as much information about Moxian
BVI as you did about the Company and you may not be afforded the same level of protection as a shareholder of Moxian BVI under applicable
laws and the Moxian BVI memorandum and articles of association as you were as a stockholder of the Company under applicable laws and
the Company certificate of incorporation and bylaws.” While Moxian BVI is expected to qualify as a foreign private issuer following
the completion of the merger, if Moxian BVI fails to qualify as a foreign private issuer upon completion of the merger, or loses its
status as a foreign private issuer at some future time, Moxian BVI will be required to comply fully with the reporting requirements of
the Exchange Act applicable to U.S. domestic issuers and would incur significant operational, administrative, legal and accounting costs
that it would not incur as a foreign private issuer.
If
we prepare our financial statements in accordance with IFRS following the merger, there may be a significant effect on our reported financial
results.
The
SEC permits foreign private issuers to file financial statements in accordance with IFRS as issued by IASB. At any time in the future,
as a foreign private issuer, we may decide to prepare our financial statements in accordance with IFRS as issued by the IASB. The application
by us of different accounting standards, a change in the rules of IFRS as issued by the IASB, or in the SEC’s acceptance of such
rules, could have a significant effect on our reported financial results. Additionally, U.S. GAAP is subject to interpretation by the
Financial Accounting Standards Board, the American Institute of Certified Public Accountants, the Public Company Accounting Oversight
Board, the SEC, and various bodies formed to promulgate and interpret appropriate accounting principles. IFRS are subject to interpretation
by the IASB. A change in these principles or interpretations could have a significant effect on our reported financial results.
Changes
in domestic and foreign laws, including tax law changes, could adversely affect Moxian BVI, its subsidiaries and its shareholders, and
our effective tax rate may increase whether we effect the merger or not.
Changes
in tax laws, regulations or treaties or the interpretation or enforcement thereof, in both or either of the U.S. or British Virgin Islands,
could adversely affect the tax consequences of the merger to Moxian BVI and its shareholders and/or our effective tax rates (whether
associated with the merger or otherwise). While the merger is not anticipated to have any material impact on our effective tax rate,
there is uncertainty regarding the tax policies of the jurisdictions where we operate, and our effective tax rate may increase and any
such increase may be material.
The
enforcement of civil liabilities against Moxian BVI may be more difficult.
After
the merger, all of our executive officers and our directors will reside outside of the United States. As a result, it may
be more difficult to serve legal process within the United States upon any of these persons and it may also be difficult to enforce,
both in and outside of the United States, judgments you may obtain in the U.S. courts against these persons in any action, including
actions based upon the civil liability provisions of U.S. federal or state securities laws. Because Moxian BVI is a British Virgin Islands
corporation, investors could also experience more difficulty enforcing judgments obtained against Moxian BVI in U.S. courts than would
currently be the case for U.S. judgments obtained against the Company. In addition, it may be more difficult (or impossible) to bring
some types of claims against Moxian BVI in British Virgin Islands courts than it would be to bring similar claims against a U.S. company
in a U.S. court.
The
market for Moxian BVI shares may differ from the market for the Company shares.
Although
it is anticipated that the Moxian BVI ordinary shares will be authorized for listing on NASDAQ under the symbol “MOXC,” as
a company incorporated under the laws of the British Virgin Islands, shares of Moxian BVI may appeal to different institutional investors,
or impact the level of investment by current investors who may prefer or be required by internal guidelines to invest in companies that
are incorporated in the United States. Accordingly, the reorganization may impact our institutional investor base, or the level of their
respective investments in our securities, and may result in a change in the market prices, trading volume and volatility of the Moxian
BVI shares from those of the Company shares.
We
expect to incur transaction costs and adverse financial consequences in the year of completion of the merger.
We
expect a total of approximately $80,000
in transaction costs in connection with the merger,
which have been and will continue to be expensed as incurred. The substantial majority of these costs will be incurred regardless of
whether the merger is completed and prior to your vote on the proposal. We expect to incur costs and expenses, including professional
fees, to comply with the British Virgin Islands corporate and other laws. In addition, we expect to incur attorneys’ fees, accountants’
fees, filing fees, mailing expenses, proxy solicitation fees and financial printing expenses in connection with the merger, even if the
merger is not approved or completed. Please see the section entitled “Summary Pro Forma Financial Information” for more information
regarding these transaction costs.
The
merger also may negatively affect us by diverting attention of our management and employees from our operating business during the period
of implementation and by increasing other administrative costs and expenses.
Our
Board of Directors may choose to defer or abandon the merger.
Completion
of the merger may be deferred or abandoned, at any time, by action of our Board of Directors, whether before or after the Annual Meeting.
While we currently expect the merger to take place promptly after the proposal to adopt the merger agreement is approved at the Annual
Meeting, our Board of Directors may defer completion either before or for a significant time after the Annual Meeting or may abandon
the merger because of, among other reasons, changes in existing or proposed laws, our determination that the merger would involve tax
or other risks that outweigh their benefits, our determination that the level of expected benefits associated with the merger would otherwise
be reduced, a dispute with the taxation authorities over the merger (or certain aspects thereof), an unexpected increase in the cost
to complete the merger or any other determination by our Board of Directors that the merger would not be in the best interests of the
Company or its stockholders or that the merger would have material adverse consequences to the Company or its stockholders.
PROPOSAL
NO. 1
ELECTION
OF DIRECTORS AND DIRECTOR BIOGRAPHIES
(ITEM
1 ON THE PROXY CARD)
Information
Regarding the Company’s Directors and Nominees
A
brief biography of each Director follows. Our Board of Directors, upon the recommendation of the Corporate Governance and Nominating
Committee, has nominated five Directors for election to be on the Board of Directors for a one-year term expiring in 2022 or until their
successors are duly elected and qualified. You are asked to vote for these nominees to serve members of the Board of Directors. All candidates
for the Board have consented to serve if elected.
Hao
Qinghu
Age
— 59
Director
since 2016
Mr.
Hao Qinghu has more than 20 years of experience in managing business operations and business strategy. Since September, 2015 he has been
the General Manager of Moxian Beijing — a subsidiary of Moxian, Inc., in charge of Moxian Beijing’s overall operations. From
June 2014 until September 2015, Mr. Hao was a Deputy General Manager of Xinhua Huamei Investment Management Co., Ltd. From 2005 until
May 2014, Mr. Hao was a General Manager of Shandong Debang Construction Science and Technology Co., Ltd, where he was responsible for
day to day operations and business development. Mr. Hao received his EMBA from Tsinghua University. Mr. Hao was a board appointee of
Xinhua Huifeng Equity Centre (Limited Partnership). The Board of Directors believes that Mr. Hao should serve as a Director of the Company
based on his extensive experience in PRC company management.
Lionel
Choong Khuat Leok
Age
— 58
Director
since 2019
Mr.
Lionel Choong has been a director of the Company since 2019. Mr. Choong serves as a board advisor and a director for Really Sports Co,
a consultant and acting CFO for Global Regency Ltd (an electronic retail company), an acting CFO for Weyland Tech Inc. (a mobile application
OTCQX listed company), a consultant for Zenith Professionals Ltd (a corporate advisory company) and a director for Willing Co., Ltd.
(a private holding company). Mr. Choong obtained his Bachelor of Arts in Accountancy from London Guildhall University, United Kingdom
in 1984 and Master of Business Administration from Northwestern University, Kellogg School of Management and The Hong Kong University
of Science and Technology in 2002. The Board has determined that Mr. Choong is well-qualified to serve as an Independent Director of
the Registrant based on his wide range of experience in a variety of senior financial positions with companies in Hong Kong, the People’s
Republic of China, the United Kingdom and the United States.
William
Yap Guan Hong
Age
— 56
Director
since 2019
Mr.
William Yap has been a director of the Company since 2019. He has over 30 years of working experience in corporate finance, investment
management and business development. Mr. Yap is currently the Chief Financial Officer of 8i Enterprises Acquisition Corporation which
is listed on Nasdaq. Mr. Yap was a Director in Singapore Telecoms from 1998 to 2001, overseeing various portfolios, including Regional
Internet Investment and Business Marketing. He then joined the Ascendas Group, a subsidiary of the Jurong Town Hall Corporation, the
largest industrial land developer in Singapore with an asset base of more than US$1 billion, as its Executive Vice-President (New Business).
In 2004, he founded the Newton Group of Companies, based in Shanghai, focusing on business opportunities in the education and training
sectors in China. Between 2006-2011, he was responsible for originating proprietary private equity and venture deals in China for investment
funds in Singapore (Hupomone Capital Partners (Singapore) Pte Ltd (2009-2011) and Evia Capital Partners Pte Ltd (2006-2009)). Between
2016-2019, he was the Head of Investment Banking Division of Shanghai Pingmei Shenma Finance Leasing Private Limited. Mr. Yap obtained
his Bachelor of Arts (Physics) (Hons – 2nd Upper) and Master of Arts from the University of Oxford, United Kingdom. He is also
a Chartered Financial Analyst (CFA). The Board believes that Mr. William Yap should serve as an Independent Director of the Company based
on his extensive experience in corporate finance, investment management and business development.
Wendy
Wang Yingjie
Age
— 44
Director
since 2019
Ms.
Wendy Wang has been the President and Chief Executive Officer of Wetland Media, Inc in USA since July 2016. She is also a director of
Dinghaoyicheng Technology (Shanghai) Ltd. Co. Ms. Wang was the Chief Executive Officer of BZM Innovation Technology, a Fin-tech investment
company funding from a Chinese private corporate fund from November 2014 to June 2016. From October 2011 to October 2014, Ms. Wang was
a business partner at Shiatang Technology, where she was responsible for the operation and business strategy. From October 2006 to October
2011, Ms. Wang was the business development director of Lionbridge Technologies, Inc. (NASDAQ: LIOX) where she planned and implemented
project initiatives for projects and clients. Ms. Wang received her Master’s degree in Scientific, Technical and Medical Translation
with Translation Technology from Imperial College in UK in 2004, and her Bachelor’s degree in Foreign Languages, Literatures and
International Business from Tianjin Foreign Languages University in China in 1998. The Board believes that Ms. Wang should serve as an
Independent Director of the Company based on her extensive experience in the fin-tech and media industry.
Zhao
Yahui
Age
– 31
Director
since April 2021
Ms
Zhao Yahui obtained a Master’s degree in Financial Management from Loughborough University in the United Kingdom in 2013, having
first graduated with a Bachelor’s Degree in Hospitality and Travel Management from the Florida International University in June
2010. From August 2013 to December 2014, she worked as the Executive Assistant to the Chairman of Yangtai Chengxin Group where she was
involved in group investments and M&A related work. From June 2015 to the present, she is the Head of Department at Baidahuang Cultural
Tourism Co. Ltd. where she is responsible for market development and foreign investment and co-operation. The Board believes that Ms.
Zhao should serve as an independent director of the Company based on her experience.
Involvement
in Certain Legal Proceedings
To
the best of our knowledge, none of our directors or executive officers has been convicted in a criminal proceeding, excluding traffic
violations or similar misdemeanors, or has been a party to any judicial or administrative proceeding during the past ten years that resulted
in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or
state securities laws, or a finding of any violation of federal or state securities or commodities laws, any laws respecting financial
institutions or insurance companies, any law or regulation prohibiting mail or wire fraud in connection with any business entity or been
subject to any disciplinary sanctions or orders imposed by a stock, commodities or derivatives exchange or other self-regulatory organization,
except for matters that were dismissed without sanction or settlement. None of our directors, director nominees or executive officers
has been involved in any transactions with us or any of our directors, executive officers, affiliates or associates which are required
to be disclosed pursuant to the rules and regulations of the SEC.
Director
Independence
The
Board of Directors has reviewed the independence of our directors, applying the NASDAQ independence standards. Based on this review,
the Board of Directors determined that each of Lionel Choong, Wendy Wang, William Yap and Yahui Zhao are independent within the meaning
of the NASDAQ rules. In making this determination, our Board of Directors considered the relationships that each of these non-employee
directors has with us and all other facts and circumstances our Board of Directors deemed relevant in determining their independence.
As required under applicable NASDAQ rules, we anticipate that our independent directors will meet on a regular basis as often as necessary
to fulfill their responsibilities, including at least annually in executive session without the presence of non-independent directors
and management.
Governance
Structure
Currently,
our Chief Executive Officer is also our Chairman. The Board of Directors believes that, at this time, having a combined Chief Executive
Officer and Chairman is the appropriate leadership structure for the Company. In making this determination, the Board of Directors considered,
among other matters, the size of the Company as well as Mr. Hao’s experience and tenure of having been Chairman and Chief Executive
Officer, and felt that his experience, knowledge, and personality allowed him to serve ably as both Chairman and Chief Executive Officer.
Among the benefits of a combined Chief Executive Officer/Chairman considered by the Board of Directors is that such structure promotes
clearer leadership and direction for our Company and allows for a single, focused chain of command to execute our strategic initiatives
and business plans. We have not appointed a lead independent director for our Board of Directors, because we believe our independent
directors are encouraged to freely voice their opinions on a relatively small company board.
Risk
Oversight
The
Board oversees that the assets of the Company are properly safeguarded, that the appropriate financial and other controls are maintained,
and that the Company’s business is conducted wisely and in compliance with applicable laws and regulations and proper governance.
Included in these responsibilities is the Board of Directors’ oversight of the various risks facing the Company. In this regard,
the Board seeks to understand and oversee critical business risks. The Board does not view risk in isolation. Risks are considered in
virtually every business decision and as part of the Company’s business strategy. The Board recognizes that it is neither possible
nor prudent to eliminate all risk. Indeed, purposeful and appropriate risk-taking is essential for the Company to be competitive on a
global basis and to achieve its objectives.
While
the Board oversees risk management, Company management is charged with managing risk. The Company has internal processes and a strong
internal control environment to identify and manage risks and to communicate with the Board. The Board and the Audit Committee monitor
and evaluate the effectiveness of the internal controls and the risk management program at least annually. The Board implements its risk
oversight function both as a whole and through Committees. Much of the work is delegated to various Committees, which meet regularly
and report back to the full Board. All Committees play significant roles in carrying out the risk oversight function. In particular:
The
Audit Committee oversees risks related to the Company’s financial statements, the financial reporting process, accounting and legal
matters. The Audit Committee also oversees the internal audit function and the Company’s ethics programs, including the Codes of
Business Conduct. The Audit Committee members meet separately with representatives of the independent auditing firm and the Company’s
internal audit group; and
The
Compensation Committee evaluates the risks and rewards associated with the Company’s compensation philosophy and programs. The
Compensation Committee reviews and approves compensation programs with features that mitigate risk without diminishing the incentive
nature of the compensation. Management discusses with the Compensation Committee the procedures that have been put in place to identify
and mitigate potential risks in compensation.
Vote
Required
Proposal
No. 1 will be approved by a plurality of the total votes properly cast in person or by proxy at the Meeting by the holders of Common
Stock vote “FOR” the proposal. Abstentions and broker non-votes will have no effect on the result of the vote.
Recommendation
of the Board
The
Board unanimously recommends that you vote all of your shares “FOR” the election to the Board of all of the nominees described
in this Proposal No. 1.
BOARD
OF DIRECTORS AND CORPORATE GOVERNANCE
What
if a nominee is unwilling or unable to serve?
The
nominees listed in the Proxy Statement have agreed to serve as directors if elected. If for some unforeseen reason a nominee becomes
unwilling or unable to serve, proxies will be voted for a substitute nominee selected by the Board of Directors.
How
are directors compensated?
All
directors hold office until the expiration of their respective terms or until their successors have been duly elected and qualified.
There are no family relationships among our directors or executive officers. Officers are elected by and serve at the discretion of the
Board of Directors. Our non-employee directors on our Board of Directors receive the amounts set forth in their appointment letters,
which vary between $0 and $60,000 annually.
DIRECTOR
COMPENSATION
|
Name
|
|
Year
|
|
|
Fees
Earned or
Paid in Cash
($)
|
|
|
Stock
Awards
($)(4)
|
|
|
Option
Awards
($)
|
|
|
All Other
Compensation
($)
|
|
|
Total
($)
|
|
|
Qinghu Hao
|
|
|
2020
|
|
|
$
|
|
|
|
$
|
60,000
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
60,000
|
|
|
Lionel Choong
|
|
|
2020
|
|
|
|
|
|
|
|
36,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
36,000
|
|
|
William Yap
|
|
|
2020
|
|
|
|
|
|
|
|
13,500
|
|
|
|
-
|
|
|
|
-
|
|
|
|
13,500
|
|
|
Dr. David Cheang (1)
|
|
|
2020
|
|
|
|
|
|
|
|
13,500
|
|
|
|
-
|
|
|
|
-
|
|
|
|
13,500
|
|
|
Wendy Wang
|
|
|
2020
|
|
|
|
13,500
|
|
|
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
13,500
|
|
|
James Tan (2)
|
|
|
2020
|
|
|
|
-
|
|
|
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
Yahui Zhao (3)
|
|
|
2020
|
|
|
|
-
|
|
|
|
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
(1)
Dr. David Cheang resigned as a member of the Board effective February 28, 2021.
(2)
James Tan resigned as a member of the Board effective February 28, 2021.
(3)
Yahui Zhao was appointed as a member of the Board on April 1, 2021.
(4)
Director compensation was paid in shares in lieu of cash compensation.
How
does the Board determine which directors are independent?
The
Board of Directors reviews the independence of each director yearly. During this review, the Board of Directors considers transactions
and relationships between each director (and his or her immediate family and affiliates) and the Company and its management to determine
whether any such relationships or transactions are inconsistent with a determination that the director is independent in light of applicable
law, listing standards and the Company’s director independence standards. The Company believes that its independent directors are
deemed to be independent under the definition of independence provided by NASDAQ Listing Rule 5605(a)(2).
What
role does the Corporate Governance and Nominating Committee play in selecting nominees to the Board of Directors?
Two
of the primary purposes of the Board’s Corporate Governance and Nominating Committee are (i) to develop and implement policies
and procedures that are intended to ensure that the Board of Directors will be appropriately constituted and organized to meet its fiduciary
obligations to the Company and its shareholders and (ii) to identify individuals qualified to become members of the Board of Directors
and to recommend to the Board of Directors the director nominees for the annual meeting of shareholders. The Corporate Governance and
Nominating Committee is also responsible for considering candidates for membership on the Board of Directors submitted by eligible shareholders.
The Corporate Governance and Nominating Committee’s charter is available on the Company’s website at www.moxianglobal.com
under Investor Relations and in print upon request. The Corporate Governance and Nominating Committee of the Company’s Board of
Directors was the only entity or person to nominate and/or recommend any of the director nominees.
Are
the members of the Corporate Governance and Nominating Committee independent?
Yes.
All members of the Corporate Governance and Nominating Committee have been determined to be independent by the Board of Directors.
How
does the Corporate Governance and Nominating Committee identify and evaluate nominees for director?
The
Corporate Governance and Nominating Committee considers candidates for nomination to the Board of Directors from a number of sources.
Current members of the Board of Directors are considered for re-election unless they have notified the Company that they do not wish
to stand for re-election. The Corporate Governance and Nominating Committee also considers candidates recommended by current members
of the Board of Directors, members of management or eligible shareholders. From time to time the Board may engage a firm to assist in
identifying potential candidates, although the Company did not engage such a firm to identify any of the nominees for director proposed
for election at the meeting. The Corporate Governance and Nominating Committee evaluates all candidates for director, regardless of the
person or firm recommending such candidate, on the basis of the length and quality of their business experience, the applicability of
such candidate’s experience to the Company and its business, the skills and perspectives such candidate would bring to the Board
of Directors and the personality or “fit” of such candidate with existing members of the Board of Directors and management.
The Corporate Governance and Nominating Committee does not have a specific policy in place with regard to the consideration of diversity
when identifying director nominees; however, the Corporate Governance and Nominating Committee does consider diversity of opinion and
experience when nominating directors.
What
are the Corporate Governance and Nominating Committee’s policies and procedures for considering director candidates recommended
by shareholders?
The
Corporate Governance and Nominating Committee will consider all candidates recommended by shareholders. A shareholder wishing to recommend
a candidate must submit the following documents to the Secretary of the Company at Unit 911, Tower 2, Silvercord, 30 Canton Road, Tsimshatsui,
Hong Kong SAR, China:
|
|
●
|
a
recommendation that identifies the name and address of the shareholder and the person to be nominated;
|
|
|
●
|
the
written consent of the candidate to serve as a director of the Company, if elected;
|
|
|
●
|
a
description of all arrangements between the shareholders and such nominee pursuant to which the nomination is to be made; and
|
|
|
●
|
such
other information regarding the nominee as would be required to be included in a proxy statement filed pursuant to the proxy rules
of the SEC.
|
If
the candidate is to be evaluated by the Corporate Governance and Nominating Committee, the Secretary will request a detailed resume,
an autobiographical statement explaining the candidate’s interest in serving as a director of the Company, a completed statement
regarding conflicts of interest, and a waiver of liability for a background check from the candidate.
What
are the minimum qualifications required to serve on the Company’s Board of Directors?
All
members of the Board of Directors must possess the following minimum qualifications as determined by the Corporate Governance and Nominating
Committee:
|
|
●
|
A
director must demonstrate integrity, accountability, informed judgment, financial literacy, creativity and vision;
|
|
|
●
|
A
director must be prepared to represent the best interests of all Company shareholders, and not just one particular constituency;
|
|
|
●
|
A
director must have a record of professional accomplishment in his or her chosen field; and
|
|
|
●
|
A
director must be prepared and able to participate fully in Board activities, including membership on committees.
|
What
other considerations does the Corporate Governance and Nominating Committee consider?
The
Corporate Governance and Nominating Committee believes it is important to have directors from various backgrounds and professions in
order to ensure that the Board of Directors has a wealth of experiences to inform its decisions. Consistent with this philosophy, in
addition to the minimum standards set forth above, business and managerial experience and an understanding of financial statements and
financial matters are very important.
How
may shareholders communicate with the members of the Board of Directors?
Shareholders
and others who are interested in communicating directly with members of the Board of Directors, including communication of concerns relating
to accounting, internal accounting controls or audit matters, or fraud or unethical behavior, may do so by writing to the directors at
the following address:
Name
of Director or Directors
c/o
Secretary
Unit
911, Tower 2, Silvercord, 30 Canton Road
Tsimshatsui,
Hong Kong SAR, China
Does
the Company have a Code of Business Ethics and Conduct?
The
Company has adopted a Code of Business Ethics and Conduct, which is applicable to all directors, officers and associates of the Company,
including the principal executive officer and the principal financial and accounting officer. The complete text of the Code of Business
Ethics and Conduct is available on the Company’s web site at www.moxianglobal.com and is also available in print upon request.
The Company intends to post any amendments to or waivers from its Code of Business Ethics and Conduct (to the extent applicable to the
Company’s principal executive officer and principal financial and accounting officer) at this location on its web site.
How
often did the Board meet in 2020?
Our
Board held eight meetings and acted by unanimous written consent four times in connection with matters related to the fiscal year ended
September 30, 2020. The Board invites, but does not require, directors to attend the annual meeting of shareholders.
What
are the committees of the Board?
During
fiscal 2020, the Board of Directors had standing Audit, Corporate Governance and Nominating, and Compensation Committees. The members
of each of the Committees, their principal functions and the number of meetings held during the year ended September 30, 2020 are shown
below.
Compensation
Committee
The
members of the Compensation Committee are:
Wendy
Wang
William
Yap
Lionel
Choong
The
Compensation Committee did not hold any meetings during the year ended September 30, 2020. The Compensation Committee’s charter
is available on the Company’s website at www.moxianglobal.com under Investor Relations and in print upon request. The Compensation
Committee’s principal responsibilities include:
|
|
●
|
Making
recommendations to the Board of Directors concerning executive management organization matters generally;
|
|
|
●
|
In
the area of compensation and benefits, making recommendations to the Board of Directors concerning employees who are also directors
of the Company, consult with the CEO on matters relating to other executive officers, and make recommendations to the Board of Directors
concerning policies and procedures relating to executive officers;
|
|
|
●
|
Making
recommendations to the Board of Directors regarding all contracts of the Company with any officer for remuneration and benefits after
termination of regular employment of such officer;
|
|
|
●
|
Making
recommendations to the Board of Directors concerning policy matters relating to employee benefits and employee benefit plans, including
incentive compensation plans and equity based plans; and
|
|
|
●
|
Administering
the Company’s formal incentive compensation programs, including equity based plans.
|
The
Compensation Committee may not delegate its authority to other persons. Similarly, the Compensation Committee has not engaged a compensation
consultant to assist in the determination of executive compensation issues. While the Company’s executives will communicate with
the Compensation Committee regarding executive compensation issues, the Company’s executive officers do not participate in any
executive compensation decisions.
Audit
Committee
The
members of the Audit Committee are:
Lionel
Choong
Wendy
Wang
William
Yap
The
Audit Committee held four meetings during the year ended September 30, 2020. All members of the Audit Committee are independent, as such
term is defined by the NASDAQ Capital Market listing standards. The primary responsibility of the Audit Committee is to assist the Board
of Directors in monitoring the integrity of the Company’s financial statements and the independence of its external auditors. Our
Board has determined that each Audit Committee member has sufficient knowledge in financial and auditing matters to serve on the Audit
Committee. The Company believes that Mr. Choong Khuat Leok qualifies as an “audit committee financial expert” in accordance
with applicable NASDAQ Capital Market listing standards. In carrying out its responsibility, the Audit Committee undertakes to:
●
Review and recommend to the directors the independent auditors to be selected to audit the financial statements of the Company;
●
Meet with the independent auditors and management of the Company to review the scope of the proposed audit for the current year and the
audit procedures to be utilized, and at the conclusion thereof review such audit, including any comments or recommendations of the independent
auditors;
●
Review with the independent auditors and financial and accounting personnel the adequacy and effectiveness of the accounting and financial
controls of the Company. The Audit Committee elicits recommendations for the improvement of such internal control procedures or particular
areas where new or more detailed controls or procedures are desirable. The Audit Committee emphasizes the adequacy of such internal controls
to expose any payments, transactions, or procedures that might be deemed illegal or otherwise improper;
●
Review the internal accounting function of the Company, the proposed audit plans for the coming year and the coordination of such plans
with the Company’s independent auditors;
●
Review the financial statements contained in the annual report to shareholders with management and the independent auditors to determine
that the independent auditors are satisfied with the disclosure and contents of the financial statements to be presented to the shareholders;
●
Provide sufficient opportunity for the independent auditors to meet with the members of the Audit Committee without members of management
present. Among the items discussed in these meetings are the independent auditors’ evaluation of the Company’s financial,
accounting, and auditing personnel, and the cooperation that the independent auditors received during the course of the audit;
●
Review accounting and financial human resources and succession planning within the Company;
●
Submit the minutes of all meetings of the Audit Committee to, or discuss the matters discussed at each committee meeting with, the Board
of Directors; and
●
Investigate any matter brought to its attention within the scope of its duties, with the power to retain outside counsel for this purpose,
if, in its judgment, that is appropriate.
The
Audit Committee has established procedures for the receipt, retention and treatment of complaints regarding accounting, internal accounting
controls and auditing matters, including procedures for the confidential, anonymous submission by employees of concerns regarding questionable
accounting or auditing matters.
Corporate
Governance and Nominating Committee
The
members of the Corporate Governance and Nominating Committee are:
William
Yap
Wendy
Wang
Lionel
Choong
The
Corporate Governance and Nominating Committee did not hold any meetings during the fiscal year ended September 30, 2020. All members
of the Corporate Governance and Nominating Committee are independent, as such term is defined by the NASDAQ Capital Market listing standards.
The Corporate Governance and Nominating Committee undertakes to:
●
Identify individuals qualified to become members of the Board of Directors and to make recommendations to the Board of Directors with
respect to candidates for nomination for election at the next annual meeting of shareholders or at such other times when candidates surface
and, in connection therewith, consider suggestions submitted by shareholders of the Company;
●
Determine and make recommendations to the Board of Directors with respect to the criteria to be used for selecting new members of the
Board of Directors;
●
Oversee the process of evaluation of the performance of the Company’s Board of Directors and committees;
●
Make recommendations to the Board of Directors concerning the membership of committees of the Board and the chairpersons of the respective
committees;
●
Make recommendations to the Board of Directors with respect to the remuneration paid and benefits provided to members of the Board in
connection with their service on the Board or on its committees; and
●
Evaluate Board and committee tenure policies as well as policies covering the retirement or resignation of incumbent directors.
The
Board of Directors has determined to provide a process by which shareholders may communicate with the Board as a whole, a Board committee
or individual director. Shareholders wishing to communicate with the Board as a whole, a Board committee or an individual member may
do so by sending a written communication addressed to the Board of Directors of the Company or to the committee or to an individual director,
c/o Secretary, Moxian, Inc., Unit 911, Tower 2, Silvercord, 30 Canton Road, Tsimshatsui, Hong Kong SAR, China. All communications will
be compiled by the Secretary of the Company and submitted to the Board of Directors or the addressee not later than the next regular
Board meeting.
EXECUTIVE
OFFICERS
Hao
Qinghu
Chief
Executive Officer
Age
— 59
Mr.
Hao Qing Hu has more than 20 years of experience in managing business operations and business strategy. Since September, 2015 he has
been the General Manager of Moxian Beijing — a subsidiary of Moxian, Inc., in charge of Moxian Beijing’s overall operations.
From June 2014 until September 2015, Mr. Hao was a Deputy General Manager of Xinhua Huamei Investment Management Co., Ltd. From 2005
until May 2014, Mr. Hao was a General Manager of Shandong Debang Construction Science and Technology Co., Ltd, where he was responsible
for day to day operations and business development. Mr. Hao received his EMBA from Tsinghua University. Mr. Hao was a board appointee
of Xinhua Huifeng Equity Centre (Limited Partnership).
Tan
Wanhong
Chief
Financial Officer
Age
— 67
Mr.
Tan Wanhong has served as our Chief Financial Officer since July 25, 2016. Mr. Tan trained with Grant Thornton in Liverpool, UK and was
admitted as an Associate of the Institute of Chartered Accountants (England and Wales) in 1980. He started his working career with KPMG
Kuala Lumpur in 1981 and was promoted to be the Resident Manager of the Penang Office. In 1983, Mr. Tan joined one of his clients, Island
& Peninsular as the Group Financial Controller before leaving for Sime Darby, Malaysia’s largest Asian-based conglomerate in
1986. He had a successful career with Sime Darby, holding various senior positions over a span of 18 years but left in 2004 following
a reorganization of the group. In 2007, Mr. Tan joined Hong Leong Asia, Singapore on a specific assignment in China which he completed
in 2009. He then took the post of Head of Investor Relations with 361 Degrees International, a Mainland sportswear group listed on the
Stock Exchange of Hong Kong and spent the next six years as the spokesman of the Group to the international financial community.
EMPLOYMENT
AGREEMENTS WITH NAMED EXECUTIVE OFFICERS
Employment
Agreement with Mr. Hao Qinghu
Mr.
Hao does not have an employment agreement with the Company.
Employment
Agreement with Mr. Tan Wanhong
On
July 25, 2016, Moxian HK entered into an agreement with Mr. Tan Wanhong to serve in the role of Chief Financial Officer. Pursuant to
the terms of such employment agreement, Mr. Tan’s monthly base salary is RMB 40,000 (approximately $6,000). The employment agreement
may be terminated by either party by giving one month’s prior written notice, or payment in lieu of appropriate notice. Mr. Tan’s
employment may be terminated immediately without notice or payment in lieu, if among other things, Mr. Tan conducts himself in a way
that is inconsistent with the due and faithful discharge of his duties. The Company shall reimburse Mr. Tan for all reasonable out of
pocket expenses in connection with travel, entertainment and other expenses incurred in the performance of his duties. The payment in
lieu of notice of termination is calculated as one month’s salary equal to RMB 40,000 (approximately $6,000).
EXECUTIVE
COMPENSATION
SUMMARY
COMPENSATION TABLE
Set
forth below is information regarding the compensation paid during the year ended September 30, 2020 and 2019 to our principal executive
officer, principal financial officer and certain of our other executive officers, who are collectively referred to as “named executive
officers” elsewhere in this annual report.
|
Name and Principal Position
|
|
Year
|
|
|
Salary
($)
|
|
|
Fee
($)
|
|
|
Total
($)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tan Wanhong
|
|
|
2020
|
|
|
|
68,500
|
|
|
|
0
|
|
|
|
68,500
|
|
|
Chief Financial Officer
|
|
|
2019
|
|
|
|
69,802
|
|
|
|
0
|
|
|
|
69,802
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hao Qinghu(1)
|
|
|
2020
|
|
|
|
0
|
|
|
|
60,000
|
|
|
|
60,000
|
|
|
CEO
|
|
|
2019
|
|
|
|
0
|
|
|
|
60,000
|
|
|
|
60,000
|
|
|
(1)
|
Mr.
Hao Qing Hu did not receive a salary as a senior executive of the Company from September 29, 2017 to date. He received compensation
for serving as a director and Chairman of the Board.
|
We
had no outstanding equity incentive awards during the year ended September 30, 2020 or September 30, 2019.
Currently,
there is no equity compensation plan in place.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth information regarding the beneficial ownership of our common stock as of May 21, 2021 for our officers, directors,
director nominees and 5% or greater beneficial owners of common stock. There is no other person or group of affiliated persons, known
by us to beneficially own more than 5% of our common stock.
We
have determined beneficial ownership in accordance with the rules of the SEC. These rules generally attribute beneficial ownership of
securities to persons who possess sole or shared voting power or investment power with respect to those securities. The person is also
deemed to be a beneficial owner of any security of which that person has a right to acquire beneficial ownership within 60 days. Unless
otherwise indicated, the person identified in this table has sole voting and investment power with respect to all shares shown as beneficially
owned by him, subject to applicable community property laws.
The
percentage ownership information shown in the table below assumes that there were 19,341,529 shares of common stock outstanding as of
May 21, 2021.
|
Name of Beneficial Owner
|
|
Number of
Shares
Beneficially
Owned
|
|
|
Percentage of
Shares
Beneficially
Owned
|
|
|
Officers and Directors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hao Qinghu (1)
|
|
|
|
|
|
|
|
|
|
Director and CEO
|
|
|
837,602
|
|
|
|
4.33
|
%
|
|
|
|
|
|
|
|
|
|
|
|
He Weisu (2)
|
|
|
|
|
|
|
|
|
|
Manager
|
|
|
409,501
|
|
|
|
2.12
|
%
|
|
|
|
|
|
|
|
|
|
|
Wendy Wang Yingjie
Independent Director
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
Lionel Choong Khuat Leok
Independent Director
|
|
|
36,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
William Yap
Independent Director
|
|
|
18,600
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
Zhao Yahui
Independent Director
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
Tan Wanhong
Chief Financial Officer
|
|
|
-
|
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
All officers and directors as a group
(7 persons named above)
|
|
|
1,301,703
|
|
|
|
6.73
|
%
|
*
Less than 1% of our outstanding shares.
|
(1)
|
Hao
Qinghu is a partner in Beijing Xinhua Huifeng Equity Investment Center (Limited Partnership) which is a registered shareholder of
409,502 shares and is an affiliate of Hao Qinghu. Hao Qinghu also beneficially owned 428,100 shares which is registered in the name
of a nominee.
|
|
|
|
|
(2)
|
He
Weisu is a manager in Beijing Moxian and the Managing Partner of Beijing Xinhua Huifeng Investment Center (Limited Partnership).
He is also an affiliate of Hao Qinghu.
|
|
5% Securities Holders
|
|
|
|
|
|
|
|
Global Innovative Investment Group Limited
|
|
|
1,983,000
|
|
|
|
10.25
|
%
|
|
Yang Ke
|
|
|
1,700,000
|
|
|
|
8.79
|
%
|
|
Chen Xia Ling
|
|
|
1,000,000
|
|
|
|
5.17
|
%
|
|
Fu An Ren
|
|
|
1,000,000
|
|
|
|
5.17
|
%
|
|
8i Capital Limited
|
|
|
1,000,000
|
|
|
|
5.17
|
%
|
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Exchange Act requires our officers and directors, and persons who own more than ten percent of a registered class of our
equity securities, to file reports of securities ownership and changes in such ownership with the SEC. Officers, directors and stockholders
owning more than ten percent of our equity securities also are required by rules promulgated by the SEC to furnish us with copies of
all Section 16(a) forms they file. Based solely upon a review of the copies of such forms furnished to us, we cannot be certain that
Section 16(a) filing requirements were timely as of the date of this report.
Certain
Relationships and Related Transactions
There
are no transactions since October 1, 2018, in which the amount involved in the transaction exceeded or will exceed the lesser of $120,000
or one percent of the average of our total assets as at the year-end for the last two completed fiscal years, and to which any of our
directors, executive officers or beneficial holders of more than 5% of our capital stock, or any immediate family member of, or person
sharing the household with, any of these individuals, had or will have a direct or indirect material interest.
Our
policy is that a contract or transaction either between the Company and a director, or between a director and another company in which
he is financially interested is not necessarily void or void-able if the relationship or interest is disclosed or known to the board
of directors and the stockholders are entitled to vote on the issue, or if it is fair and reasonable to our Company.
PROPOSAL
NO. 2
RATIFICATION
OF APPOINTMENT OF
INDEPENDENT
registered public accounting firm
(ITEM
2 ON THE PROXY CARD)
The
Audit Committee has selected Centurion ZD & Co. (“Centurion”) to serve as the independent registered public accounting
firm of the Company for the fiscal years ending September 30, 2021.
We
are asking our stockholders to ratify the selection of Centurion as our independent registered public accounting firm. In the event our
stockholders fail to ratify the appointment, the Audit Committee may reconsider this appointment.
We
have been advised by Centurion that neither the firm nor any of its associates had any relationship with our Company other than the usual
relationship that exists between independent registered public accountant firms and their clients during the last fiscal year. Representatives
of Centurion are not expected to attend the Meeting in person and therefore are not expected to be available to respond to any questions.
As a result, representatives of Centurion will not make a statement at the Meeting.
What
am I voting on?
A
proposal to ratify the appointment of Centurion as the Company’s independent registered public accounting firm for the fiscal year
ending September 30, 2021 (“Fiscal Year 2021”). The Audit Committee of the Board of Directors has appointed Centurion ZD
CPA & Co to serve as the Company’s Fiscal Year 2021 independent registered public accounting firm. Although the Company’s
governing documents do not require the submission of this matter to shareholders, the Board of Directors considers it desirable that
the appointment of Centurion be ratified by shareholders.
Has
the Company changed its independent registered public accounting firm during its two most recent fiscal years?
No.
Centurion served as the Company’s independent registered public accountant for the past two fiscal years.
What
services does Centurion ZD CPA & Co provide?
Audit
services provided by Centurion for Fiscal Year 2021 will include the examination of the consolidated financial statements of the Company
and services related to periodic filings made with the SEC.
What
if this proposal is not approved?
If
the appointment of Centurion is not ratified, the Audit Committee of the Board of Directors will reconsider the appointment.
Fees
Paid to Independent Registered Public Accounting Firm
Audit
Fees
Centurion’s
fees for the annual audit of our financial statements were $77,714 and $93,750 for the 2020 and 2019 fiscal years, respectively.
Audit
Related Fees
The
Company has not paid Centurion for audit-related services in each of the 2020 and 2019 fiscal years.
Tax
Fees
The
Company has not paid Centurion for tax services in each of the 2020 and 2019 fiscal years.
All
Other Fees
The
Company has not paid Centurion for any other services in each of the 2020 and 2019 fiscal years.
Audit
Committee Pre-Approval Policies
Under
the Sarbanes-Oxley Act of 2002, all audit and non-audit services performed by our auditors must be approved in advance by our Audit Committee
to assure that such services do not impair the auditors’ independence from us. Before Centurion was engaged by the Company to render
audit or non-audit services, the engagement was approved by the Company’s audit committee. All services rendered by Centurion have
been so approved.
Percentage
of Hours
The
percentage of hours expended on the principal accountants’ engagement to audit our consolidated financial statements for Fiscal
Year 2020 that were attributed to work performed by persons other than Centurion ZD CPA & Co.’s full-time permanent employees
was zero percent.
Vote
Required
Proposal
No. 2 (the ratification of the appointment of Centurion to serve as our independent registered public accounting firm for the fiscal
year ending September 30, 2021) will be approved if a majority of the total votes properly cast in person or by proxy at the Meeting
by the holders of common stock vote “FOR” the proposal. Abstentions and broker non-votes will have no effect on the result
of the vote.
Unless
marked to the contrary, the shares represented by the enclosed proxy card will be voted “FOR” ratification of the appointment
of Centurion as the independent registered public accountants of the Company.
Recommendation
of the Board
The
Board unanimously recommends that you vote all of your shares “FOR” the ratification of Centurion ZD CPA & Co. as independent
registered public accountants as described in this Proposal No. 2.
AUDIT
COMMITTEE REPORT
Audit
Committee Report
The
primary purpose of the Audit Committee is to assist the Board in fulfilling its responsibility to oversee our financial reporting activities.
The Audit Committee is responsible for reviewing with both our independent registered public accounting firm and management, our accounting
and reporting principles, policies and practices, as well as our accounting, financial and operating controls and staff. The Audit Committee
has reviewed and discussed our audited financial statements with management, and has discussed with our independent registered public
accounting firm the matters required to be discussed by Statement on Auditing Standards No. 61, as amended (Codification of Statements
on Auditing Standards, AU 380), as adopted by the Public Company Accounting Oversight Board (the “PCAOB”) in
Rule 3200T. Additionally, the Audit Committee has received the written disclosures and the letter from our independent registered public
accounting firm, as required by the applicable requirements of the PCAOB, and has discussed with the independent registered public accounting
firm the independent registered public accounting firm’s independence. Based upon such review and discussion, the Audit Committee
recommended to the Board that the audited financial statements be included in our Annual Report on Form 10-K for the last fiscal year
ended September 30, 2020 for filing with the SEC.
Lionel
Choong
Wendy
Wang
William
Yap
The
information contained in this Proxy Statement with respect to the Audit Committee’s report above and the independence of the members
of the Audit Committee shall not be deemed to be “soliciting material” or to be “filed” with the SEC, nor shall
such information be incorporated by reference into any future filing under the Securities Act of 1933, as amended (the “Securities
Act”), or the Exchange Act, except to the extent that the Company specifically incorporates it by reference in such filing.
Who
served on the Audit Committee of the Board of Directors during fiscal year 2020?
The
members of the Audit Committee as of September 30, 2020 were Lionel Choong, Wendy Wang and William Yap. Each member of the Audit Committee
is independent under the rules of the SEC and the NASDAQ Capital Market. Lionel Choong currently serves as Chair of the Audit Committee,
is an “audit committee financial expert” as such term is defined in Item 407(d)(5) of Regulation S-K promulgated under the
Exchange Act.
What
document governs the activities of the Audit Committee?
The
Audit Committee acts under a written charter, which sets forth its responsibilities and duties, as well as requirements for the Audit
Committee’s composition and meetings. The Audit Committee Charter is available on the Company’s website at www.moxianglobal.com
under Investor Relations.
How
does the Audit Committee conduct its meetings?
During
fiscal 2020, the Audit Committee met with the senior members of the Company’s financial management team and the Company’s
independent registered public accounting firm. The Audit Committee’s agenda was established by the Chairman. At each meeting, the
Audit Committee reviewed and discussed various financial and regulatory issues. The Audit Committee also had private, separate sessions
from time to time with representatives of the Company’s independent registered public accounting firm, at which meetings candid
discussions of financial management, accounting and internal control issues took place.
Does
the Audit Committee review the periodic reports and other public financial disclosures of the Company?
The
Audit Committee reviews each of the Company’s quarterly and annual reports, including Management’s Discussion of Results
of Operations and Financial Condition. As part of this review, the Audit Committee discusses the reports with the Company’s management
and considers the audit and review reports prepared by the independent registered public accounting firm about the Company’s quarterly
and annual reports, as well as related matters such as the quality (and not just the acceptability) of the Company’s accounting
principles, alternative methods of accounting under generally accepted accounting principles and the preferences of the independent registered
public accounting firm in this regard, the Company’s critical accounting policies and the clarity and completeness of the Company’s
financial and other disclosures.
What
is the role of the Audit Committee in connection with the financial statements and controls of the Company?
Management
of the Company has primary responsibility for the financial statements and internal control over financial reporting. The independent
registered public accounting firm has responsibility for the audit of the Company’s financial statements and internal control over
financial reporting. The responsibility of the Audit Committee is to oversee financial and control matters, among other responsibilities
fulfilled by the Audit Committee under its charter. The Audit Committee meets regularly with the independent registered public accounting
firm, without the presence of management, to ensure candid and constructive discussions about the Company’s compliance with accounting
standards and best practices among public companies comparable in size and scope to the Company. The Audit Committee also regularly reviews
with its outside advisors, material developments in the law and accounting literature that may be pertinent to the Company’s financial
reporting practices.
What
has the Audit Committee done with regard to the Company’s audited financial statements for fiscal 2020?
The
Audit Committee has:
|
|
●
|
reviewed
and discussed the audited financial statements with the Company’s management; and
|
|
|
●
|
discussed
with Centurion, the Company’s independent registered public accounting firm for the 2020 fiscal year, the matters required
to be discussed by Statement on Auditing Standards No. 61, Communication with Audit Committees, as amended.
|
Has
the Audit Committee considered the independence of the Company’s auditors?
The
Audit Committee has received from Centurion the written disclosures and the letter required by Independence Standards Board Standard
No. 1, Independence Discussions with Audit Committees, and the Audit Committee has discussed with Centurion about its independence. The
Audit Committee has concluded that Centurion is independent from the Company and its management.
Has
the Audit Committee made a recommendation regarding the audited financial statements for fiscal 2020?
Based
upon its review and the discussions with management and the Company’s independent registered public accounting firm, the Audit
Committee recommended to the Board of Directors that the audited consolidated financial statements for the Company be included in the
Company’s Annual Report on Form 10-K for fiscal 2020.
Has
the Audit Committee reviewed the fees paid to the independent registered public accounting firm during fiscal 2020
The
Audit Committee has reviewed and discussed the fees paid to Centurion during 2020 for audit, audit-related, tax and other services, which
are set forth below under “Fees Paid to Independent Registered Public Accounting Firm.”
Who
prepared this report?
This
report has been furnished by the members of the Audit Committee:
Lionel
Choong, (Chair), Wendy Wang and William Yap.
PROPOSAL
NO. 3
APPROVAL OF THE ADOPTION OF THE MERGER AGREEMENT
(ITEM
3 ON THE PROXY CARD)
The
Merger Agreement
The
following includes a brief summary of the material provisions of the Merger Agreement, a copy of which is attached as Appendix
A and incorporated by reference into this Proxy Statement. We encourage you to read the Merger Agreement in its entirety
for a more complete description of the merger. In the event of any discrepancy between the terms of the Merger Agreement and the
following summary, the Merger Agreement will control.
Introduction
The
Merger Agreement you are being asked to adopt at the Annual Meeting provides for a merger that would result in your shares of the Company
common stock being converted into the right to receive an equal number of ordinary shares in Moxian BVI, a business company incorporated
under the laws of the British Virgin Islands. Under the Merger Agreement, Moxian BVI, a wholly owned subsidiary of the Company, will
merge with and into the Company, with Moxian BVI surviving the merger. If the Merger Agreement is adopted by the stockholders, we anticipate
that the merger will become effective on [ ], 2021 or such date subsequent thereto as permitted under BVI law. Following the merger,
Moxian BVI will own and continue to conduct our business in substantially the same manner as is currently being conducted by the Company
and its subsidiaries. Immediately following the merger, you will own an interest in Moxian BVI, which will be managed by the same Board
of Directors and executive officers that managed the Company immediately prior to the merger. Additionally, the consolidated assets and
employees of Moxian BVI will be the same as those of the Company immediately prior to the merger.
The
Parties to the Merger
The
Company has been in the O2O (“Online-to-Offline”) business since its inception until the fiscal year ended September 30,
2018. We developed an online platform for small and medium sized enterprises (“SMEs”) with physical stores to conduct business
online, interact with existing customers and obtain new customers. We developed products and services designed to allow our clients to
conduct targeted advertising campaigns and promotions and attract potential customers.
On
December 31, 2015, the Company entered into an Exclusive Partnership Agreement with Xinhua New Media Culture Communication Co. Ltd. (“Xinhua
New Media”). Xinhua New Media is part of the Xinhua News Agency, the official news agency of China. Xinhua New Media has developed
an App that has a user population in the region of 120 million, many of whom are government employees and senior executives of quasi-government
bodies and agencies. Under the Agreement, the Company has the exclusive rights to operate the gaming channel on the Xinhua New Media
app and can sell advertisement space on any part of the App.
The
Company ceased its operations in the O2O business described above as of September 30, 2018, following the withdrawal of its strategic
partner, the Shanghai Shewn Wine Company Limited. This part of its operations necessitated the deployment of a large sales force and
the constant upgrading of its mobile application, in the face of intense competition in an industry dominated by a handful of larger,
well capitalized players such as Alipay and WeChat. The Company decided to continue its operations in digital advertising but has halted
the operation of its App. The Company has since continued as a general agent for the Xinhua App, and is also the exclusive operator of
its Games Channel.
Moxian
BVI is a newly formed business company incorporated under the laws of the British Virgin Islands. A business company under the laws of
the British Virgin Islands is one which receives such registration as a result of satisfying the Registrar of Companies in the British
Virgin Islands that it conducts its operations mainly outside of the British Virgin Islands and is as a result exempted from complying
with certain provisions of the British Virgin Islands Companies Act, such as the general requirement to file an annual return of its
shareholders with the Registrar of Companies, and is permitted flexibility in certain matters, such as the ability to register by way
of continuation in another jurisdiction and be deregistered in the British Virgin Islands. Moxian BVI does not have a significant amount
of assets or liabilities and has not engaged in any business since its formation other than activities associated with its anticipated
participation in the merger. As mentioned above, following the merger, Moxian BVI, together with its subsidiaries, will own and continue
to conduct our business in substantially the same manner as is currently being conducted by the Company and its subsidiaries.
The
principal executive offices of each of the Company and Moxian BVI are located at Unit 911, Tower 2, Silvercord, 30 Canton Road, Tsimshatsui,
Hong Kong SAR, China 100190, and the telephone number of each company is +852 2961 4888.
Background
and Reasons for the Merger
We
believe the merger, which would change our place of incorporation from the United States to the British Virgin Islands, is consistent
with our international corporate strategy and would allow us to reduce operational, administrative, legal and accounting costs over the
long term.
Our
growth corporate strategy has been focused on major developing economies such as China. Our corporate objective has been to enhance the
competitive position and market share of our online platform and online gaming business with attractive growth potential in selective
geographic markets. To achieve this goal, our strategy has been focused on our core strengths and aligned with product offerings in the
major developing economies, primarily China.
Our
customers have been primarily based in China. We intend to foster a very close relationship with our clients in the principal cities
of Beijing and Shanghai in order to achieve maximum output and benefits.
We
currently have no business operations in the United States, and we believe there is no particular business reason to remain a company
incorporated, and to maintain key corporate functions, in the United States. We believe that by reincorporating to a jurisdiction outside
the United States, we will be able to qualify as a “foreign private issuer” under the rules and regulations of the SEC and
thereby reduce our operational, administrative, legal and accounting costs. We have chosen to reorganize under the laws of the British
Virgin Islands because of its political and economic stability, effective judicial system, absence of exchange control or currency restrictions
and availability of professional and support services. We could have selected a different jurisdiction outside of the United States,
but we believe many non-Chinese companies operating in China are incorporated in the British Virgin Islands and as a result many of our
current and potential strategic partners have substantial experience doing business with British Virgin Islands companies and corporate
structures. We also believe that being incorporated in the British Virgin Islands could provide us with additional flexibility to pursue
listings on international stock exchanges, such as the Hong Kong Stock Exchange, should we desire to do so in the future. For example,
we understand that historically the companies that have been accepted for listing on the Hong Kong Stock Exchange have generally been
domiciled in China, Hong Kong, the British Virgin Islands or the Cayman Islands.
As
noted, following the completion of the merger, Moxian BVI is expected to qualify as a “foreign private issuer” under the
rules and regulations of the SEC and we expect that the reduced reporting obligations associated with being a foreign private issuer
will reduce operational, administrative, legal and accounting costs in the long term. Moxian BVI will remain subject to the mandates
of the Sarbanes-Oxley Act, and, as long as Moxian BVI’s ordinary shares are listed on the NASDAQ, the governance and disclosure
rules of that stock exchange. However, as a foreign private issuer, Moxian BVI will be exempt from certain rules under the Exchange Act
that would otherwise apply if Moxian BVI were a company incorporated in the United States or did not meet the other conditions to qualify
as a foreign private issuer. For example:
|
|
●
|
Moxian
BVI may include in its SEC filings financial statements prepared in accordance with U.S. GAAP or with IFRS as issued by the IASB
without reconciliation to U.S. GAAP;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to provide as many Exchange Act reports, or as frequently or as promptly, as U.S. companies with securities
registered under the Exchange Act. For example, Moxian BVI will not be required to file current reports on Form 8-K within four business
days from the occurrence of specific material events. Instead, Moxian BVI will need to promptly furnish reports on Form 6-K any information
that Moxian BVI (a) makes or is required to make public under the laws of the British Virgin Islands, (b) files or is required to
file under the rules of any stock exchange or (c) otherwise distributes or is required to distribute to its shareholders. Unlike
Form 8-K, there is no precise deadline by which Form 6-K must be furnished. In addition, Moxian BVI will not be required to file
its annual report on Form 10-K, which may be due as soon as 60 days after its fiscal year end. As a foreign private issuer, Moxian
BVI will be required to file an annual report on Form 20-F within four months after its fiscal year end;
|
|
|
●
|
Moxian
BVI will not be required to provide the same level of disclosure on certain issues, such as executive compensation;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to conduct advisory votes on executive compensation;
|
|
|
|
|
|
|
●
|
Moxian
BVI will be exempt from filing quarterly reports under the Exchange Act with the SEC;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be subject to the requirement to comply with Regulation FD, which imposes certain restrictions on the selected disclosure
of material information;
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to comply with the sections of the Exchange Act regulating the solicitation of proxies, consents or authorizations
in respect of a security registered under the Exchange Act; and
|
|
|
|
|
|
|
●
|
Moxian
BVI will not be required to comply with Section 16 of the Exchange Act requiring insiders to file public reports of their stock ownership
and trading activities and establishing insider liability for profits realized from any “short-swing” trading transaction.
|
Moxian
BVI expects to take advantage of these exemptions if the merger is effected. Accordingly, after the completion of the merger, if you
hold Moxian BVI securities, you may receive less information about Moxian BVI and its business than you currently receive with respect
to the Company and be afforded less protection under the U.S. federal securities laws than you are entitled to currently. However, consistent
with our policy of seeking input from, and engaging in discussions with, our stockholders, on executive compensation matters, Moxian
BVI intends to provide disclosure relating to its executive compensation philosophy, policies and practices and conduct an advisory vote
on executive compensation once every three years after the merger is effected. However, Moxian BVI expects to review this practice after
the next such advisory vote and may at that time or in the future determine to conduct such advisory votes more frequently or to not
conduct them at all.
Additionally,
as a foreign private issuer, Moxian BVI will be permitted to follow corporate governance practices in accordance with British Virgin
Islands laws in lieu of certain NASDAQ corporate governance standards, such as the following NASDAQ corporate governance standards requiring
that:
|
|
●
|
the
majority of the board of directors be comprised of independent directors;
|
|
|
|
|
|
|
●
|
executive
compensation be determined by independent directors or a committee of independent directors;
|
|
|
|
|
|
|
●
|
director
nominees be selected, or recommended for selection by the board of directors, by independent directors or a committee of independent
directors;
|
|
|
|
|
|
|
●
|
an
audit committee be comprised of at least three members, each of whom is an independent director and one of whom has finance and accounting
experience; and
|
|
|
|
|
|
|
●
|
all
related party transactions be reviewed by the audit committee or another independent body of the board of directors.
|
Campbells,
our British Virgin Islands counsel, has advised us that there are no comparable British Virgin Islands laws related to the above corporate
governance standards. Notwithstanding the foregoing, we do not intend to initially rely on any NASDAQ exemptions or accommodations for
foreign private issuers following the merger.
We
believe the merger and the related reorganization will enhance stockholder value. However, we cannot predict what impact, if any, the
merger and reorganization will have in the long term in light of the fact that the achievement of our objectives depends on many things,
including, among other things, future laws and regulations, as well as the development of our business.
For
a discussion of the risk factors associated with the merger and reorganization, please see the section entitled “Risk Factors and
Caution Regarding Forward-Looking Statements—Risks Relating to the Merger and Reorganization.”
Disadvantages
of Reorganizing in the British Virgin Islands
There
are certain disadvantages that accompany reorganizing in the British Virgin Islands, including:
|
|
●
|
The
British Virgin Islands has a different body of securities laws and corporate laws as compared to the United States and may provide
significantly less protection to investors;
|
|
|
|
|
|
|
●
|
British
Virgin Islands companies may not have standing to sue before the federal courts of the United States; and
|
|
|
|
|
|
|
●
|
Moxian
BVI’s constitutional documents do not contain provisions requiring that disputes, including those arising under the securities
laws of the United States, between it and our officers, directors and shareholders be arbitrated.
|
Moxian
BVI’s corporate affairs are governed by Moxian BVI’s memorandum and articles of association, the Companies Act and the common
law of the British Virgin Islands. The rights of shareholders to take action against the directors and officers of Moxian BVI, actions
by minority shareholders and the fiduciary responsibilities of our directors to us under British Virgin Islands law are to a large extent
governed by the common law of the British Virgin Islands. The common law of the British Virgin Islands is derived in part from comparatively
limited judicial precedent in the British Virgin Islands, as well as from English common law, which has persuasive, but not binding,
authority on a court in the British Virgin Islands. The rights of our shareholders and the fiduciary responsibilities of our directors,
although clearly established under British Virgin Islands law, are not specifically prescribed in statute or a particular document in
the same way that they are in certain statutes or judicial precedent in some jurisdictions in the United States.
Additionally,
a significant portion of our operations are conducted in the PRC, and a significant portion of our assets are located in the PRC. After
the merger, a majority of Moxian BVI’ directors and all of its executive officers will continue to reside outside of the United
States, and all or a substantial portion of such persons’ assets are or may be located outside the United States. As a result,
it may be difficult for you to effect service of process within the United States upon Moxian BVI or such persons, or to enforce against
them in courts of the United States, British Virgin Islands or PRC, judgments obtained in United States courts, including judgments predicated
upon the civil liability provisions of the securities laws of the United States or any state in the United States.
The
Merger
The
steps that have been taken to date, and that will be taken, to complete the merger are:
|
|
●
|
The
Company has formed Moxian BVI, with the Company holding one ordinary share issued by Moxian BVI.
|
|
|
|
|
|
|
●
|
Following
the Annual Meeting, provided we have obtained the requisite stockholder approval, (i) the Company will merge with and into Moxian
BVI, with Moxian BVI surviving, and (ii) the single ordinary share of Moxian BVI issued and outstanding and registered in the name
of the Company shall be surrendered for nil consideration by the Company upon which the Company shall cease to be entitled to any
rights in respect of such share and shall be removed from the register of members of Moxian BVI with respect to such share and the
surrendered share shall be cancelled. All outstanding shares of the Company common stock will be converted into the right to receive
an equal number of ordinary shares in Moxian BVI, which shares will be issued by Moxian BVI as part of the merger.
|
|
|
●
|
As
a result, the existence of the Company will, upon completion of the merger, cease and Moxian BVI shall continue as the surviving
entity.
|
Immediately
prior to the Effective Time, all outstanding and unexercised portions of each option, warrant and security exercisable or convertible
by its terms into the common stock of the Company (including convertible promissory notes) if any, whether vested or unvested, which
is outstanding immediately prior to the Effective Time (each, a “Company Convertible Securities”) shall be assumed by Moxian
BVI and shall be deemed to constitute an option, warrant or convertible security, as the case may be, to acquire the same number of ordinary
shares in Moxian BVI as the holder of such Company Convertible Securities would have been entitled to receive had such holder exercised
or converted such Company Convertible Securities in full immediately prior to the Effective Time (not taking into account whether such
Company Convertible Securities was in fact exercisable or convertible at such time), at the same exercise price per share, and shall,
to the extent permitted by law and otherwise reasonably practicable, have the same term, exercisability, vesting schedule, status and
all other material terms and conditions; and Moxian BVI shall take all steps to ensure that a sufficient number of ordinary shares is
reserved for the exercise of such Company Convertible Securities.
The
Merger Agreement may be amended, modified or supplemented at any time before or after it is adopted by the stockholders of the Company.
However, after adoption by the stockholders, no amendment, modification or supplement may be made or effected that requires further approval
by the Company stockholders without obtaining that approval.
Possible
Abandonment
Pursuant
to the Merger Agreement, the Board of Directors of the Company may exercise its discretion to terminate the Merger Agreement, and therefore
abandon the merger, at any time prior to the Effective Time, including after the adoption of the Merger Agreement by the Company’s
stockholders. Please see the section entitled “Risk Factors and Caution Regarding Forward-Looking Statements—Risks Relating
to the Merger and Reorganization—Our Board of Directors may choose to defer or abandon the merger.”
Additional
Agreements
Moxian
BVI expects to enter into indemnification agreements with those directors, executive officers and other officers and employees (including
officers and employees of its subsidiaries) who currently have indemnification agreements with the Company. The Moxian BVI indemnification
agreements will be substantially similar to the Company’s existing indemnification agreements and will generally require that Moxian
BVI indemnify and hold an indemnitee harmless to the fullest extent permitted by law for liabilities arising out of the indemnitee’s
current or past association with Moxian BVI, any subsidiary of Moxian BVI or another entity where he or she is or was serving at Moxian
BVI’s request as a director or officer or in a similar capacity that involves services with respect to any employee benefit plan.
The indemnification agreements also provide for the advancement of defense expenses by Moxian BVI.
In
addition, Moxian BVI’s shareholder approval (from and after the Effective Time) of the Company equity compensation plans to be
assumed by Moxian BVI for purposes of Section 422(b) of the Code, was established through approval of such plan by the Company, as the
sole shareholder of Moxian BVI, immediately prior to the merger. As part of the merger, Moxian BVI will assume the Company’s any
plans and programs as provided in the Merger Agreement as may be amended immediately prior to the Effective Time. Although the merger
will constitute a change in control for purposes of the foregoing equity compensation plans and other agreements with the Company’s
executive officers, we will not incur any obligation as a result of the merger under the terms of the plans and agreements since Moxian
BVI will assume the plans and agreements and any such obligation will be waived in connection with the merger, if applicable.
Conditions
to Completion of the Merger
The
following conditions must be satisfied or waived, if allowed by law, to complete the merger and reorganization:
|
|
1.
|
the
Merger Agreement has been adopted by the requisite vote of stockholders of the Company;
|
|
|
|
|
|
|
2.
|
none
of the parties to the Merger Agreement is subject to any decree, order or injunction that prohibits the consummation of the merger;
|
|
|
|
|
|
|
3.
|
the
registration statement of which this Proxy Statement is a part has been declared effective by the SEC and no stop order is in effect;
|
|
|
|
|
|
|
4.
|
the
Moxian BVI ordinary shares to be issued pursuant to the merger have been authorized for listing on NASDAQ, subject to official notice
of issuance and satisfaction of other standard conditions;
|
|
|
|
|
|
|
5.
|
all
material consents and authorizations of, filings or registrations with, and notices to, any governmental or regulatory authority
required of the Company, Moxian BVI or their subsidiaries to consummate the merger have been obtained or made; and
|
|
|
|
|
|
|
6.
|
the
representations and warranties of the parties to the Merger Agreement set forth in the Merger Agreement are true and correct in all
material respects, and the covenants of the parties set forth in the Merger Agreement (other than those to be performed after the
Effective Time) have been performed in all material respects.
|
Our
Board of Directors currently does not anticipate any circumstances in which it would waive the conditions listed above; however, in the
event it determines that a waiver of any such conditions is in the best interests of our stockholders and that such change to the terms
of the merger does not make the disclosure provided to our stockholders materially misleading (for example, if a representation in the
Merger Agreement is not true but there is otherwise no harm to the Company or our stockholders), our Board of Directors will not resolicit
shareholder approval of the merger. If a waiver of any condition listed above would make the disclosure provided to our stockholders
materially misleading, our Board of Directors will resolicit shareholder approval of the merger. Additionally, our Board of Directors
reserves the right to defer or abandon the merger as well for the reasons described under “Risk Factors and Caution Regarding Forward-
Looking Statements—Risks Relating to the Merger and Reorganization—Our Board of Directors may choose to defer or abandon
the merger.”
Effective
Time
Provided
that we have obtained the requisite stockholder approval at the Annual Meeting, we anticipate that the merger will become effective on
[ ], 2021 or such date subsequent thereto as permitted under BVI law. Our Board of Directors will have the right, however, to defer or
abandon the merger at any time if it concludes that completion of the merger would not be in the best interests of the Company or our
stockholders.
Management
of Moxian BVI
Immediately
prior to the Effective Time, the directors and officers of the Company at such time will be elected or appointed as the directors and
officers of Moxian BVI (to the extent the directors and officers of Moxian BVI and the Company are not already identical), each such
person to have the same office(s) with Moxian BVI (and the same class designations and committee memberships in the case of directors)
as he or she held with the Company, with the directors to serve until the earlier of the next meeting of the Moxian BVI shareholders
at which an election of directors of their respective classes is required or until their successors are elected or appointed (or their
earlier death, disability or retirement).
Recommendation
and Required Vote
The
affirmative vote of the holders of a majority of the outstanding shares of the Company’s common stock entitled to vote at the Annual
Meeting is required to approve the proposal to adopt the Merger Agreement. Our Board of Directors believes that the merger, to be effected
by the Merger Agreement, is advisable and in the best interests of the Company and our stockholders. ACCORDINGLY, OUR BOARD OF
DIRECTORS HAS UNANIMOUSLY APPROVED THE MERGER AND THE MERGER AGREEMENT. THE BOARD OF DIRECTORS RECOMMENDS THAT STOCKHOLDERS VOTE “FOR”
THE ADOPTION OF THE MERGER AGREEMENT.
Regulatory
Approvals
The
only governmental or regulatory approvals or actions that are required to complete the merger are compliance with U.S. federal and state
securities laws, NASDAQ rules and regulations and Nevada corporate law (including the filing with the Secretary of State of the State
of Nevada of a certificate of merger).
Rights
of Dissenting Stockholders
Under
the NRS, you will not have appraisal rights in connection with the merger because, among other reasons, the Moxian BVI shares you receive
in the merger will be listed on NASDAQ.
Ownership
in Moxian BVI
The
Company common stock registered in your name or which you beneficially own through your broker will be converted into the right to receive
an equal number of Moxian BVI ordinary shares and such shares will be registered in your name (or your broker’s name, as applicable)
in Moxian BVI’s register of members upon completion of the merger, without any further action on your part. Upon completion of
the merger, only registered shareholders reflected in Moxian BVI’s register of members will have and be entitled to exercise any
voting and other rights with respect to and to receive any dividend and other distributions upon Moxian BVI ordinary shares registered
in their respective names. Any attempted transfer of the Company stock prior to the merger that is not properly documented and reflected
in the stock records maintained by the Company’s transfer agent as of immediately prior to the Effective Time will not be reflected
in Moxian BVI’s register of members upon completion of the merger. Registered holders of Moxian BVI’s ordinary shares seeking
to transfer Moxian BVI ordinary shares following the merger will be required to provide customary transfer documents required by Moxian
BVI’s transfer agent to complete the transfer.
If
you hold the Company’s common stock in uncertificated book-entry form (for example, if you hold your shares through a broker),
at the Effective Time, the Company common stock registered in your name or which you beneficially own through your broker will be converted
into the right to receive an equal number of Moxian BVI ordinary shares and such shares will be registered in your name (or your broker’s
name, as applicable) in book-entry form without any action on your part.
If
you hold the Company’s common stock in certificated form, you may exchange your stock certificates for new Moxian BVI share certificates
promptly following the merger. We will request that all the Company stock certificates be returned to Moxian BVI’s transfer agent
following the merger. Soon after the closing of the merger, you will be sent a letter of transmittal from our exchange agent. It is expected
that, prior to the Effective Time, Securities Transfer Corporation will be appointed as our exchange agent for the merger. The letter
of transmittal will contain instructions explaining the procedure for surrendering your stock certificates for new Moxian BVI share certificates.
YOU SHOULD NOT RETURN STOCK CERTIFICATES WITH THE ENCLOSED PROXY CARD.
The
Company’s current transfer agent is Securities Transfer Corporation, which will continue to serve as the transfer agent for Moxian
BVI ordinary shares after the Effective Time.
Stock
Exchange Listing
The
Company’s common stock is currently listed on NASDAQ under the symbol “MOXC.” There is currently no established public
trading market for Moxian BVI’s ordinary shares. However, it is a condition to the completion of the merger that the shares of
Moxian BVI will be authorized for listing on NASDAQ, subject to official notice of issuance and satisfaction of other standard conditions.
As such, we expect that as of the Effective Time, Moxian BVI’s ordinary shares will be authorized for listing on NASDAQ, and we
expect such shares will be traded on the exchange under the symbol “MOXC.”
It
is anticipated that Moxian BVI will qualify as a foreign private issuer in the U.S. following the merger. As a foreign private issuer,
Moxian BVI will be permitted to follow corporate governance practices in accordance with British Virgin Islands laws in lieu of certain
NASDAQ corporate governance standards. However, we do not intend to initially rely on any NASDAQ exemptions or accommodations for foreign
private issuers following the merger.
Accounting
Treatment of the Merger
The
merger will be accounted for as a legal reorganization with no change in ultimate ownership interest immediately before and after the
transaction. Accordingly, all assets and liabilities will be recorded at historical cost as an exchange between entities under common
control. Please see the section entitled “Summary—Summary Pro Forma Financial Information.”
Taxation
The
following discussion of the material British Virgin Islands, People’s Republic of China and United States federal income tax consequences
is based upon laws and relevant interpretations thereof effective as of the date of this Proxy Statement, all of which are subject to
change, possibly with retroactive effect. This discussion does not deal with all possible tax consequences relating to the merger or
otherwise, such as the tax consequences under state and local and tax laws.
British
Virgin Islands Taxation
The
British Virgin Islands Government (or any other taxing authority in the British Virgin Islands) currently does not levy taxes on individuals
or corporations based upon profits, income, gains or appreciation, and there is no taxation in the British Virgin Islands in the nature
of inheritance tax or estate duty. There are no other taxes likely to be material to Moxian BVI levied by the Government of the British
Virgin Islands except for stamp duty which may be applicable on instruments executed in, or brought within the jurisdiction of the British
Virgin Islands. No stamp duties or other similar taxes or charges are payable under the laws of the British Virgin Islands in respect
of the execution or delivery of any of the documents relating the proposed merger or the performance or enforcement of any of them, unless
they are executed in or thereafter brought within the jurisdiction of the British Virgin Islands for enforcement purposes or otherwise.
We do not intend that any documents relating the proposed merger be executed in or brought within the jurisdiction of the British Virgin
Islands. There are no exchange control regulations or currency restrictions in the British Virgin Islands.
People’s
Republic of China Taxation
Under
the CIT Law and its implementation rules, both effective on January 1, 2008, all domestic and foreign investment companies will be subject
to a uniform enterprise income tax at the rate of 25% and dividends from PRC enterprises to their foreign shareholders will be subject
to a withholding tax at a rate of 10% if the foreign investors are considered as non-resident enterprises without any establishment or
place within the PRC or if the dividends payable have no connection with the establishment or place of the foreign investors within the
PRC, unless any such foreign investor’s jurisdiction of incorporation has a tax treaty with the PRC that provides for a lower withholding
tax rate. In accordance with Caishui (2008) No. 1 issued by the Ministry of Finance, or MOF, and SAT on February 22, 2008, the accumulative
undistributed profits of foreign investment companies generated before January 1, 2008, and distributed to foreign investors after year
2008, shall be exempt from withholding tax.
The
CIT Law has introduced the concept of “resident enterprises” and corresponding tax liability on resident enterprises’
worldwide income, whilst “non-resident enterprises” without any place or establishment in the PRC are required to pay 10%
income tax on their passive incomes from sources within China only. A resident enterprise refers to an enterprise that (i) was established/incorporated
within the PRC or (ii) was established/incorporated under the laws of a foreign jurisdiction but has its “de facto management body”
in the PRC. A non-resident enterprise refers to an enterprise which was established/incorporated under the laws of a foreign jurisdiction
and does not have its “de facto management body” in the PRC, but has an establishment or place in the PRC, or has China-sourced
income even though it does not have any establishment or place in the PRC.
Under
the implementation rules of the CIT Law, “de facto management body” is defined as an organization that has material and overall
management and control over the business, personnel, accounts and properties of an enterprise. In April 2009, the SAT issued a Notice
on Issues Relating to Determination of PRC-Controlled Offshore Enterprises as PRC Resident Enterprises Based on “De Facto Management
Body” Test, or SAT Circular No. 82, under which, an offshore enterprise controlled by a PRC enterprise or a PRC enterprise group
will be characterized as a “resident enterprise” due to the fact that its “de facto management body” is located
within the PRC, if all of the following conditions are met at the same time: (i) the senior management personnel responsible for its
daily operations and the place where the senior management departments discharge their responsibilities are located primarily in the
PRC; (ii) its finance and human resources related decisions are made by or are subject to the approval of institutions or personnel located
in the PRC; (iii) its major assets, books and records, company seals and minutes of its board of directors and shareholder meetings are
located or kept in the PRC; and (iv) senior management personnel or 50% or more of the members of its board of directors with voting
power of the enterprise reside in the PRC. SAT Circular No. 82 further specifies that the principle of “substance over form”
shall be adopted in determining whether the “de facto management body” is located within China.
We
currently are not treated as a PRC resident enterprise by the Chinese tax authority and as a result, we have not withheld PRC income
taxes from our foreign investors and as a non-resident enterprise, we are subject to PRC withholding tax if we receive dividends directly
from our PRC subsidiaries paid by them using funds out of their profits generated on and after January 1, 2008.
Nevertheless,
a significant portion of our operations are currently based in the PRC and are likely to remain based in the PRC after the merger. Moreover,
a significant portion of our management team, who are in charge of finance and human resources related decisions, will perform their
duties mainly in the PRC, and over 50% of our board members habitually reside in the PRC. Our main properties, accounting books and records,
company seals and minutes of board meetings are maintained in China.
However,
the rules regarding the determination of the “de facto management body” are relatively new and whether such rules may apply
to us is unclear. Due to lack of further written clarification by the SAT, there is still a uncertainty around the interpretation of
each of the four conditions as specified in SAT Circular No. 82 and the principle of “substance over form” and the implementation
of SAT Circular No. 82 by Chinese tax authorities in practice. It also remains unclear what percentage of shares of an offshore enterprise
must be held by a PRC entity or group in order for the offshore enterprise to be deemed as an offshore enterprise controlled by a PRC
enterprise or a PRC enterprise group, and whether shares held by PRC resident individuals are counted pursuant to SAT Circular No. 82.
Due
to the lack of clear guidance on the determination of our tax residency under the CIT Law, it remains unclear whether the PRC tax authorities
will treat us as a PRC resident enterprise either before or after the merger or what effect, if any, the merger will have on the determination.
As a result, we cannot express an opinion as to the likelihood that we will be subject to the tax applicable to resident enterprises
or non-resident enterprises under the CIT Law. If Moxian BVI is treated as a PRC resident enterprise, it will be subject to PRC tax on
its worldwide income at the 25% uniform tax rate, but the dividends distributed from its subsidiaries that are or deemed to be PRC resident
enterprises should be tax-exempt income. In addition, if Moxian BVI is considered a PRC resident enterprise, the dividends paid by it
to the non-PRC shareholders may be regarded as income from sources within the PRC pursuant to SAT Circular No. 82, and therefore the
non-PRC institutional shareholders may be subject to a 10% withholding tax, and the non-PRC individual shareholders may be subject to
a 20% withholding tax unless they are able to claim a lower tax rate pursuant to applicable tax treaties.
Furthermore,
if Moxian BVI is treated as a PRC resident enterprise, there is a possibility that the capital gains realized by its non- PRC shareholders
from the transfer of their shares may be regarded as income from sources within the PRC for PRC tax purposes. If such capital gains are
taxed in China, the applicable income tax rate would be 10% for non-PRC institutional shareholders, and 20% for non- PRC individual shareholders.
If the non-PRC shareholders are US residents that are eligible for PRC-US Tax Treaty benefits, whether capital gains should be taxed
in China is unclear.
Pursuant
to Paragraph 5 of Article 12 of the PRC-US Tax Treaty, gains from the alienation of shares of a company which is a PRC resident other
than those mentioned in paragraph 4 representing a participation of 25 per cent may be taxed in China. Paragraph 6 of Article 12 of the
PRC-US Tax Treaty further specifies that “[G]ains derived by a resident of a Contracting State from the alienation of any property
other than that referred to in paragraphs 1 through 5 and arising in the other Contracting State may be taxed in that other Contracting
State.” By virtue of this provision, the capital gains realized by the US residents may be taxed in the PRC if the capital gains
are considered as “arising in” the PRC. Under the CIT Law and its implementing rules, the capital gains from transfer of
shares may be considered as “arising in” the PRC if the enterprise whose shares are transferred is “located in”
China. If Moxian BVI is considered a PRC resident enterprise, and if the Chinese tax authorities take the position that a PRC resident
enterprise is deemed to be located in China, the capital gains realized by the US residents from transfer of their shares may be taxed
in the PRC depending on how the PRC-US Tax Treaty is interpreted and implemented by the Chinese tax authorities.
Material
United States Federal Income Tax Consequences Relating to the Merger and the Ownership and Disposition of Moxian BVI Ordinary Shares
The
following is a summary of material U.S. federal income tax consequences of the merger and of the ownership and disposition of Moxian
BVI ordinary shares after the merger, but does not purport to be a complete analysis of all the potential tax considerations relating
thereto. To the extent the discussion relates to matters of U.S. federal income tax law, and subject to the qualifications herein, it
represents the opinion of Hunter Taubman Fischer and Li LLC, our United States counsel. This summary is based upon the provisions of
the Code, Treasury regulations promulgated thereunder, administrative rulings and judicial decisions, all as of the date hereof. These
authorities may be changed, possibly retroactively, so as to result in U.S. federal income or estate tax consequences different from
those set forth below. We have not sought any ruling from the IRS, with respect to the statements made and the conclusions reached in
the following summary, and there can be no assurance that the IRS will agree with such statements and conclusions.
This
discussion does not address all aspects of U.S. federal income taxation that may be relevant in light of particular circumstances, nor
does it address the U.S. federal income tax consequences to persons who are subject to special rules under U.S. federal income tax law,
including:
|
|
●
|
banks,
insurance companies or other financial institutions;
|
|
|
|
|
|
|
●
|
persons
subject to the alternative minimum tax;
|
|
|
|
|
|
|
●
|
tax-exempt
organizations;
|
|
|
|
|
|
|
●
|
controlled
foreign corporations, passive foreign investment companies and corporations that accumulate earnings to avoid United States federal
income tax;
|
|
|
|
|
|
|
●
|
dealers
in securities or currencies;
|
|
|
|
|
|
|
●
|
traders
in securities that elect to use a mark-to-market method of accounting for their securities holdings;
|
|
|
|
|
|
|
●
|
persons
that own, or are deemed to own, more than five percent of our capital stock (except to the extent specifically set forth below);
|
|
|
|
|
|
|
●
|
holders
who acquired our stock as compensation or pursuant to the exercise of a Convertible Securities
|
|
|
|
|
|
|
●
|
persons
who hold our common stock as a position in a hedging transaction, “straddle,” or other risk reduction transaction; or
|
|
|
|
|
|
|
●
|
persons
who do not hold our common stock as a capital asset (within the meaning of Section 1221 of the Code).
|
|
|
|
|
|
|
●
|
partnerships
or other entities taxable as partnerships for U.S. federal income tax purposes, or persons holding common stock through such entities,
|
all
of whom may be subject to tax rules that differ significantly from those discussed below.
In
addition, unless expressly provided below, this discussion does not address any foreign, state, or local laws or U.S. federal estate
and gift tax laws.
For
purposes of this discussion, a U.S. holder is (i) an individual who is a citizen or resident of the United States for U.S. federal income
tax purposes; (ii) a corporation, or other entity treated as a corporation for U.S. federal income tax purposes, created or organized
in or under the laws of the United States (or treated as such under applicable U.S. tax laws), any state thereof, or the District of
Columbia; (iii) an estate the income of which is subject to U.S. federal income tax regardless of its source; or (iv) a trust if (a)
a U.S. court is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority
to control all substantial decisions of the trust, or (b) it has a valid election in effect under applicable law and regulations to be
treated as a U.S. person for U.S. federal income tax purposes. A non-U.S. holder is a holder that is not a U.S. holder.
In
the case of a partnership or entity classified as a partnership for U.S. federal income tax purposes, the U.S. federal income tax treatment
of a partner generally will depend on the status of the partner and the activities of the partnership. Partners of partnerships should
consult their tax advisors regarding the U.S. federal income tax consequences to them of the merger or of the ownership and disposition
of Moxian BVI ordinary shares.
Tax
Consequences of the Merger to Moxian Nevada and Moxian BVI
Moxian
BVI Will Be Treated As a U.S. Corporation
Notwithstanding
IRC Section 7701(a)(4), pursuant to Section 7874 of the Code, Moxian BVI will be treated as a U.S. corporation for all purposes under
the Code because (i) after the merger, Moxian BVI will not have substantial business activities in the British Virgin Islands and (ii)
the former holders of the Company common stock will hold, by reason of owning shares of the Company common stock, at least 80% or more
of the Moxian BVI ordinary shares. Because Moxian BVI will be treated as a U.S. corporation for all purposes under the Code, Moxian BVI
will not be treated as a “passive foreign investment company,” as such rules apply only to non-U.S. corporations for U.S.
federal income tax purposes.
Taxation
of the Company and Moxian BVI
We
expect that neither the Company nor Moxian BVI will incur U.S. income tax as a result of completion of the merger.
Tax
Consequences of the Merger to U.S. Holders and Reporting Requirements
U.S.
holders will not recognize gain or loss for U.S. federal income tax purposes upon receipt of Moxian BVI ordinary shares in exchange for
the Company common stock. The aggregate tax basis in the ordinary shares of Moxian BVI received in the merger will equal each such U.S.
holder’s aggregate tax basis in the Company common stock surrendered. A U.S. holder’s holding period for the ordinary shares
of Moxian BVI that are received in the merger generally will include such U.S. holder’s holding period for the common stock of
the Company surrendered.
U.S.
holders who owned at least 5% of the Company’s outstanding stock or the Company common stock with a basis of $1,000,000 or more
for U.S. federal income tax purposes who receive Moxian BVI ordinary shares as a result of the merger will be required to file with such
U.S. holders’ U.S. federal income tax returns for the year in which the merger takes place a statement setting forth certain facts
relating to the merger. Such statements must include the U.S. holders’ tax basis in, and fair market value of, the Company common
stock surrendered in the merger.
U.S.
holders should note that the state income tax consequences of the merger depend on the tax laws of such state. It is possible that the
merger may be taxable under the tax laws of some states, including, e.g., California. U.S. holders are urged to consult their own tax
advisors as to specific tax consequences to them of the merger in light of their particular circumstances, including the applicability
and effect of any state, local, or foreign tax laws and of changes in applicable tax laws.
Tax
Consequences of the Ownership and Disposition of Moxian BVI Ordinary Shares to U.S. Holders
Distributions
Moxian
BVI does not currently anticipate paying distributions on its ordinary shares. In the event that distributions are paid, however, the
gross amount of such distributions will be included in the gross income of the U.S. holder as dividend income on the date of receipt
to the extent that the distribution is paid out of current or accumulated earnings and profits, as determined under U.S. federal income
tax principles. Such dividends will be eligible for the dividends-received deduction allowed to corporations in respect of dividends
received from other U.S. corporations. Dividends received by non-corporate U.S. holders, including individuals, may be subject to reduced
rates of taxation under current law. A U.S. holder may be eligible to claim a foreign tax credit with respect to any PRC withholding
tax imposed on dividends paid by us. However, the foreign tax credit rules are complex, and their application in connection with Section
7874 of the Code in the presence of the Agreement Between the Government of the United States of America and the Government of the People’s
Republic of China for the Avoidance of Double Taxation and the Prevention of Tax Evasion with Respect to Taxes on Income, or the U.S.-PRC
Tax Treaty, are not entirely clear at this time. U.S. holders should consult their own tax advisors with respect to any benefits they
may be entitled to under the foreign tax credit rules and the U.S.-PRC Tax Treaty.
To
the extent that dividends paid on Moxian BVI ordinary shares exceed current and accumulated earnings and profits, the distributions will
be treated first as a tax-free return of tax basis on the Moxian BVI ordinary shares, and to the extent that the amount of the distribution
exceeds tax basis, the excess will be treated as capital gain.
Sale
or Other Disposition
U.S.
holders of Moxian BVI ordinary shares will recognize taxable gain or loss on any sale, exchange, or other taxable disposition of ordinary
shares equal to the difference between the amount realized for the Moxian BVI ordinary shares and the U.S. holder’s tax basis in
the ordinary shares. This gain or loss generally will be capital gain or loss. Non-corporate U.S. holders, including individuals, will
be eligible for reduced tax rates if the Moxian BVI ordinary shares have been held for more than one year. A U.S. holder’s holding
period for Moxian BVI ordinary shares should include such U.S. holder’s holding period for the ordinary shares of the Company surrendered
in the merger. The deductibility of capital losses is subject to limitations. A U.S. holder may be eligible to claim a foreign tax credit
with respect to any PRC withholding tax imposed on gain from the sale or other disposition of Moxian BVI ordinary shares. However, the
foreign tax credit rules are complex, and their application in connection with Section 7874 of the Code in the presence of the U.S.-PRC
Tax Treaty are not entirely clear at this time. U.S. holders should consult their own tax advisors with respect to any benefits they
may be entitled to under the foreign tax credit rules and the U.S.-PRC Tax Treaty.
Recent
Legislation
Recent
legislation requires certain U.S. holders who are individuals, trusts or estates to pay a 3.8% tax on, among other things, dividends
on and capital gains from the sale or other disposition of shares of stock for taxable years beginning after December 31, 2012. U.S.
holders should consult their own advisors regarding the effect, if any, of this legislation on their ownership and disposition of Moxian
BVI ordinary shares.
Consequences
if the Merger Does Not Qualify as a Reorganization
If
contrary to the opinion described above, the merger fails to qualify as a reorganization, subject to the PFIC rules discussed below,
a U.S. holder that exchanges its Moxian Nevada shares for the merger consideration will recognize gain or loss equal to the difference
between (i) the sum of (a) the fair market value of the Moxian BVI shares received, (b) the amount of cash consideration received pursuant
to the merger, and (c) any cash received in lieu of fractional Moxian BVI shares, and (ii) the U.S. holder’s adjusted tax basis
in the Moxian Nevada shares exchanged. A U.S. holder’s aggregate tax basis in the Moxian BVI shares received will be the fair market
value of those shares on the date the U.S. holder receives them. The U.S. holder’s holding period for the Moxian BVI shares received
pursuant to the merger will begin on the day after the date the U.S. holder receives such Moxian BVI.
Such
gain or loss will be a capital gain or loss and will be a long-term capital gain or loss if the U.S. holder’s holding period for
the Moxian Nevada shares exceeds one year at the time of the merger. Long-term capital gains of non-corporate U.S. holders, including
individuals, currently are subject to reduced rates of U.S. federal income taxation. Any gain recognized by a U.S. holder will be treated
as income from sources within the United States for U.S. foreign tax credit limitation purposes. The deductibility of capital losses
is subject to limitations under the Code.
PFIC
Considerations
A
non-U.S. corporation will be classified as a PFIC for any taxable year if at least 75 percent of its gross income consists of passive
income (such as dividends, interest, rents, royalties or gains on the disposition of certain minority interests), or at least 50 percent
of the average value of its assets (determined on the basis of a quarterly average) is attributable to assets that produce, or are held
for the production of, passive income (including for this purpose its pro rata share of the gross income and assets of any corporation
in which it is considered to own at least 25 percent of the shares, by value).
Moxian
Nevada was a Domestic U.S. Corporation (and/or for any other reason that might be excluded from being characterized as a PFIC) and therefore
was not a PFIC for its 2020 taxable year and does not expect to be a PFIC in its current year. If (a) Moxian Nevada has been a PFIC for
any taxable year during the holding period of a U.S. holder (and a U.S. holder of Moxian Nevada shares has not made certain elections
with respect to its Moxian Nevada shares), and (b) Moxian BVI is not a PFIC in the taxable year of the merger (as expected), such U.S.
holder would likely recognize gain (but not loss if the merger qualifies as a reorganization) upon the exchange of Moxian Nevada shares
for Moxian BVI shares pursuant to the merger. The gain (or loss) would be computed as described above under “— Consequences
if the Merger Does Not Qualify as a Reorganization.” Any such gain recognized by such U.S. holder on the exchange of Moxian
Nevada shares for Moxian BVI shares would be allocated ratably over the U.S. holder’s holding period for the Moxian Nevada shares.
Such amounts allocated for the current taxable year and any taxable year prior to the first taxable year in which Moxian Nevada was a
PFIC would be treated as ordinary income, and not as capital gain, in the U.S. holder’s taxable year, and such amounts allocated
to each other taxable year beginning with the year that Moxian Nevada became a PFIC would be taxed at the highest tax rate in effect
for each year to which the gain was allocated, together with a special interest charge on the tax attributable to each such year.
Moxian
BVI believes that it was not a PFIC for its 2020 taxable year and, based on the nature of its business, and the current and anticipated
composition of its income and assets (including the Moxian Nevada assets acquired in the merger), Moxian BVI anticipates that it will
not be treated as a PFIC for U.S. federal income tax purposes for the current taxable year or the foreseeable future, namely in connection
with application of IRC Section 7874. However, this is a factual determination made annually after the close of each taxable year, based
on Moxian BVI’s composition of income and assets and shareholders. Accordingly, in an abundance of caution, If Moxian BVI were
characterized as a PFIC for any taxable year, U.S. holders of Moxian BVI shares would suffer adverse tax consequences. These consequences
may include having gains realized on the disposition of offered shares treated as ordinary income rather than capital gains, and being
subject to punitive interest charges on certain dividends and on the proceeds of the sale or other disposition of the Moxian BVI shares.
U.S. holders would also be subject to annual information reporting requirements. In addition, if Moxian BVI were a PFIC in a taxable
year in which Moxian BVI paid a dividend or the prior taxable year, such dividends would not be eligible to be taxed at the reduced rates
applicable to qualified dividend income (as discussed above).
U.S.
holders should consult their own tax advisors regarding the application of the PFIC rules to the exchange of Moxian Nevada shares for
merger consideration pursuant to the merger and, after the merger, their ownership of the Moxian BVI shares.
Tax
Consequences of the Merger to Non-U.S. Holders
The
receipt of Moxian BVI ordinary shares in exchange for the Company common stock will not be a taxable transaction to non-U.S. holders
for U.S. federal income tax purposes.
Tax
Consequences of the Ownership and Disposition of Moxian BVI Ordinary Shares to Non-U.S. Holders
Distributions
Moxian
BVI does not currently anticipate paying distributions on its ordinary shares. In the event that distributions are paid, however, such
distributions will constitute dividends for U.S. tax purposes to the extent paid out of current or accumulated earnings and profits,
as determined under U.S. federal income tax principles. To the extent that dividends paid on Moxian BVI ordinary shares exceed current
and accumulated earnings and profits, the distributions will be treated first as a tax-free return of tax basis on the Moxian BVI ordinary
shares, and to the extent that the amount of the distribution exceeds tax basis, the excess will be treated as capital gain.
Any
dividends paid to a non-U.S. holder by Moxian BVI are treated as income derived from sources within the United States and generally will
be subject to U.S. federal income tax withholding at a rate of 30% of the gross amount of the dividends, or at a lower rate provided
by an applicable income tax treaty if non-U.S. holders provide proper certification of eligibility for the lower rate (usually on IRS
Form W-8BEN). Dividends received by a non-U.S. holder that are effectively connected with such holder’s conduct of a U.S. trade
or business (and, if an income tax treaty applies, such dividend is attributable to a permanent establishment maintained by the non-U.S.
holder in the U.S.) are exempt from such withholding tax, provided that applicable certification requirements are satisfied. In such
case, however, non-U.S. holders will be subject to U.S. federal income tax on such dividends, net of certain deductions, at the rates
applicable to U.S. persons. In addition, corporate non-U.S. holders may be subject to an additional branch profits tax equal to 30% or
such lower rate as may be specified by an applicable tax treaty on dividends received that are effectively connected with the conduct
of a trade or business in the United States.
If
non-U.S. holders are eligible for a reduced rate of U.S. withholding tax pursuant to an applicable income tax treaty, such non-U.S. holders
may obtain a refund of any excess amounts withheld by filing an appropriate claim for refund with the IRS.
Sale
or Other Disposition
Any
gain realized upon the sale or other disposition of Moxian BVI ordinary shares generally will not be subject to U.S. federal income tax
unless:
|
|
●
|
the
gain is effectively connected with the conduct of a trade or business in the United States, and, if an income tax treaty applies,
is attributable to a permanent establishment maintained by such holder in the U.S.;
|
|
|
|
|
|
|
●
|
the
holder is an individual who is present in the United States for 183 days or more in the taxable year of the disposition, and certain
other conditions are met; or
|
|
|
|
|
|
|
●
|
Moxian
BVI is or has been a “U.S. real property holding corporation,” or USRPHC, for U.S. federal income tax purposes at any
time during the shorter of the five-year period ending on the date of disposition or the period during which the holder has held
Moxian BVI ordinary shares.
|
Non-U.S.
holders whose gain is described in the first bullet point above will be subject to U.S. federal income tax on the gain derived from the
sale, net of certain deductions, at the rates applicable to U.S. persons, within the meaning of the Code. Corporate non-U.S. holders
whose gain is described in the first bullet point above may also be subject to the branch profits tax described above at a 30% rate or
lower rate provided by an applicable income tax treaty. Individual non-U.S. holders described in the second bullet point above will be
subject to a flat 30% U.S. federal income tax rate on the gain derived from the sale, which may be offset by U.S.-source capital losses,
even though such non-U.S. holders are not considered to be residents of the United States.
A
corporation will be a USRPHC if the fair market value of its U.S. real property interests equals or exceeds 50 percent of the aggregate
of its real property interests (U.S. and non-U.S.) and its assets used or held for use in a trade or business. Because we do not currently
own significant U.S. real property, we believe, but our special United States counsel has not independently verified, that we are not
currently and will not become a USRPHC. However, because the determination of whether we are a USRPHC depends on the fair market value
of our U.S. real property relative to the fair market value of our other business assets, there can be no assurance that we will not
become a USRPHC in the future. Even if we become a USRPHC, however, as long as our common stock is regularly traded on an established
securities market, such common stock will be treated as U.S. real property interests only if you actually or constructively hold more
than five percent of such regularly traded common stock at any time during the applicable period that is specified in the Internal Revenue
Code.
Backup
Withholding and Information Reporting
Payments
of dividends or of proceeds on the disposition of stock made to a holder of Moxian BVI ordinary shares may be subject to information
reporting and backup withholding at a current rate of 28% unless such holder provides a correct taxpayer identification number on IRS
Form W-9 (or other appropriate withholding form) or establishes an exemption from backup withholding, for example by properly certifying
your non-U.S. status on a Form W-8BEN or another appropriate version of IRS Form W-8. Payments of dividends to holders must generally
be reported annually to the IRS, along with the name and address of the holder and the amount of tax withheld, if any. A similar report
is sent to the holder. Pursuant to applicable income tax treaties or other agreements, the IRS may make these reports available to tax
authorities in the holder’s country of residence.
Backup
withholding is not an additional tax; rather, the U.S. income tax liability of persons subject to backup withholding will be reduced
by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund or credit may generally be obtained from the
IRS, provided that the required information is furnished to the IRS in a timely manner.
Recently
Enacted Legislation Affecting Taxation of Our Common Stock Held by or Through Foreign Entities
Recently
enacted legislation generally will impose a U.S. federal withholding tax of 30% on dividends and the gross proceeds of a disposition
of our common stock paid after December 31, 2012 to a “foreign financial institution” (as specially defined under these rules)
unless such institution enters into an agreement with the U.S. government to withhold on certain payments and to collect and provide
to the U.S. tax authorities substantial information regarding U.S. account holders of such institution (which includes certain equity
and debt holders of such institution, as well as certain account holders that are foreign entities with U.S. owners). The legislation
also will generally impose a U.S. federal withholding tax of 30% on dividends and the gross proceeds of a disposition of our common stock
paid after December 31, 2012 to a non-financial foreign entity unless such entity provides the withholding agent with a certification
identifying the direct and indirect U.S. owners of the entity. Under certain circumstances, a non-U.S. holder might be eligible for refunds
or credits of such taxes. Prospective investors are encouraged to consult with their own tax advisors regarding the possible implications
of this legislation on their investment in our common stock.
OTHER
MATTERS
Our
Board knows of no other matter to be presented at the Meeting. If any additional matter should properly come before the Meeting, it is
the intention of the persons named in the enclosed proxy to vote such proxy in accordance with their judgment on any such matters.
OTHER
INFORMATION
Compensation
Committee Interlocks and Insider Participation
None
of the members of the Board of Directors who served on the Compensation Committee during the fiscal year ended September 30, 2020 were
officers or employees of the Company or any of its subsidiaries or had any relationship with the Company requiring disclosure under SEC
regulations.
Availability
of Annual Report to Shareholders
Rules
promulgated by the SEC require us to provide an Annual Report to Shareholders who receive this Proxy Statement. We will also provide
copies of the Annual Report to brokers, dealers, banks, voting trustees and their nominees for the benefit of their beneficial owners
of record. Additional copies of the Annual Report on Form 10-K for the fiscal year ended September 30, 2020 (without exhibits or documents
incorporated by reference), are available without charge to shareholders upon written request to Secretary, Moxian, Inc., Unit 911, Tower
2, Silvercord, 30 Canton Road, Tsimshatsui, Hong Kong SAR, China, by calling +852 2961 4888, or via the Internet at www.moxianglobal.com.
Delivery
of Proxy Materials to Households
Only
one copy of this Proxy Statement and one copy of our Annual Report are being delivered to multiple registered stockholders who share
an address unless we have received contrary instructions from one or more of the stockholders. A separate form of proxy and a separate
notice of the Meeting are being included for each account at the shared address. Registered stockholders who share an address and would
like to receive a separate copy of our Annual Report and/or a separate copy of this Proxy Statement, or have questions regarding the
householding process, may contact the Company’s transfer agent: Securities Transfer Corporation, by calling (469) 633-0101, or
by forwarding a written request addressed to Securities Transfer Corporation, 2901 N. Dallas Parkway, Suite 380, Plano, Texas 75093.
Promptly upon request, a separate copy of our Annual Report on Form 10-K and/or a separate copy of this Proxy Statement will be sent.
By contacting Securities Transfer Corporation , registered stockholders sharing an address can also (i) notify the Company that the registered
stockholders wish to receive separate annual reports to stockholders, proxy statements and/or Notices of Internet Availability of Proxy
Materials, as applicable, in the future or (ii) request delivery of a single copy of annual reports to stockholders and proxy statements
in the future if registered stockholders at the shared address are receiving multiple copies.
Deadline
for Submission of Stockholder Proposals
To
be considered for inclusion in next year’s Proxy Statement or considered at next year’s annual meeting but not included in
the Proxy Statement, stockholder proposals must be submitted in writing no later than [ ], 2022. All written proposals should be submitted
to: Secretary, Moxian, Inc., Unit 911, Tower 2, Silvercord, 30 Canton Road, Tsimshatsui, Hong Kong SAR, China.
Other
Proposed Actions
If
any other items or matters properly come before the meeting, the proxies received will be voted on those items or matters in accordance
with the discretion of the proxy holders.
Proxy
Solicitation by Board; Expenses of Solicitation
Our
Board of Directors has sent you this Proxy Statement. Our directors, officers and associates may solicit proxies by telephone or in person.
We will also reimburse the expenses of brokers, nominees and fiduciaries that send proxies and proxy materials to our shareholders.
Many
brokers, brokerage firms, broker/dealers, banks and other holders of record have also instituted “householding” (delivery
of one copy of materials to multiple stockholders who share an address). If your family has one or more “street name” accounts
under which you beneficially own shares of our common stock, you may have received householding information from your broker, brokerage
firm, broker/dealer, bank or other nominee in the past. Please contact the holder of record directly if you have questions, require additional
copies of this Proxy Statement or our Annual Report or wish to revoke your decision to household and thereby receive multiple copies.
You should also contact the holder of record if you wish to institute householding.
Legal
Matters
The
legality of the Moxian BVI Ordinary Shares being registered pursuant to this registration statement will be passed upon for Moxian BVI
by Campbells, acting in its capacity as legal advisor to Moxian BVI . Certain U.S. tax matters will be passed upon by Kaufman & Canoles,
P.C.
Where
You Can Find Additional Information
This
proxy statement incorporates important business and financial information about the Company from documents filed with the U.S. Securities
and Exchange Commission (the “SEC”) that have been included herein and delivered herewith as annexes. In addition to the
documents included herein, the Company files reports (including annual, quarterly and current reports which may contain audited financial
statements), proxy statements and other information with the SEC.
You
may also obtain the Company’s SEC reports on the SEC’s website at www.sec.gov. Company’s filings with the SEC are available
to the public over the internet at the SEC’s website at www.sec.gov, or at the SEC’s Public Reference Room at 100 F Street,
NE, Washington, D.C. 20549. Please call (800) 732-0330 for further information on the public reference facilities.
This
proxy statement includes as annexes documents that the Company has previously filed with the SEC under Section 13(a), 13(c), 31(a), or
15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as set forth below. Any statement contained
in such a document shall be deemed to be modified or superseded for purposes of this proxy statement to the extent that a statement contained
in this proxy statement or in an annex hereto consisting of a document filed with the SEC subsequently to such document modifies or replaces
such statement. The information included in the annexes hereto is incorporated into this proxy statement except to the extent so modified
or superseded.
Set
forth below is a list of the documents the Company previously filed with the SEC under the Exchange Act that are included as annexes
to this proxy statement.
|
|
●
|
Current
Reports on Form 8-K filed with the SEC on March 3, 2021, April 6, 2021, April 7, 2021, April 23, 2021, and April 30, 2021;
|
|
|
|
|
|
|
●
|
Quarterly
Reports on Form 10-Q for the quarters ended December 31, 2020 and March 31, 2021 filed with the SEC on February 16, 2021 and May
17, 2021, respectively;
|
|
|
|
|
|
|
●
|
Annual
Report on Form 10-K for the year ended September 30, 2020, filed with the SEC on January 14, 2021;
|
Stockholders
who have questions in regard to any aspect of the matters discussed in this Proxy Statement should contact Hao Qinghu, our Chief Executive
Officer, or Tan Wanhong, our Chief Chief Financial Officer, at Unit 911, Tower 2, Silvercord, 30 Canton Road, Tsimshatsui, Hong Kong
SAR, China, or by telephone on ++852 2961 4888.
APPENDIX
A
Agreement
and Plan of Merger
This AGREEMENT AND
PLAN OF MERGER (hereinafter called this “Agreement”), dated as of May 28, 2021, is entered into by and between
MOXIAN, INC., a Nevada corporation (“Moxian Nevada”) and Moxian (BVI) Inc, a business company limited by shares
incorporated under the laws of the British Virgin Islands (“BVI”) and a wholly owned subsidiary of Moxian Nevada
(“Moxian BVI”). Moxian Nevada and Moxian BVI are sometimes together referred to herein as the “Constituent
Entities.”
RECITALS
WHEREAS, Moxian BVI
was formed in the BVI on May 18, 2021, as a wholly-owned subsidiary of Moxian Nevada; and
WHEREAS, the board
of directors of Moxian Nevada and the sole director of Moxian BVI deem it advisable and in the best interests of Moxian Nevada
and Moxian BVI, respectively, upon the terms and subject to the conditions herein stated, that Moxian Nevada be merged with and
into Moxian BVI and that Moxian BVI be the surviving company (the “Merger”).
NOW, THEREFORE, in
consideration of the premises and of the agreements of the parties hereto contained herein, the parties hereto agree in accordance
with the applicable provisions of the laws of the States of Nevada which permit such merger, as follows:
ARTICLE I
MERGER; EFFECTIVE TIME
1.1 The Merger.
Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time (as defined below), Moxian Nevada
shall be merged with and into Moxian BVI, whereupon the separate existence of Moxian Nevada shall cease and Moxian BVI shall continue
as the surviving entity.
1.2 Effective Time.
The Merger shall become effective on 4:30 p.m. ET, __, 2021 or such other time that the parties hereto shall have agreed upon
and designated in a certificate of ownership and merger (the “Articles of Merger”) to be filed with the Secretary
of State of the State of Nevada and the filing of Articles of Merger with the Secretary of State of the State of Nevada, being
not later than 90 days after the time and date that this Agreement is registered with the British Virgin Islands Registrar of
Companies (the “Effective Time”).
ARTICLE II
SURVIVING CORPORATION
2.1 Surviving Corporation.
The name of the Surviving Corporation shall be “Moxian (BVI) Inc”, a British Virgin Islands business company limited
by shares, the registered office of which is at Floor 4, Banco Popular Building, Tortola, British Virgin Islands (sometimes hereinafter
referred to as the “Surviving Corporation”).
ARTICLE III
TERMS AND CONDITIONS OF THE MERGER
3.1 Memorandum
of Association. The Memorandum of Association of Moxian BVI in effect at the Effective Time shall be the governing documents
and Memorandum of Association of the Surviving Corporation, and shall continue in full force and effect until amended and changed
in accordance with the provisions provided therein or the applicable provisions of BVI Business Companies Act, 2004, as amended
(the “BVI Companies Law”).
3.2 Articles of
Association. The Articles of Association of Moxian BVI in effect at the Effective Time shall be the bylaws and Articles of
Association of the Surviving Corporation, and shall continue in full force and effect until amended and changed in accordance
with the provisions provided therein or the applicable provisions of the BVI Companies Laws.
3.3 Directors.
At the Effective Time the directors of Moxian BVI immediately prior to the Merger shall continue to be the directors of the Surviving
Corporation, and all such directors shall hold office from the Effective Time until their respective successors have been duly
appointed in the manner provided in the memorandum and articles of association of Moxian BVI or in the BVI Companies Law, or until
their earlier death, resignation or removal. Consequently, the names and addresses of the directors of Moxian BVI, as the surviving
company are and shall be:
Room 911, 9/F Tower 2, Silvercord
30 Canton Road
Hong Kong SAR, China
|
|
(b)
|
Choong Khuat
Leok
|
|
|
|
Room 911, 9/F Tower 2, Silvercord
30 Canton Road
Hong Kong SAR, China
|
|
|
(c)
|
Wendy Wang Yingjie
Room 911, 9/F Tower 2, Silvercord
30 Canton Road
Hong Kong SAR, China
|
|
|
(d)
|
William Yap Guan Hong
Room 911, 9/F Tower 2, Silvercord
30 Canton Road
Hong Kong SAR, China
|
|
|
(e)
|
Zhao Yahui
Room 911, 9/F Tower 2, Silvercord
30 Canton Road
Hong Kong SAR, China
|
3.4 Officers.
At the Effective Time the officers of Moxian BVI immediately prior to the Merger shall continue to be the officers of the Surviving
Corporation, and all such officers shall hold office from the Effective Time until their respective successors have been duly
appointed in the manner provided in the memorandum and articles of association of Moxian BVI or in the BVI Companies Law, or until
their earlier death, resignation or removal.
3.5 Submission
to Stockholder/Shareholder Vote. This Agreement shall be submitted to a vote of the stockholders/shareholders (as the case
may be) of the Constituent Entities, respectively, as provided by applicable law, and shall take effect, and be deemed to be the
Plan of Merger of the Constituent Entities, upon the approval or adoption thereof by such stockholders/shareholders in accordance
with the requirements of the laws of the State of Nevada and British Virgin Islands, respectively.
3.6 Filing of the
Articles of Merger in the State of Nevada. As soon as practicable after the requisite stockholder approvals referenced in
Section 3.5 hereof, Moxian Nevada shall execute and deliver the Articles of Merger for filing and recording with the Secretary
of State of the State of Nevada in accordance with the Nevada Revised Statutes, as amended.
3.7 Registration
of the Plan of Merger in the British Virgin Islands. As soon as practicable after the requisite shareholder approvals referenced
in Section 3.5 hereof, and forthwith after the consummation of the transactions contemplated by this Agreement, Moxian BVI will
cause this Agreement as the Plan of Merger to be registered with the British Virgin Islands Registrar of Corporate Affairs in
accordance with the BVI Companies Law.
ARTICLE IV
EFFECT OF MERGER
4.1 Effect of Merger
on Constituent Entities. The Merger shall have the effect set forth in Section 174 of the BVI Companies Law. Without limiting
the generality of the foregoing, and subject thereto, at the Effective Time, Moxian Nevada shall merge with and into Moxian BVI,
with Moxian BVI being the Surviving Corporation, and the existence of Moxian Nevada shall cease except to the extent provided
by the laws of the State of Nevada. All the rights, privileges, immunities and franchises, of both a public and private nature,
of each of the Constituent Entities; and all property, real, personal and mixed, and all debts due on whatever account, including
subscriptions to shares, and all other choses in action, and all and every other interest of, or belonging to, or due to each
of the Constituent Entities, shall immediately vest in Moxian BVI, without further act or deed; and the title to all real estate,
or any interest therein, vested in either of the Constituent Entities shall not revert or be in any way impaired by reason of
the Merger. Moxian BVI shall thenceforth be responsible and liable for all of the liabilities and obligations of each of the Constituent
Entities and any existing claim, action or proceeding pending by or against either of the Constituent Entities may be prosecuted
to judgment as if the Merger had not occurred, or the Surviving Entity may be substituted in such claim, action or proceeding,
and neither the rights of creditors nor any liens upon the property of either of the Constituent Entities shall be impaired by
the Merger.
4.2 Effect of Merger
on Share Capital. At the Effective Time, as a result of the Merger and without any further action on the part of the Constituent
Entities or their stockholders/shareholders (as the case may be):
(a) each share of
the common stock of nominal or par value of US$0.001 each of Moxian Nevada issued and outstanding immediately prior thereto shall
be converted into one fully paid and nonassessable ordinary share of nominal or par value of US$0.001 each in the share of Moxian
BVI with substantially the same rights, powers and privileges set forth in the Memorandum and Articles of Association as the shares
of the common stock of Moxian Nevada so converted, and all shares of such common stock of Moxian Nevada shall be cancelled and
retired and shall cease to exist;
(b) all outstanding
and unexercised portions of each option, warrant and security exercisable or convertible by its terms into the common stock of
Moxian Nevada (including convertible promissory notes) if any, whether vested or unvested, which is outstanding immediately prior
to the Effective Time (collectively, the “Company Convertible Securities”) shall be assumed by Moxian BVI and
shall be deemed to constitute an option, warrant or convertible security, as the case may be, to acquire the same number of ordinary
shares of nominal or par value of US$0.001 each in Moxian BVI as the holder of such Company Convertible Securities would have
been entitled to receive had such holder exercised or converted such Company Convertible Securities in full immediately prior
to the Effective Time (not taking into account whether such Company Convertible Securities was in fact exercisable or convertible
at such time), at the same exercise price per share, and shall, to the extent permitted by law and otherwise reasonably practicable,
have the same term, exercisability, vesting schedule, status and all other material terms and conditions; and Moxian BVI shall
take all steps to ensure that a sufficient number of ordinary shares is reserved for the exercise of such Company Convertible
Securities; and
(c) immediately upon
the Effective Time, the single ordinary share of Moxian BVI issued and outstanding and registered in the name of Moxian Nevada
shall be surrendered by Moxian Nevada for no consideration upon which Moxian Nevada shall cease to be entitled to any rights in
respect of such share and shall be removed from the register of members of Moxian BVI with respect to such share and the surrendered
share shall be cancelled.
4.3 Certificates.
At and after the Effective Time, all of the outstanding certificates that immediately prior thereto represented shares of the
common stock of Moxian Nevada and options, warrants or other securities of Moxian Nevada, shall be deemed to represent the respective
ordinary shares of Moxian BVI and options, warrants or other securities of Moxian BVI, as the case may be, into which the shares
represented by such certificates have been converted as herein provided and shall be so registered on the books and records of
Moxian BVI or its transfer agent. The registered owner of any shares in Moxian BVI shall be entitled to exercise any voting and
other rights with respect to, and to receive any dividends and other distributions upon, the shares of the common stock of Moxian
Nevada and options, warrants or other securities of Moxian BVI, as the case may be, evidenced by such outstanding certificate,
as above provided.
ARTICLE V
CONDITIONS PRECEDENT
The
respective obligations of each party to effect the Merger are subject to the satisfaction or waiver of the following conditions:
5.1 Stockholder
Approval. This Agreement shall have been adopted and approved by the affirmative vote of holders of a majority of the issued
and outstanding shares of Moxian Nevada common stock entitled to vote thereon at the record date for such actions as set by the
board of directors of Moxian Nevada.
5.2 No Prohibition.
None of the parties hereto shall be subject to any decree, order or injunction of any court of competent jurisdiction, whether
in the U.S., the British Virgin Islands or any other country, that prohibits the consummation of the Merger.
5.3 Consents and
Authorizations. Other than the filing of the Articles of Merger provided for under Section 1.2, all material consents and
authorizations of, filings or registrations with, and notices to, any governmental or regulatory authority required of Moxian
Nevada, Moxian BVI or any of their respective subsidiaries to consummate the Merger and the other transactions contemplated hereby,
including, without limitation, any filings required under (i) applicable U.S. state securities and “Blue Sky” laws
and (ii) applicable British Virgin Islands securities and company laws, shall have been obtained or made.
5.4 NASDAQ Listing.
The Moxian BVI ordinary shares to be issued pursuant to the Merger shall have been authorized for listing on the NASDAQ Stock Market,
subject to official notice of issuance and satisfaction of other standard conditions.
5.5
Consents and Authorizations. Other than the filing of the Certificate of Merger provided for under Section 1.2, all material consents
and authorizations of, filings or registrations with, and notices to, any governmental or regulatory authority required of Moxian Nevada,
Moxian BVI or any of their respective subsidiaries to consummate the Merger and the other transactions contemplated hereby, including,
without limitation, any filings required under (i) applicable U.S. state securities and “Blue Sky” laws and (ii) applicable
British Virgin Islands securities laws, shall have been obtained or made.
5.6 Representations
and Warranties. The representations and warranties of the parties set forth herein shall be true and correct in all material
respects, and the covenants of the parties set forth herein (other than those to be performed after the Effective Time) shall
have been performed in all material respects.
ARTICLE VI
MISCELLANEOUS AND GENERAL
6.1 Further Assurances.
From time to time, as and when required by Moxian BVI or by its successors or assigns, there shall be executed and delivered on
behalf of Moxian Nevada such deeds, assignments and other instruments, and there shall be taken or caused to be taken by it all
such further action as shall be appropriate or advisable or necessary in order to vest, perfect or confirm, of record or otherwise,
in Moxian BVI, the title to and possession of all property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Moxian Nevada, and otherwise to carry out the purposes of this Agreement. The officers and directors of Moxian
BVI are fully authorized in the name of and on behalf of Moxian Nevada, or otherwise, to take any and all such actions and to
execute and deliver any and all such deeds and other instruments as may be necessary or appropriate to accomplish the foregoing.
Further, as soon as practicable after the Effective Time Moxian Nevada shall, and (to the extent that it is within its powers
to do so), deliver or procure that any other person shall deliver without delay to Moxian BVI at its registered office, all records,
correspondence, documents, files, memoranda and other papers relating to Moxian Nevada required to be kept in the British Virgin
Islands.
6.2 Termination.
Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and the Merger may be abandoned,
at any time prior to the Effective Time, whether before or after approval of this Agreement by the stockholders of Moxian Nevada,
if the board of directors of Moxian Nevada determines for any reason, in its sole judgment and discretion, that the consummation
of the Merger would be inadvisable or not in the best interests of Moxian Nevada and its stockholders. In the event of the termination
and abandonment of this Agreement, this Agreement shall become null and void and have no effect, without any liability on the
part of either Moxian Nevada or Moxian BVI, or any of their respective stockholders/shareholders, directors or officers.
6.3 Modification
or Amendment. Subject to the provisions of applicable law, at any time prior to the Effective Time, the board of directors
of the Constituent Entities may amend, modify or supplement this Agreement, notwithstanding approval of this Agreement by the
stockholders; provided, however, that an amendment made subsequent to the approval of this Agreement by the stockholders shall
not (a) alter or change the amount or kind of shares and/or rights to be received in exchange for or on conversion of all or any
of the shares or any class or series thereof of such corporation, (b) alter or change any provision of the Memorandum and Articles
of Association of Moxian BVI to be effected by the Merger, or (c) alter or change any of the terms or conditions of this Agreement
if such alteration or change would adversely affect the holders of any class or series of capital stock of any of the parties
hereto.
6.4 Tax-Free Reorganization.
The Merger is intended to be a tax-free plan or reorganization within the meaning of Section 368(a)(1)(F) of the Internal Revenue
Code of 1986, as amended.
6.5 GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEVADA WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
6.6 Entire Agreement.
This Agreement constitutes the entire agreement and supersedes all other prior agreements, understandings, representations and
warranties, both written and oral, among the parties, with respect to the subject matter hereof.
6.7 No Third Party
Beneficiaries. This Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies
hereunder.
6.8 Severability.
The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect
the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof
to any person or any circumstance, is determined by any court or other authority of competent jurisdiction to be invalid or unenforceable,
(a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable,
the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other
jurisdiction.
6.9 Headings.
The headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to
limit or otherwise affect any of the provisions hereof.
6.10 Counterparts.
In order to facilitate the filing and recording of this Agreement, it may be executed in any number of counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF,
this Agreement and Plan of Merger has been duly executed and delivered by the duly authorized officers of the parties hereto as
of the date first written above.
|
MOXIAN, INC. a Nevada
corporation
|
|
|
|
|
|
|
By:
|
/s/ Tan Wanhong
|
|
|
Name:
|
Tan Wanhong
|
|
|
Title:
|
Chief Financial Officer and Secretary
|
|
|
|
|
|
|
|
|
|
|
Moxian,
Inc. (BVI) a British Virgin Islands
Company
|
|
|
|
|
|
|
By:
|
/s/ Tan Wanhong
|
|
|
Name:
|
Tan Wanhong
|
|
|
Title:
|
Director
|
|
Annex
1
Form of BVI Plan of Merger and Articles of Merger
PLAN
OF MERGER
Between
Moxian,
Inc.
AND
Moxian
(BVI) Inc
THIS
PLAN OF MERGER (hereinafter the “Plan of Merger”) is made on [ ]
2021.
PARTIES
|
(1)
|
Moxian,
Inc., a company incorporated in Nevada under the Nevada Revised Statutes on October 12, 2010 (with company number E0505002010-6)
whose registered office is at 701 S. CARSON STREET, SUITE 200, Carson City, NV, 89701 (the “Merging Company”);
and
|
|
|
|
|
(2)
|
Moxian
(BVI) Inc, a company incorporated in the British Virgin Islands under the BVI Business Companies Act 2004, as amended (the “Act”)
18 May, 2021 (with company number 2063507) whose registered office is at Floor 4, Banco Popular Building, Road Town, Tortola, British
Virgin Islands (the “Surviving Company”).
|
(together
the “Parties” and each a “Party”)
BACKGROUND
|
(A)
|
The
Merging Company is a corporation, authorised to issue up to an aggregate of 150,000,000 shares of common stock, US$0.001 par value
per share, in good standing with the Secretary of State of the State of Nevada and validly existing under the laws of Nevada.
|
|
|
|
|
(B)
|
The
Surviving Company is a company limited by shares, authorised to issue up to 200,000,000 ordinary shares of US$0.001 par value each
share, in good standing at the Registry of Corporate Affairs in the British Virgin Islands and validly existing under the laws of
the British Virgin Islands.
|
|
|
|
|
(C)
|
The
Merging Company is the sole shareholder of the Surviving Company.
|
|
|
|
|
(D)
|
The
Parties want to merge and enter into this Plan of Merger, pursuant to the provisions of Part IX and, in particular, section 172 (Merger
with subsidiary) of the Act (the “Merger”).
|
|
|
|
|
(E)
|
The
directors of the Merging Company deem it desirable and in the best interest of the Parties and their shareholders (as the case may
be) that the Merging Company be merged into the Surviving Company.
|
|
|
|
|
(F)
|
The
sole director of the Surviving Company deem it desirable and in the best interest of the Parties and their shareholders (as the case
may be) that the Merging Company be merged into the Surviving Company.
|
|
|
|
|
(G)
|
The
articles of incorporation, as amended, and bylaws of the Merging Company were registered with the Secretary of State of the State
of Nevada in Nevada on 2 May, 2011 and 19 October, 2010, respectively.
|
|
|
|
|
(H)
|
The
memorandum and articles of association of the Surviving Company were registered with the Registrar of Companies in the British Virgin
Islands on [ ], 2021.
|
AGREED
TERMS
|
1
|
The
constituent companies to this Plan of Merger are the Surviving Company and the Merging Company.
|
|
|
|
|
2
|
The
Merging Company is Moxian, Inc..
|
|
|
|
|
3
|
The
Surviving Company is Moxian (BVI) Inc
|
|
|
|
|
4
|
After
the Merger, the name of the company will be Moxian (BVI) Inc
|
|
|
|
|
5
|
The
Merging Company is authorised to issue up to 150,000,000 shares of common stock, US$0.001 par value each.
|
|
6
|
The
Merging Company has 19,341,529 shares of common stock in issue, all of which are entitled to vote on the Merger as one class.
|
|
|
|
|
7
|
The
Surviving Company is authorised to issue 200,000,000 Ordinary Shares of US$0.001 par value each.
|
|
|
|
|
8
|
The
Surviving Company has one share in issue, all of which are entitled to vote on the Merger as one class.
|
|
|
|
|
9
|
Upon
the Merger, the separate corporate existence of the Merging Company shall cease and the Surviving Company shall become the owner,
without other transfer, of all the rights and property of the Merging Company and the Surviving Company shall become subject to all
liabilities obligations and penalties of the Merging Company.
|
|
|
|
|
10
|
The
terms and conditions of the Merger are as follows:
|
|
|
(a)
|
each
share issued and outstanding in the Merging Company on the effective date of the merger shall be converted into one Ordinary Share
of US$0.001 par value each in the Surviving Company;
|
|
|
|
|
|
|
(b)
|
each
outstanding and unexercised option, warrant or security exercisable or convertible by its terms into the common stock of the Merging
Company (including convertible promissory notes) if any, whether vested or unvested, which is outstanding immediately prior to the
Merger (collectively, the “Company Convertible Securities”) shall be assumed by the Surviving Company and shall
be deemed to constitute an option, warrant or convertible security, as the case may be, to acquire the same number of Ordinary Shares
of nominal or par value of US$0.001 each in the Surviving Company as the holder of such Company Convertible Securities would have
been entitled to receive had such holder exercised or converted such Company Convertible Securities in full immediately prior to
the Merger (not taking into account whether such Company Convertible Securities was in fact exercisable or convertible at such time),
at the same exercise price per share, and shall, to the extent permitted by law and otherwise reasonably practicable, have the same
term, exercisability, vesting schedule, status and all other material terms and conditions; and
|
|
|
(c)
|
the
one Ordinary share in the Surviving Company held by the Merging Company immediately prior to the Merger shall be surrendered for
no consideration and cancelled.
|
|
11
|
The
existing constitutional documents of the Surviving Company (filed at the Registry of Corporate Affairs on [ ], 2021 and
attached as Schedule 1) shall be the constitutional documents of the Surviving Company until the same are altered or amended or until
constitutional documents be adopted as provided therein.
|
|
|
|
|
12
|
The
Merger shall be effective as provided by the laws of the British Virgin Islands.
|
|
|
|
|
13
|
This
Plan of Merger may be executed in counterparts.
|
IN
WITNESS HEREOF the Parties hereto have caused this Plan of Merger to be executed as a deed on [ ]
|
|
|
|
Name:
|
|
|
Title:
|
|
|
For
or and on behalf of Moxian, Inc.
|
|
|
|
|
|
|
|
|
Name:
|
|
|
Title:
|
|
|
For
and on behalf of Moxian (BVI) Inc
|
|
SCHEDULE
1
Constitutional
Documents
of
Moxian (BVI) Inc as Surviving Company
ARTICLES OF MERGER
THESE ARTICLES OF MERGER (hereinafter
the “Articles of Merger”) are entered into on [ ] 2021 pursuant to section 172 (Merger with subsidiary)
of the BVI Business Companies Act, 2004.
PARTIES
|
(1)
|
Moxian, Inc., a company incorporated in
Nevada under the Nevada Revised Statutes on October 12, 2010 (with company number E0505002010-6) whose registered office is at 701
S. CARSON STREET, SUITE 200, Carson City, NV, 89701 (the “Merging Company”); and
|
|
|
|
|
(2)
|
Moxian (BVI) Inc, a company incorporated
in the British Virgin Islands under the Act on 18 May, 2021 (with company number 2063507) whose registered office is at Floor 4,
Banco Popular Building, Road Town, Tortola, British Virgin Islands (the “Surviving Company”).(together the “Parties”
and each a “Party”)
|
BACKGROUND
|
(A)
|
The
Merging Company is a corporation, authorised to issue up to 150,000,000 shares of common stock, US$0.001 par value per share, in
good standing with the Secretary of State of the State of Nevada and validly existing under the laws of Nevada.
|
|
|
|
|
(B)
|
The
Surviving Company is a company limited by shares, authorised to issue up to 200,000,000 shares of US$0.001 par value each, in good
standing at the Registry of Corporate Affairs in the British Virgin Islands and validly existing under the laws of the British Virgin
Islands.
|
|
|
|
|
(C)
|
The
Merging Company is the sole shareholder of the Surviving Company.
|
AGREED TERMS
|
1
|
The
Parties do hereby approve and adopt the Plan of Merger (a copy of which is attached at Schedule 1 to the intent that the merger shall
be effective on [ ], 2021 (the “Effective Date”).
|
|
|
|
|
2
|
The
articles of incorporation, as amended, and bylaws of the Merging Company were registered with the Secretary of State of the State
of Nevada in Nevada on May 2, 2011 and October 19, 2010, respectively.
|
|
|
|
|
3
|
The
memorandum and articles of association of the Surviving Company were registered with the Registrar of Companies in the British Virgin
Islands on [ ], 2021.
|
|
|
|
|
4
|
The
Merger and adoption of the existing constitutional documents of the Surviving Company (filed at the Registrar of Corporate Affairs
in the British Virgin Islands on [ ], 2021 attached as Schedule 2 as the constitutional documents of the Surviving
Company (the “Surviving Constitutional Documents”) was approved by the Surviving Company by Resolutions of Directors
dated [ ], 2021 and by the Merging Company by Resolutions of Directors dated [ ], 2021.
|
|
|
|
|
5
|
The
Merging Company and the Surviving Company have complied with all the provisions of the laws of the British Virgin Islands to enable
them to merge on the Effective Date.
|
|
|
|
|
6
|
The
name of the Surviving Company upon the consummation and effectiveness of this Merger shall remain unchanged.
|
IN WITNESS HEREOF the Parties hereto have
caused these Articles of Merger to be executed and delivered as a deed on by [DATE].
|
|
|
|
[NAME]
|
|
|
Signed for and on behalf of Moxian, Inc.
|
|
|
|
|
|
[NAME]
|
|
|
Signed for and on behalf of Moxian (BVI) Inc
|
|
SCHEDULE 1
Plan of Merger
SCHEDULE 2
Surviving Constitutional Documents
Annex 2
Form of Amended and Restated Memorandum of Association
and Articles of Association of Moxian (BVI) Inc
APPENDIX
B
Moxian
(BVI) Inc
Form
of Amended and Restated Memorandum and Articles of Association
BVI
Company No.: 2063507
TERRITORY
OF THE BRITISH VIRGIN ISLANDS
THE
BVI BUSINESS COMPANIES ACT, 2004
AMENDED
AND RESTATED MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
Moxian
(BVI) Inc
A
COMPANY LIMITED BY SHARES
Incorporated
18th day of May, 2021
Amended
and restated this 27 May, 2021
TERRITORY
OF THE BRITISH VIRGIN ISLANDS
THE
BVI BUSINESS COMPANIES ACT 2004 (the “Act”)
AMENDED
AND RESTATED
MEMORANDUM
OF ASSOCIATION
OF
Moxian
(BVI) Inc
A
COMPANY LIMITED BY SHARES
The
name of the Company is Moxian (BVI) Inc. The Company may by Resolution of Shareholders or Resolution of Directors resolve to change
its name and make application to the Registrar of Corporate Affairs in the approved form to give effect to such change of name
in accordance with section 21 of the Act.
The
Company is a company limited by shares.
The
first Registered Office of the Company is located at Floor 4, Banco Popular Building, Road Town, Tortola VG1110, British Virgin
Islands, the office of the first registered agent.
The
first Registered Agent of the Company is Campbells Corporate Services (BVI) Limited, Floor 4, Banco Popular Building, Road Town,
Tortola VG1110, British Virgin Islands.
Subject
to Clause 6 below, the objects for which the Company is established are unrestricted and the Company shall have full power and
authority to carry out any object not prohibited by the BVI Business Companies Act, 2004 or as the same may be revised from time
to time or any other law of the British Virgin Islands.
|
6.
|
LIMITATIONS
ON THE COMPANY’S BUSINESS
|
For
the purposes of section 9(4) of the Act, the business and activities of the company are limited to those business and activities
which are not prohibited under any law for the time being in force in the British Virgin Islands.
|
7.
|
NUMBER
AND CLASSES OF SHARES
|
The
Company is authorized to issue a maximum of 200,000,000 shares of a single class with a par value of US$0.001 each.
The
shares in the Company shall be issued in the currency of the United States of America.
The
Company may issue fractional shares. A fractional share shall have the corresponding fractional liabilities, limitations, preferences,
privileges, qualifications, restrictions, rights and other attributes of a whole share of the same class and series.
|
10.
|
DESIGNATIONS,
POWERS AND PREFERENCES OF SHARES
|
Each
share in the Company confers upon the shareholder:
|
|
(a)
|
the
right to one vote at a meeting of the shareholders of the Company or on any resolution of shareholders;
|
|
|
(b)
|
the
right to an equal share in any dividend paid by the Company; and
|
|
|
(c)
|
the
right to an equal share in the distribution of the surplus assets of the Company on its liquidation.
|
The
directors may at their discretion by resolution of directors redeem, purchase or otherwise acquire all or any of the shares in
the Company subject to Regulation 3 of the Articles.
If
at any time the Company is authorised to issue shares in different classes, the rights attached to any class of shares may only,
whether or not the Company is being wound up, be varied with the consent in writing of or by a resolution passed at a meeting
by the holders of more than 50 per cent of the issued shares of that class.
|
12.
|
RIGHTS
NOT VARIED BY THE ISSUE OF SHARES PARI PASSU
|
The
rights conferred upon the holders of the shares of any class issued with preferred or other rights shall not, unless otherwise
expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further
shares ranking pari passu therewith.
|
|
13.1.
|
The
Company shall issue registered shares only.
|
|
|
13.2.
|
The
Company is not authorised to issue bearer shares, convert registered shares to bearer shares or exchange registered shares
for bearer shares.
|
|
14.
|
AMENDMENT
OF MEMORANDUM AND ARTICLES
|
Subject
to Clause 11, the Company may amend its Memorandum or Articles by a resolution of shareholders or by a resolution of directors,
save that no amendment may be made by a resolution of directors:
|
|
(a)
|
to
restrict the rights or powers of the shareholders to amend the Memorandum or Articles;
|
|
|
(b)
|
to
change the percentage of shareholders required to pass a resolution of shareholders to amend the Memorandum or Articles;
|
|
|
(c)
|
in
circumstances where the Memorandum or Articles cannot be amended by the shareholders; or
|
|
|
(d)
|
to
Clauses 10, 11, 12 or this Clause 14.
|
Words
used in this Memorandum and not defined herein shall have the meanings set out in the Articles.
We,
Campbells Corporate Services (BVI) Limited, Floor 4, Banco Popular Building, Road Town, Tortola VG1110, British Virgin Islands,
for the purpose of incorporating a BVI Business Company under the laws of the British Virgin Islands hereby sign our name to this
Memorandum of Association this 18th day of May 2021.
Incorporator
Tamara
Pertabsingh
For
and on behalf of
Campbells
Corporate Services (BVI) Limited
TERRITORY
OF THE BRITISH VIRGIN ISLANDS
THE
BVI BUSINESS COMPANIES ACT 2004 (the “Act”)
AMENDED
AND RESTATED
ARTICLES
OF ASSOCIATION
OF
Moxian
(BVI) Inc
A
COMPANY LIMITED BY SHARES
References
in these Articles of Association (“Articles”) to the Act shall mean the BVI Business Companies Act, 2004 (No. 16 of
2004) and any modification, extension, re-enactment or renewal thereof, any amendments thereto and the BVI Business Companies
Regulations, 2012 and any other regulations made thereunder. The following Articles shall constitute the Articles of the Company.
In these Articles, words and expressions defined in the Act shall have the same meanings and, unless otherwise required by the
context, whenever the singular or plural number, or the masculine, feminine or neuter gender is used in these Articles, it shall
equally, where the context admits, include the others.
“Person”
means an individual, a corporation, a trust, the estate of a deceased individual, a partnership, an unincorporated association
or any legal entity capable of having a legal existence.
|
2.1.
|
Every
shareholder is entitled to a certificate signed by a director of the Company or under the seal specifying the number of shares
held by him and the signature of the director and the seal may be facsimiles.
|
|
2.2.
|
Any
shareholder receiving a certificate shall indemnify and hold the Company and its directors and officers harmless from any
loss or liability which it or they may incur by reason of any wrongful or fraudulent use or representation made by any person
by virtue of the possession thereof. If a share certificate is worn out or lost it may be renewed on production of the worn
out certificate or on satisfactory proof of its loss together with such indemnity as may be required by a resolution of directors.
|
|
2.3.
|
If
several persons are registered as joint holders of any shares, any one of such persons may give an effectual receipt for any
distribution.
|
|
2.4.
|
Shares
and other securities may be issued at such times, to such persons, for such consideration and on such terms as the directors
may by resolution of directors determine.
|
|
2.5.
|
Without
prejudice to the generality of the foregoing, the pre-emption rights set out in Section 46 of the Act shall not apply to the
Company.
|
|
2.6.
|
The
Company may issue securities convertible into shares, bonus shares, partly paid shares and nil paid shares.
|
|
2.7.
|
A
share may be issued for consideration in any form, including money, a promissory note, or other written obligation to contribute
money or property, real property, personal property (including goodwill and know-how), services rendered or a contract for
future services.
|
|
2.8.
|
Shares
may be issued for such amount of consideration as the directors may from time to time by resolution of directors determine,
except that in the case of shares issued with a par value, the consideration paid or payable shall not be less than the par
value.
|
|
2.9.
|
Before
issuing shares for a consideration other than money, the directors shall pass a resolution stating:
|
|
|
(a)
|
the
amount to be credited for the issue of the shares;
|
|
|
(b)
|
their
determination of the reasonable present cash value of the non-money consideration for the issue; and
|
|
|
(c)
|
that,
in their opinion, the present cash value of the non-money consideration for the issue is not less than the amount to be credited
for the issue of the shares.
|
|
2.10.
|
The
Company shall keep a register of members containing:
|
|
|
(a)
|
the
names and addresses of the persons who hold shares;
|
|
|
(b)
|
the
number of each class and series of shares held by each shareholder;
|
|
|
(c)
|
the
date on which the name of each shareholder became a shareholder; and
|
|
|
(d)
|
the
date on which any person ceased to be a shareholder.
|
|
2.11.
|
The
register of members may be in such form as the directors may approve, but if it is in magnetic, electronic or other data storage
form, the Company must be able to produce legible evidence of its contents. Until the directors otherwise determine, the magnetic,
electronic or other data storage form shall be the original register of members.
|
|
2.12.
|
A
share is deemed to be issued on the date of issue entered next to the name of the shareholder in the register of members.
|
|
3.
|
REDEMPTION
OF SHARES AND TREASURY SHARES
|
|
3.1.
|
The
Company may purchase, redeem or otherwise acquire and hold its own shares save that the Company may not purchase, redeem or
otherwise acquire its own shares without the consent of shareholders whose shares are to be purchased, redeemed or otherwise
acquired unless the Company is permitted by the Act or any other provision in the Memorandum or Articles to purchase, redeem
or otherwise acquire the shares without their consent.
|
|
3.2.
|
The
Company may only offer to acquire shares if at the relevant time the directors determine by resolution of directors that immediately
after the acquisition the value of the Company’s assets will exceed its liabilities and the Company will be able to
pay its debts as they fall due.
|
|
3.3.
|
Subject
to the provisions of the Act, the Company may make an offer to purchase, redeem or otherwise acquire its own shares from one
or more or all of the shareholders:
|
|
|
(a)
|
in
accordance with Sections 60, 61 and 62 of the Act; or
|
|
|
(b)
|
in
accordance with a right of a shareholder to have his shares redeemed or to have his shares exchanged for money or other property
of the Company; or
|
|
|
(c)
|
in
exchange for newly issued shares of equal value; or
|
|
|
(d)
|
pursuant
to the provisions of Section 179 of the Act.
|
|
3.4.
|
Shares
may only be held as treasury shares where, when aggregated with the number of shares of the same class already held by the
Company as treasury shares, the total number of treasury shares does not exceed 50% of the shares of that class previously
issued by the Company, excluding those shares that have been cancelled.
|
|
3.5.
|
All
rights and obligations attaching to a treasury share are suspended and shall not be exercised by or against the Company while
it holds the share as a treasury share.
|
|
3.6.
|
Treasury
shares may be disposed of by the Company on such terms and conditions (not otherwise inconsistent with the Memorandum and
Articles) as the Company may by resolution of directors determine.
|
|
3.7.
|
Where
shares are held by another body corporate of which the Company holds, directly or indirectly, shares having more than 50 per
cent of the votes in the election of directors of the other body corporate, all rights and obligations attaching to the shares
held by the other body corporate are suspended and shall not be exercised by the other body corporate.
|
|
4.
|
MORTGAGES
AND CHARGES OF SHARES
|
|
4.1.
|
Shareholders
may mortgage or charge their shares in the Company and upon satisfactory evidence thereof the Company shall give effect to
the terms of any valid mortgage or charge except in so far as it may conflict with any requirements herein contained for consent
to the transfer of shares.
|
|
4.2.
|
In
the case of the mortgage or charge of registered shares there may be entered in the register of members of the Company:
|
|
|
(a)
|
a
statement that the shares are mortgaged or charged;
|
|
|
(b)
|
the
name of the mortgagee or chargee; and
|
|
|
(c)
|
the
date on which the particulars specified in the preceding subparagraphs (a) and (b) are entered in the register of members.
|
|
4.3.
|
Where
particulars of a mortgage or charge are entered in the register of members, such particulars may be cancelled:
|
|
|
(a)
|
with
the written consent of the named mortgagee or chargee or anyone authorised to act on his behalf; or
|
|
|
(b)
|
upon
evidence satisfactory to the directors of the discharge of the liability secured by the mortgage or charge and the issue of
such indemnities as the directors shall consider necessary or desirable.
|
|
4.4.
|
Whilst
particulars of a mortgage or charge over shares are entered in the register of members pursuant to this Regulation:
|
|
|
(a)
|
no
transfer of any share the subject of those particulars shall be effected;
|
|
|
(b)
|
the
Company may not purchase, redeem or otherwise acquire any such share; and
|
|
|
(c)
|
no
replacement certificate shall be issued in respect of such shares, without the written consent of the named mortgagee or chargee.
|
|
4.5.
|
The
directors may not resolve to refuse or delay the transfer of a share pursuant to the enforcement of a valid security interest
created over the share.
|
|
5.1.
|
Shares
that are not fully paid on issue are subject to the forfeiture provisions set forth in this Regulation and for this purpose
shares issued for a promissory note, or other written obligation to contribute money or property, or a contract for future
services are deemed to be not fully paid.
|
|
5.2.
|
A
written notice of call specifying the date for payment to be made shall be served on the shareholder who defaults in making
payment in respect of the shares.
|
|
5.3.
|
The
written notice of call referred to in Sub-Regulation 5.2 shall name a further date not earlier than the expiration of 14 days
from the date of service of the notice on or before which the payment required by the notice is to be made and shall contain
a statement that in the event of non-payment at or before the time named in the notice the shares, or any of them, in respect
of which payment is not made will be liable to be forfeited.
|
|
5.4.
|
Where
a written notice of call has been issued pursuant to Sub-Regulation 5.3 and the requirements of the notice have not been complied
with, the directors may, at any time before tender of payment, forfeit and cancel the shares to which the notice relates.
|
|
5.5.
|
The
Company is under no obligation to refund any moneys to the shareholder whose shares have been cancelled pursuant to Sub-Regulation
5.4 and that shareholder shall be discharged from any further obligation to the Company.
|
|
6.
|
TRANSFER
OF SHARES
|
|
6.1.
|
Shares
may be transferred by a written instrument of transfer signed by the transferor and containing the name and address of the
transferee, which shall be sent to the Company at the office of its registered agent for registration. In the case of the
transfer of a share that imposes a liability to the Company on the transferee, the instrument of transfer shall also be signed
by the transferee.
|
|
6.2.
|
The
Company shall, on receipt of an instrument of transfer complying with the above Sub-Regulation 6.1, enter the name of the
transferee of a share in the register of members unless the directors resolve to refuse or delay the registration of the transfer
for reasons that shall be specified in a resolution of directors.
|
|
6.3.
|
The
directors may not resolve to refuse or delay the transfer of a share unless the shareholder has failed to pay an amount due
in respect of the share, or such refusal or delay is deemed necessary or advisable in the view of the Company or of the Company’s
legal counsel in order to avoid violation of, or in order to ensure compliance with, any applicable corporate, securities
and other laws and regulations.
|
|
6.4.
|
The
transfer of a share is effective when the name of the transferee is entered on the register of members.
|
|
6.5.
|
If
the directors of the Company are satisfied that an instrument of transfer relating to shares has been signed but that the
instrument has been lost or destroyed, they may resolve by resolution of directors:
|
|
|
(a)
|
to
accept such evidence of the transfer of shares as they consider appropriate; and
|
|
|
(b)
|
that
the transferee’s name should be entered in the register of members notwithstanding the absence of the instrument of
transfer.
|
|
6.6.
|
Subject
to the Memorandum, the personal representative of a deceased shareholder may transfer a share even though the personal representative
is not a shareholder at the time of the transfer.
|
|
7.1.
|
Any
director of the Company may convene meetings of the members at such times and in such manner and places within or outside
the British Virgin Islands as the director considers necessary or desirable.
|
|
7.2.
|
Upon
the written request of shareholders entitled to exercise 30% or more of the voting rights in respect of the matter for which
the meeting is requested, the directors shall convene a meeting of shareholders within 28 days of receiving the written request.
In the event that the directors fail to convene a meeting of shareholders within 28 days, then:
|
|
|
(b)
|
the
company secretary; or
|
|
|
(c)
|
the
shareholder who issued the written request, or where there is more than one, any one of those shareholders,
|
may
convene a meeting of shareholders, and the provisions of these Articles with regard to convening a meeting of shareholders shall
apply, construing references to the directors as references to the party convening the meeting.
|
7.3.
|
A
member may be represented at a meeting of members by a proxy who may speak and vote on behalf of the member.
|
|
7.4.
|
The
instrument appointing a proxy shall be produced at the place designated for the meeting before the time for holding the meeting
at which the person named in such instrument proposes to vote. The notice of the meeting may specify an alternative or additional
place or time at which the proxy shall be presented.
|
|
7.5.
|
The
instrument appointing a proxy shall be in substantially the following form or such other form as the chairman of the meeting
shall accept as properly evidencing the wishes of the member appointing the proxy.
|
MOXIAN
(BVI) INC
(the
“Company”)
I/We
being a member of the above Company HEREBY APPOINT ……………………………
of …………………………… or failing him ………..………………
of ………………………..…… to be my/our proxy to vote for me/us
at the meeting of members to be held on the …… day of …………..…………,
20…… and at any adjournment thereof.
(Any
restrictions on voting to be inserted here.)
Signed
this …… day of …………..…………, 20……
……………………………
Member
|
7.6.
|
The
following applies where shares are jointly owned:
|
|
|
(a)
|
if
two or more persons hold shares jointly each of them may be present in person or by proxy at a meeting of members and may
speak as a member;
|
|
|
(b)
|
if
only one of the joint owners is present in person or by proxy he may vote on behalf of all joint owners; and
|
|
|
(c)
|
if
two or more of the joint owners are present in person or by proxy they must vote as one.
|
|
7.7.
|
A
member shall be deemed to be present at a meeting of members if he participates by telephone or other electronic means and
all members participating in the meeting are able to hear each other.
|
|
8.
|
NOTICE
OF MEETINGS OF MEMBERS
|
|
8.1.
|
The
director convening a meeting shall give not less than seven days notice of a meeting of members to:
|
|
|
(a)
|
those
members whose names on the date the notice is given appear as members in the register of members of the Company and are entitled
to vote at the meeting; and
|
|
8.2.
|
Notwithstanding
Sub-Regulation 8.1, a meeting of members held in contravention of the requirement to give notice is valid if members holding
at least 90 per cent of the total voting rights on all the matters to be considered at the meeting have waived notice of the
meeting and, for this purpose, the presence of a member at the meeting shall constitute waiver in relation to all the shares
which that member holds.
|
|
8.3.
|
The
inadvertent failure of a director who convenes a meeting to give notice of a meeting to a member or another director, or the
fact that a member or another director has not received notice, does not invalidate the meeting.
|
|
8.4.
|
The
director convening a meeting of members may fix as the record date for determining those members that are entitled to vote
at the meeting the date notice is given of the meeting or such other date as may be specified in the notice, being a date
not earlier than the date of the notice.
|
|
9.
|
QUORUM
FOR MEETINGS OF MEMBERS
|
|
9.1.
|
The
quorum for a meeting of members is duly constituted if, at the commencement of the meeting, there are present in person or
by proxy not less than one-third (1/3) of the votes of the shares or class or series of shares entitled to vote on resolutions
of members to be considered at the meeting. A quorum may comprise a single member or proxy and then such person may pass a
resolution of members and a certificate signed by such person accompanied where such person be a proxy by a copy of the proxy
instrument shall constitute a valid resolution of members.
|
|
9.2.
|
If
within two hours from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition
of members, shall be dissolved; in any other case it shall stand adjourned to the next business day in the jurisdiction in
which the meeting was to have been held at the same time and place or to such other time and place as the directors may determine,
and if at the adjourned meeting there are present within one hour from the time appointed for the meeting in person or by
proxy not less than one third of the votes of the shares or each class or series of shares entitled to vote on the matters
to be considered by the meeting, those present shall constitute a quorum but otherwise the meeting shall be dissolved.
|
|
10.
|
PROCEEDINGS
OF MEETINGS OF MEMBERS
|
|
10.1.
|
At
any meeting of the members the chairman is responsible for deciding in such manner as he considers appropriate whether any
resolution proposed has been carried or not and the result of his decision shall be announced to the meeting and recorded
in the minutes of the meeting. If the chairman has any doubt as to the outcome of the vote on a proposed resolution, he shall
cause a poll to be taken of all votes cast upon such resolution. If the chairman fails to take a poll then any member present
in person or by proxy who disputes the announcement by the chairman of the result of any vote may immediately following such
announcement demand that a poll be taken and the chairman shall cause a poll to be taken. If a poll is taken at any meeting,
the result shall be announced to the meeting and recorded in the minutes of the meeting.
|
|
10.2.
|
At
every meeting of members, the chairman of the board shall preside as chairman of the meeting. If there is no chairman of the
board or if the chairman of the board is not present at the meeting, the members present shall choose one of their numbers
to be the chairman. If the members are unable to choose a chairman for any reason, then the person representing the greatest
number of voting shares present in person or by proxy at the meeting shall preside as chairman failing which the oldest individual
member or representative of a member present shall take the chair.
|
|
10.3.
|
The
chairman may, with the consent of the meeting, adjourn any meeting from time to time, and from place to place, but no business
shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment
took place.
|
|
10.4.
|
Any
person other than an individual which is a member of the Company may by resolution of its directors or other governing body
authorise such individual as it thinks fit to act as its representative at any meeting of members or of any class of members,
and the individual so authorised shall be entitled to exercise the same rights on behalf of the person which he represents
as that person could exercise if it were an individual.
|
|
10.5.
|
The
chairman of any meeting at which a vote is cast by proxy or on behalf of any person other than an individual may call for
a notarial certified copy of such proxy or authority which shall be produced within 7 days of being so requested or the votes
cast by such proxy or on behalf of such person shall be disregarded.
|
|
10.6.
|
Directors
of the Company may attend and speak at any meeting of members and at any separate meeting of the holders of any class or series
of shares.
|
|
10.7.
|
An
action that may be taken by the members at a meeting may also be taken by a resolution of members consented to in writing,
without the need for any notice, but if any resolution of members is adopted otherwise than by the unanimous written consent
of all members, a copy of such resolution shall forthwith be sent to all members not consenting to such resolution. The consent
may be in the form of counterparts, each counterpart being signed by one or more members. If the consent is in one or more
counterparts, and the counterparts bear different dates, then the resolution shall take effect on the earliest date upon which
persons holding a sufficient number of votes of shares to constitute a resolution of members have consented to the resolution
by signed counterparts.
|
|
10.8.
|
If
the Company shall have only one member the provisions herein contained for meetings of the members shall not apply and in
lieu of minutes of a meeting shall record in writing and sign a note or memorandum of all matters requiring a resolution of
members. Such a note or memorandum shall constitute sufficient evidence of such resolution for all purposes.
|
|
11.1.
|
Subject
to any subsequent amendment to change the number of directors, the minimum number of directors shall be one.
|
|
11.2.
|
No
person shall be appointed as a director of the Company, an alternate director or nominated as a reserve director, unless he
has consented in writing to act as a director, an alternate director or to be nominated as a reserve director.
|
|
11.3.
|
The
first directors of the Company shall be appointed by the first registered agent within six months of the incorporation date
of the Company; and thereafter, the directors shall be elected by resolution of members or by resolution of directors for
such term as the members or directors determine. If, before the Company has any members, the sole director or all of the directors
appointed by the first registered agent, resign or die, or in the case of a director that is not an individual, ceases to
exist, the first registered agent may appoint one or more further persons as directors of the Company.
|
|
11.4.
|
Each
director holds office for the term, if any, fixed by the resolution of members or resolution of directors appointing him,
or until his earlier death, resignation or removal. If no term is fixed on the appointment of a director, the director serves
indefinitely until his earlier death, resignation or removal.
|
|
11.5.
|
A
vacancy in the board of directors may be filled by a resolution of members or a resolution passed by the majority of the remaining
directors.
|
|
11.6.
|
A
vacancy in relation to directors occurs if a director dies or otherwise ceases to hold office prior to the expiration of his
term of office.
|
|
11.7.
|
A
director may be removed from office by a resolution of members or by resolution of directors. A resolution passed under this
Regulation may only be passed at a meeting called for the purpose of removing the director or for purposes including the removal
of the director or by a written resolution passed by at least seventy-five percent (75%) of the votes of the members or directors
of the Company entitled to vote.
|
|
11.8.
|
A
director may resign his office by giving written notice of his resignation to the Company and the resignation has effect from
the date the notice is received by the Company at the office of its registered agent or from such later date as may be specified
in the notice. A director shall resign forthwith as a director if he is, or becomes, disqualified from acting as a director
under the Act.
|
|
11.9.
|
The
Company shall keep a register of directors containing:
|
|
|
(a)
|
the
names and addresses of the persons who are directors of the Company;
|
|
|
(b)
|
the
date on which each person whose name is entered in the register was appointed as a director of the Company;
|
|
|
(c)
|
the
date on which each person named as a director ceased to be a director of the Company; and
|
|
|
(d)
|
such
other information as may be prescribed by the Act.
|
|
11.10.
|
The
register of directors may be kept in any such form as the directors may approve, but if it is in magnetic, electronic or other
data storage form, the Company must be able to produce legible evidence of its contents. Until the directors otherwise determine,
the magnetic, electronic or other data storage shall be the original register of directors.
|
|
11.11.
|
The
directors may, by a resolution of directors, fix the emoluments of directors with respect to services to be rendered in any
capacity to the Company.
|
|
11.12.
|
A
director is not required to hold a share as a qualification to office.
|
|
12.1.
|
The
business and affairs of the Company shall be managed by, or under the direction or supervision of, the directors of the Company.
The directors of the Company have all the powers necessary for managing, and for directing and supervising, the business and
affairs of the Company. The directors may pay all expenses incurred preliminary to and in connection with the incorporation
of the Company and may exercise all such powers of the Company as are not by the Act or by the Memorandum or the Articles
required to be exercised by the members.
|
|
12.2.
|
Each
director shall exercise his powers for a proper purpose and shall not act or agree to the Company acting in a manner that
contravenes the Memorandum, the Articles or the Act. Each director, in exercising his powers or performing his duties, shall
act honestly and in good faith in what the director believes to be the best interests of the Company.
|
|
12.3.
|
If
the Company is the wholly owned subsidiary of a holding company, a director of the Company may, when exercising powers or
performing duties as a director, act in a manner which he believes is in the best interests of the holding company even though
it may not be in the best interests of the Company.
|
|
12.4.
|
Any
director which is a body corporate may appoint any individual as its duly authorised representative for the purpose of representing
it at meetings of the directors, with respect to the signing of consents or otherwise.
|
|
12.5.
|
The
continuing directors may act notwithstanding any vacancy in their body.
|
|
12.6.
|
The
directors may by resolution of directors exercise all the powers of the Company to incur indebtedness, liabilities or obligations
and to secure indebtedness, liabilities or obligations whether of the Company or of any third party.
|
|
12.7.
|
All
cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for moneys paid to
the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner as shall
from time to time be determined by resolution of directors.
|
|
12.8.
|
For
the purposes of Section 175 (Disposition of assets) of the Act, the directors may by resolution of directors determine
that any sale, transfer, lease, exchange or other disposition is in the usual or regular course of the business carried on
by the Company and such determination is, in the absence of fraud, conclusive.
|
|
12.9.
|
The
directors may from time to time and at any time by an instrument in writing appoint any person, firm or corporate body whether
appointed directly or indirectly as its attorney either generally or in relation to a specific matter.
|
|
12.10.
|
An
act of an attorney appointed under Sub-Regulation 12.9 in accordance with the instrument under which the attorney was appointed
binds the Company.
|
|
12.11.
|
An
instrument appointing an attorney under Sub-Regulation 12.9 may either be executed as a deed or signed by a person acting
under the express or implied authority of the Company.
|
|
13.
|
PROCEEDINGS
OF DIRECTORS
|
|
13.1.
|
Any
one director of the Company may call a meeting of the directors by sending a written notice to each other director.
|
|
13.2.
|
The
directors of the Company or any committee thereof may meet at such times and in such manner and places within or outside the
British Virgin Islands as the directors may determine to be necessary or desirable.
|
|
13.3.
|
A
director is deemed to be present at a meeting of directors if he participates by telephone or other electronic means and all
directors participating in the meeting are able to hear each other.
|
|
13.4.
|
A
director shall be given not less than 3 days’ notice of meetings of directors, but a meeting of directors held without
3 days’ notice having been given to all directors shall be valid if all the directors entitled to vote at the meeting
waive notice of the meeting, and for this purpose the presence of a director at a meeting shall constitute waiver by that
director. The inadvertent failure to give notice of a meeting to a director, or the fact that a director has not received
the notice, does not invalidate the meeting.
|
|
13.5.
|
A
director of the Company may appoint any other director or any other person, not disqualified from an appointment as a director,
as his alternate to exercise the appointing director’s powers and carry out the appointing director’s responsibilities.
|
|
|
(a)
|
An
alternate director has the same rights as the appointing director in relation to any director’s meeting and any written
resolution circulated for written consent.
|
|
|
(b)
|
Subject
to the Act and Regulation 17, an alternate director is liable for his own acts and omission as an alternate director whilst
acting in that capacity.
|
|
|
(c)
|
The
appointment and termination of an alternate director must be in writing and written notice of the appointment and termination
must be given by the appointing director to the Company as soon as reasonably practicable.
|
|
|
(d)
|
The
appointing director may, at any time, voluntarily terminate the alternate director’s appointment which shall take effect
from the time when the written notice of this termination is given to the Company.
|
|
|
(e)
|
The
rights of an alternate director shall terminate upon the death of the appointing director or if the appointing director, otherwise
ceases to hold office.
|
|
13.6.
|
A
meeting of directors is duly constituted for all purposes if at the commencement of the meeting there are present in person
or by alternate not less than one-half of the total number of directors, unless there are only 2 directors in which case the
quorum is 2.
|
|
13.7.
|
If
the Company has only one director the provisions herein contained for meetings of directors do not apply and such sole director
has full power to represent and act for the Company in all matters as are not by the Act, the Memorandum or the Articles required
to be exercised by the shareholders. In lieu of minutes of a meeting the sole director shall record in writing and sign a
note or memorandum of all matters requiring a resolution of directors. Such a note or memorandum constitutes sufficient evidence
of such resolution for all purposes.
|
|
13.8.
|
At
meetings of directors at which the chairman of the board is present, he shall preside as chairman of the meeting. If there
is no chairman of the board or if the chairman of the board is not present, the directors present shall choose one of their
numbers to be chairman of the meeting.
|
|
13.9.
|
An
action that may be taken by the directors or a committee of directors at a meeting may also be taken by a resolution of directors
or a resolution of a committee of directors consented to in writing or by telex, telegram, cable or other written electronic
communication, without the need for any notice by a majority of the directors or members of the committee of directors, but
if any resolution is adopted otherwise than by the unanimous written consent of all directors or all members of a committee
of directors, a copy of such resolution shall forthwith be sent to all directors or all members of a committee of directors
not consenting to such resolution. The consent may be in the form of counterparts each counterpart being signed by one or
more directors. If the consent is in one or more counterparts, and the counterparts bear different dates, then the resolution
shall take effect on the date upon which sufficient number of directors to constitute a resolution of directors or a resolution
of a committee of directors has consented to the resolution by signed counterparts.
|
|
14.1.
|
The
directors may, by resolution of directors, designate one or more committees, each consisting of one or more directors, and
delegate one or more of their powers, including the power to affix the seal, to the committee.
|
|
14.2.
|
The
directors have no power to delegate to a committee of directors any of the following powers:
|
|
|
(a)
|
to
amend the Memorandum or the Articles;
|
|
|
(b)
|
to
change the registered office or agent;
|
|
|
(c)
|
to
designate committees of directors;
|
|
|
(d)
|
to
delegate powers to a committee of directors;
|
|
|
(e)
|
to
appoint or remove directors;
|
|
|
(f)
|
to
appoint or remove an agent;
|
|
|
(g)
|
to
fix emoluments of directors;
|
|
|
(h)
|
to
approve a plan of merger, consolidation or arrangement;
|
|
|
(i)
|
to
make a declaration of solvency for the purposes of Section 198(1)(a) of the Act or to approve a liquidation plan;
|
|
|
(j)
|
to
make a determination under Section 57(1) of the Act that the Company will, immediately after a proposed distribution, satisfy
the solvency test; or
|
|
|
(k)
|
to
authorize the Company to continue as a Company incorporated under the laws of a jurisdiction outside the British Virgin Islands.
|
|
14.3.
|
Sub-Regulation
14.2(c) and (d) do not prevent a committee of directors, where authorised by the resolution of directors appointing such committee
or by a subsequent resolution of directors, from appointing a sub-committee and delegating powers exercisable by the committee
to the sub-committee.
|
|
14.4.
|
The
meetings and proceedings of each committee of directors consisting of 2 or more directors shall be governed mutatis mutandis
by the provisions of the Articles regulating the proceedings of directors so far as the same are not superseded by any
provisions in the resolution of directors establishing the committee.
|
|
14.5.
|
Where
the directors delegate their powers to a committee of directors they remain responsible for the exercise of that power by
the committee, unless they believed on reasonable grounds at all times before the exercise of the power that the committee
would exercise the power in conformity with the duties imposed on directors of the Company under the Act.
|
|
15.1.
|
The
Company may by resolution of directors appoint officers of the Company at such times as may be considered necessary or expedient.
Such officers may consist of a chairman of the board of directors, a president and one or more vice-presidents, secretaries
and treasurers and such other officers as may from time to time be considered necessary or expedient. Any number of offices
may be held by the same person.
|
|
15.2.
|
The
officers shall perform such duties as are prescribed at the time of their appointment subject to any modification in such
duties as may be prescribed thereafter by resolution of directors. In the absence of any specific prescription of duties it
shall be the responsibility of the chairman of the board to preside at meetings of directors and shareholders, the president
to manage the day to day affairs of the Company, the vice-presidents to act in order of seniority in the absence of the president
but otherwise to perform such duties as may be delegated to them by the president, the secretaries to maintain the register
of members, minute books and records (other than financial records) of the Company and to ensure compliance with all procedural
requirements imposed on the Company by applicable law, and the treasurer to be responsible for the financial affairs of the
Company.
|
|
15.3.
|
The
emoluments of all officers shall be fixed by resolution of directors.
|
|
15.4.
|
The
officers of the Company shall hold office until their successors are duly appointed, but any officer elected or appointed
by the directors may be removed at any time, with or without cause, by resolution of directors. Any vacancy occurring in any
office of the Company may be filled by resolution of directors.
|
|
15.5.
|
The
directors may, by a resolution of directors, appoint any person, including a person who is a director, to be an agent of the
Company. An agent of the Company shall have such powers and authority of the directors, including the power and authority
to affix the seal, as are set forth in the Articles or in the resolution of directors appointing the agent, except that no
agent has any power or authority with respect to the matters specified in Sub-Regulation 14.2. The resolution of directors
appointing an agent may authorise the agent to appoint one or more substitutes or delegates to exercise some or all of the
powers conferred on the agent by the Company. The directors may remove an agent appointed by the Company and may revoke or
vary a power conferred on him.
|
|
16.
|
CONFLICT
OF INTERESTS
|
|
16.1.
|
A
director of the Company shall, forthwith after becoming aware of the fact that he is interested in a transaction entered into
or to be entered into by the Company, disclose the interest to all other directors of the Company.
|
|
16.2.
|
For
the purposes of Sub-Regulation 16.1, a disclosure to all other directors to the effect that a director is a member, director
or officer of another named entity or has a fiduciary relationship with respect to the entity or a named individual and is
to be regarded as interested in any transaction which may, after the date of the entry or disclosure, be entered into with
that entity or individual, is a sufficient disclosure of interest in relation to that transaction.
|
|
16.3.
|
A
director of the Company who is interested in a transaction entered into or to be entered into by the Company may:
|
|
|
(a)
|
vote
on a matter relating to the transaction;
|
|
|
(b)
|
attend
a meeting of directors at which a matter relating to the transaction arises and be included among the directors present at
the meeting for the purposes of a quorum; and
|
|
|
(c)
|
sign
a document on behalf of the Company, or do any other thing in his capacity as a director, that relates to the transaction,
|
and,
subject to compliance with the Act shall not, by reason of his office be accountable to the Company for any benefit which he derives
from such transaction and no such transaction shall be liable to be avoided on the grounds of any such interest or benefit.
|
17.1.
|
Subject
to the limitations hereinafter provided the Company shall indemnify against all expenses, including legal fees, and against
all judgments, fines and amounts paid in settlement and reasonably incurred in connection with legal, administrative or investigative
proceedings any person who:
|
|
|
(a)
|
is
or was a party or is threatened to be made a party to any threatened, pending or completed proceedings, whether civil, criminal,
administrative or investigative, by reason of the fact that the person is or was a director of the Company; or
|
|
|
(b)
|
is
or was, at the request of the Company, serving as a director of, or in any other capacity is or was acting for, another body
corporate or a partnership, joint venture, trust or other enterprise.
|
|
17.2.
|
The
indemnity in Sub-Regulation 17.1 only applies if the person acted honestly and in good faith with a view to the best interests
of the Company and, in the case of criminal proceedings, the person had no reasonable cause to believe that their conduct
was unlawful.
|
|
17.3.
|
The
decision of the directors as to whether the person acted honestly and in good faith and with a view to the best interests
of the Company and as to whether the person had no reasonable cause to believe that his conduct was unlawful is, in the absence
of fraud, sufficient for the purposes of the Articles, unless a question of law is involved.
|
|
17.4.
|
The
termination of any proceedings by any judgment, order, settlement, conviction or the entering of a nolle prosequi does
not, by itself, create a presumption that the person did not act honestly and in good faith and with a view to the best interests
of the Company or that the person had reasonable cause to believe that his conduct was unlawful.
|
|
17.5.
|
The
Company may purchase and maintain insurance in relation to any person who is or was a director, officer or liquidator of the
Company, or who at the request of the Company is or was serving as a director, officer or liquidator of, or in any other capacity
is or was acting for, another body corporate or a partnership, joint venture, trust or other enterprise, against any liability
asserted against the person and incurred by the person in that capacity, whether or not the Company has or would have had
the power to indemnify the person against the liability as provided in the Articles.
|
|
18.1.
|
The
Company shall keep the following documents at the office of its registered agent:
|
|
|
(a)
|
the
Memorandum and the Articles;
|
|
|
(b)
|
the
register of members, or a copy of the register of members;
|
|
|
(c)
|
the
register of directors, or a copy of the register of directors; and
|
|
|
(d)
|
copies
of all notices and other documents filed by the Company with the Registrar of Corporate Affairs in the previous ten (10) years.
|
|
18.2.
|
If
the Company maintains only a copy of the register of members or a copy of the register of directors at the office of its registered
agent, it shall:
|
|
|
(a)
|
within
15 days of any change in either register, notify the registered agent in writing of the change; and
|
|
|
(b)
|
provide
the registered agent with a written record of the physical address of the place or places at which the original register of
members or the original register of directors is kept.
|
|
18.3.
|
The
Company shall keep the following records and underlying documentation at the office of its registered agent or at such other
place or places, within or outside the British Virgin Islands, as the directors may determine:
|
|
|
(a)
|
minutes
of meetings and resolutions of members and classes of members; and
|
|
|
(b)
|
minutes
of meetings and resolutions of directors and committees of directors.
|
|
18.4.
|
The
records and underlying documentation shall be retained for a period of 5 years from the date of completion of the transaction
to which the records and underlying documentation relate or from the date that the Company terminates the business relationship
to which the records and underlying documentation relate.
|
|
18.5.
|
Where
any original records and underlying documentation referred to in this Regulation are maintained other than at the office of
the registered agent of the Company, the Company shall provide the registered agent with a written record of the physical
address of the place or places at which the records and underlying documentation are kept.
|
|
18.6.
|
Where
the place at which the original records and underlying documentation of the Company changes, the Company shall provide its
registered agent with the physical address of the new location of the records and underlying documentation within 14 days
of the change of the location.
|
|
18.7.
|
The
records and underlying documentation of the Company referred to in this Regulation shall be in such form as are sufficient
to show and explain the Company’s transactions and will, at any time, enable the financial position of the Company to
be determined with reasonable accuracy.
|
|
18.8.
|
The
records kept by the Company under this Regulation shall be in written form or either wholly or partly as electronic records
complying with the requirements of the Electronic Transactions Act (No. 5 of 2001).
|
The
Company shall have a common seal and the directors shall provide for the safe custody of the seal and for an imprint thereof to
be kept at the office of the registered agent of the Company. Except as otherwise expressly provided herein, the seal when affixed
to any written instrument shall be witnessed and attested to by the signature of any one director or other person so authorised
from time to time by resolution of directors. Such authorisation may be before or after the seal is affixed, may be general or
specific and may refer to any number of sealings. The directors may provide for a facsimile of the seal and of the signature of
any director or authorised person which may be reproduced by printing or other means on any instrument and it shall have the same
force and validity as if the seal had been affixed to such instrument and the same had been attested to as hereinbefore described.
|
20.1.
|
The
directors of the Company may, by resolution of directors, authorise a distribution by way of dividend at such time at such
amount as they think fit if they are satisfied, on reasonable grounds, that, immediately after the distribution, the value
of the Company’s assets will exceed its liabilities and the Company will be able to pay its debts as they fall due.
|
|
20.2.
|
Dividends
may be paid in money, shares, or other property.
|
|
20.3.
|
Notice
of any dividend that may have been declared shall be given to each shareholder as specified in Sub-Regulation 23.1 and all
dividends unclaimed for 3 years after having been declared may be forfeited by resolution of directors for the benefit of
the Company.
|
|
20.4.
|
No
dividend shall bear interest as against the Company and no dividend shall be paid on treasury shares.
|
|
20.5.
|
The
directors may, before making any distributions, set aside out of the profits of the Company such sum as they think proper
as a reserve fund, and may invest the sum so set apart as a reserve fund upon such securities as they may select.
|
|
20.6.
|
The
directors may determine in their sole discretion to issue bonus shares from time to time.
|
|
20.7.
|
A
division of the issued and outstanding shares of a class or series of shares into a larger number of shares of the same class
or series having a proportionately smaller par value does not constitute the issue of a bonus share.
|
|
|
21.1.
|
The
Company shall keep records that are sufficient to show and explain the Company’s transactions and that will, at any
time, enable the financial position of the Company to be determined with reasonable accuracy.
|
|
|
21.2.
|
The
Company may by resolution of shareholders call for the directors to prepare periodically and make available a profit and loss
account and a balance sheet. The profit and loss account and balance sheet shall be drawn up so as to give respectively a
true and fair view of the profit and loss of the Company for a financial period and a true and fair view of the assets and
liabilities of the Company as at the end of a financial period.
|
|
22.1.
|
The
Company may by resolution of shareholders call for the accounts to be examined by auditors.
|
|
22.2.
|
The
first auditors shall be appointed by resolution of directors; subsequent auditors shall be appointed by a resolution of shareholders.
|
|
22.3.
|
The
auditors may be shareholders, but no director or other officer shall be eligible to be an auditor of the Company during their
continuance in office.
|
|
22.4.
|
The
remuneration of the auditors of the Company:
|
|
|
(a)
|
in
the case of auditors appointed by the directors, may be fixed by resolution of directors; and
|
|
|
(b)
|
subject
to the foregoing, shall be fixed by resolution of shareholders or in such manner as the Company may by resolution of shareholders
determine.
|
|
22.5.
|
The
auditors shall examine each profit and loss account and balance sheet required to be laid before a meeting of the shareholders
or otherwise given to shareholders and shall state in a written report whether or not:
|
|
|
(a)
|
in
their opinion the profit and loss account and balance sheet give a true and fair view respectively of the profit and loss
for the period covered by the accounts, and of the assets and liabilities of the Company at the end of that period; and
|
|
|
(b)
|
all
the information and explanations required by the auditors have been obtained.
|
|
22.6.
|
The
report of the auditors shall be annexed to the accounts and shall be read at the meeting of shareholders at which the accounts
are laid before the Company or shall be otherwise given to the shareholders.
|
|
22.7.
|
Every
auditor of the Company shall have a right of access at all times to the books of account and vouchers of the Company, and
shall be entitled to require from the directors and officers of the Company such information and explanations as he thinks
necessary for the performance of the duties of the auditors.
|
|
22.8.
|
The
auditors of the Company shall be entitled to receive notice of, and to attend any meetings of shareholders at which the Company’s
profit and loss account and balance sheet are to be presented.
|
|
23.1.
|
Any
notice, information or written statement to be given by the Company to shareholders may be given by personal service or by
mail addressed to each shareholder at the address shown in the register of members.
|
|
23.2.
|
Any
summons, notice, order, document, process, information or written statement to be served on the Company may be served by leaving
it, or by sending it by registered mail addressed to the Company, at its registered office, or by leaving it with, or by sending
it by registered mail to, the registered agent of the Company.
|
|
23.3.
|
Service
of any summons, notice, order, document, process, information or written statement to be served on the Company may be proved
by showing that the summons, notice, order, document, process, information or written statement was delivered to the registered
office or the registered agent of the Company or that it was mailed in such time as to admit to its being delivered to the
registered office or the registered agent of the Company in the normal course of delivery within the period prescribed for
service and was correctly addressed and the postage was prepaid.
|
|
24.
|
VOLUNTARY
WINDING UP AND DISSOLUTION
|
|
24.1.
|
The
Company may voluntarily commence to wind up and dissolve if
|
|
|
(a)
|
it
has no liabilities; or
|
|
|
(b)
|
is
able to pay its debts as they fall due,
|
by
a resolution of shareholders or if, the Company has never issued shares, by a resolution of directors.
|
24.2.
|
The
Company may by a resolution of shareholders or by a resolution of directors appoint a voluntary liquidator.
|
|
24.3.
|
Where
a liquidator has been appointed by a resolution of directors, the shareholders of a company may by a resolution of the shareholders
appoint an eligible person, subject to the Act, as an additional voluntary liquidator to act jointly with the voluntary liquidator
appointed.
|
The
Company may by resolution of shareholders or by a resolution passed unanimously by all directors of the Company continue as a
company incorporated under the laws of a jurisdiction outside the British Virgin Islands in the manner provided under those laws.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
20. Indemnification of Directors and Officers
British
Virgin Islands law does not limit the extent to which a company’s articles of association may provide for indemnification of officers
and directors, except to the extent any such provision may be held by the British Virgin Islands courts to be contrary to public policy,
such as to provide indemnification against actual fraud or the consequences of committing a crime. Our articles of association permit
indemnification of officers and directors (including former officers and directors) out of the assets of the company against any liability,
action, proceeding, claim, demand, costs, damages or expenses, including legal expenses, whatsoever which they or any of them may incur
as a result of any act or failure to act in carrying out their functions other than such liability (if any) that they may incur by reason
of their own actual fraud or willful default.
We
expect to enter into indemnification agreements with our directors, executive officers and with certain other officers and employees
(including officers and employees of its subsidiaries). The indemnification agreements will generally require that we indemnify and hold
an indemnitee harmless to the fullest extent permitted by law for liabilities arising out of the indemnitee’s association with
us or another entity where he or she acts or acted as a director or officer or in a similar capacity at our request, if the indemnitee
acted honestly and in good faith with a view to the best interests of us or other entity, as the case may be and, with respect to a criminal
or administrative action or proceeding that is enforced by monetary penalty, if the indemnitee had no reasonable grounds to believe that
his or her conduct was unlawful. The indemnification agreements also provide for the advancement of defense expenses by us.
Item
21. Exhibits and Financial Statement Schedules
*
To be filed by amendment
Item
22. Undertakings
The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F
at the start of any delayed offering or throughout a continuous offering.
(5)
That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(6)
That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such
reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons
who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
(7)
That every prospectus (i) that is filed pursuant to paragraph (5) immediately preceding, or (ii) that purports to meet the requirements
of Section 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will
be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(8)
(i) To respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13
of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other
equally prompt means, and (ii) to arrange or provide for a facility in the United States for the purpose of responding to such requests.
The undertaking in subparagraph (i) above includes information contained in documents filed subsequent to the effective date of this
registration statement through the date of responding to the request.
(9)
To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in this registration statement when it became effective.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is therefore unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer, or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the city of Hong Kong SAR, China, on May 28, 2021.
|
|
MOXIAN
(BVI) INC
|
|
|
|
|
|
|
By:
|
/s/
Hao Qinghu
|
|
|
Name:
|
Hao
Qinghu
|
|
|
|
Chief
Executive Officer
(Principal
Executive Officer)
|
|
|
|
|
|
|
By:
|
/s/
Tan Wanhong
|
|
|
Name:
|
Tan
Wanhong
|
|
|
|
Chief
Financial Officer
(Principal
Financial Officer and Principal Accounting Officer)
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Hao Qinghu and Tan Wanhong,
and each of them acting singly, as his true and lawful attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post effective amendments)
to this registration statement, and to sign any registration statement for the same offering covered by this registration statement that
is to be effective on filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post effective
amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney in fact and agent, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorney in fact and agent, or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
|
/s/
Hao Qinghu
|
|
Chief
Executive Officer and Chairman of
|
|
May
28, 2021
|
|
Hao
Qinghu
|
|
the
Board
|
|
|
|
|
|
|
|
|
|
/s/
Tan Wanhong
|
|
Chief
Financial Officer
|
|
May
28, 2021
|
|
Wanhong
Tan
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Choong Khuat Leok
|
|
Director
|
|
May
28, 2021
|
|
Choong
Khuat Leok
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Wendy Wang Yingjie
|
|
Director
|
|
May
28, 2021
|
|
Wendy
Wang Yingjie
|
|
|
|
|
|
|
|
|
|
|
|
/s/
William Yap Guan Hong
|
|
Director
|
|
May
28, 2021
|
|
William
Yap Guan Hong
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Zhao Yahui
|
|
Director
|
|
May
28, 2021
|
|
Zhao
Yahui
|
|
|
|
|
SIGNATURE
OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant
to the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of Moxian (BVI) Inc, has
signed this registration statement in the state of Delaware, U.S., on May 28, 2021.
|
|
Authorized U.S. Representative
|
|
|
Puglisi & Associates
|
|
|
|
|
|
/s/
Donald J. Puglisi
|
|
|
Name:
|
Donald
J. Puglisi
|
|
|
Title:
|
Managing Director
|
Exhibit 2.1
Agreement
and Plan of Merger
This AGREEMENT AND PLAN OF MERGER
(hereinafter called this “Agreement”), dated as of May 28, 2021, is entered into by and between MOXIAN, INC.,
a Nevada corporation (“Moxian Nevada”) and Moxian (BVI) Inc, a business company limited by shares incorporated under
the laws of the British Virgin Islands (“BVI”) and a wholly owned subsidiary of Moxian Nevada (“Moxian BVI”).
Moxian Nevada and Moxian BVI are sometimes together referred to herein as the “Constituent Entities.”
RECITALS
WHEREAS, Moxian BVI was formed
in the BVI on May 18, 2021, as a wholly-owned subsidiary of Moxian Nevada; and
WHEREAS, the board of directors
of Moxian Nevada and the sole director of Moxian BVI deem it advisable and in the best interests of Moxian Nevada and Moxian BVI, respectively,
upon the terms and subject to the conditions herein stated, that Moxian Nevada be merged with and into Moxian BVI and that Moxian BVI
be the surviving company (the “Merger”).
NOW, THEREFORE, in consideration
of the premises and of the agreements of the parties hereto contained herein, the parties hereto agree in accordance with the applicable
provisions of the laws of the States of Nevada which permit such merger, as follows:
ARTICLE I
MERGER; EFFECTIVE TIME
1.1 The Merger. Upon the
terms and subject to the conditions set forth in this Agreement, at the Effective Time (as defined below), Moxian Nevada shall be merged
with and into Moxian BVI, whereupon the separate existence of Moxian Nevada shall cease and Moxian BVI shall continue as the surviving
entity.
1.2 Effective Time. The
Merger shall become effective on 4:30 p.m. ET, __, 2021 or such other time that the parties hereto shall have agreed upon and designated
in a certificate of ownership and merger (the “Articles of Merger”) to be filed with the Secretary of State of the
State of Nevada and the filing of Articles of Merger with the Secretary of State of the State of Nevada, being not later than 90 days
after the time and date that this Agreement is registered with the British Virgin Islands Registrar of Companies (the “Effective
Time”).
ARTICLE II
SURVIVING CORPORATION
2.1 Surviving Corporation.
The name of the Surviving Corporation shall be “Moxian (BVI) Inc”, a British Virgin Islands business company limited by shares,
the registered office of which is at Floor 4, Banco Popular Building, Tortola, British Virgin Islands (sometimes hereinafter referred
to as the “Surviving Corporation”).
ARTICLE III
TERMS AND CONDITIONS OF THE MERGER
3.1 Memorandum of Association.
The Memorandum of Association of Moxian BVI in effect at the Effective Time shall be the governing documents and Memorandum of Association
of the Surviving Corporation, and shall continue in full force and effect until amended and changed in accordance with the provisions
provided therein or the applicable provisions of BVI Business Companies Act, 2004, as amended (the “BVI Companies Law”).
3.2 Articles of Association.
The Articles of Association of Moxian BVI in effect at the Effective Time shall be the bylaws and Articles of Association of the Surviving
Corporation, and shall continue in full force and effect until amended and changed in accordance with the provisions provided therein
or the applicable provisions of the BVI Companies Laws.
3.3 Directors. At the
Effective Time the directors of Moxian BVI immediately prior to the Merger shall continue to be the directors of the Surviving Corporation,
and all such directors shall hold office from the Effective Time until their respective successors have been duly appointed in the manner
provided in the memorandum and articles of association of Moxian BVI or in the BVI Companies Law, or until their earlier death, resignation
or removal. Consequently, the names and addresses of the directors of Moxian BVI, as the surviving company are and shall be:
Room 911, 9/F Tower 2, Silvercord
30 Canton Road
Hong Kong SAR, China
|
|
(b)
|
Choong Khuat Leok
|
|
|
|
Room 911, 9/F Tower 2, Silvercord
30 Canton Road
Hong Kong SAR, China
|
|
|
(c)
|
Wendy Wang Yingjie
Room 911, 9/F Tower 2, Silvercord
30 Canton Road
Hong Kong SAR, China
|
|
|
(d)
|
William Yap Guan Hong
Room 911, 9/F Tower 2, Silvercord
30 Canton Road
Hong Kong SAR, China
|
|
|
(e)
|
Zhao Yahui
Room 911, 9/F Tower 2, Silvercord
30 Canton Road
Hong Kong SAR, China
|
3.4 Officers. At the Effective
Time the officers of Moxian BVI immediately prior to the Merger shall continue to be the officers of the Surviving Corporation, and all
such officers shall hold office from the Effective Time until their respective successors have been duly appointed in the manner provided
in the memorandum and articles of association of Moxian BVI or in the BVI Companies Law, or until their earlier death, resignation or
removal.
3.5 Submission to Stockholder/Shareholder
Vote. This Agreement shall be submitted to a vote of the stockholders/shareholders (as the case may be) of the Constituent Entities,
respectively, as provided by applicable law, and shall take effect, and be deemed to be the Plan of Merger of the Constituent Entities,
upon the approval or adoption thereof by such stockholders/shareholders in accordance with the requirements of the laws of the State of
Nevada and British Virgin Islands, respectively.
3.6 Filing of the Articles
of Merger in the State of Nevada. As soon as practicable after the requisite stockholder approvals referenced in Section 3.5 hereof,
Moxian Nevada shall execute and deliver the Articles of Merger for filing and recording with the Secretary of State of the State of Nevada
in accordance with the Nevada Revised Statutes, as amended.
3.7 Registration of the Plan
of Merger in the British Virgin Islands. As soon as practicable after the requisite shareholder approvals referenced in Section 3.5
hereof, and forthwith after the consummation of the transactions contemplated by this Agreement, Moxian BVI will cause this Agreement
as the Plan of Merger to be registered with the British Virgin Islands Registrar of Corporate Affairs in accordance with the BVI Companies
Law.
ARTICLE IV
EFFECT OF MERGER
4.1 Effect of Merger on Constituent
Entities. The Merger shall have the effect set forth in Section 174 of the BVI Companies Law. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, Moxian Nevada shall merge with and into Moxian BVI, with Moxian BVI being the Surviving
Corporation, and the existence of Moxian Nevada shall cease except to the extent provided by the laws of the State of Nevada. All the
rights, privileges, immunities and franchises, of both a public and private nature, of each of the Constituent Entities; and all property,
real, personal and mixed, and all debts due on whatever account, including subscriptions to shares, and all other choses in action, and
all and every other interest of, or belonging to, or due to each of the Constituent Entities, shall immediately vest in Moxian BVI, without
further act or deed; and the title to all real estate, or any interest therein, vested in either of the Constituent Entities shall not
revert or be in any way impaired by reason of the Merger. Moxian BVI shall thenceforth be responsible and liable for all of the liabilities
and obligations of each of the Constituent Entities and any existing claim, action or proceeding pending by or against either of the Constituent
Entities may be prosecuted to judgment as if the Merger had not occurred, or the Surviving Entity may be substituted in such claim, action
or proceeding, and neither the rights of creditors nor any liens upon the property of either of the Constituent Entities shall be impaired
by the Merger.
4.2 Effect of Merger on Share
Capital. At the Effective Time, as a result of the Merger and without any further action on the part of the Constituent Entities or
their stockholders/shareholders (as the case may be):
(a) each share of the common
stock of nominal or par value of US$0.001 each of Moxian Nevada issued and outstanding immediately prior thereto shall be converted into
one fully paid and nonassessable ordinary share of nominal or par value of US$0.001 each in the share of Moxian BVI with substantially
the same rights, powers and privileges set forth in the Memorandum and Articles of Association as the shares of the common stock of Moxian
Nevada so converted, and all shares of such common stock of Moxian Nevada shall be cancelled and retired and shall cease to exist;
(b) all outstanding and unexercised
portions of each option, warrant and security exercisable or convertible by its terms into the common stock of Moxian Nevada (including
convertible promissory notes) if any, whether vested or unvested, which is outstanding immediately prior to the Effective Time (collectively,
the “Company Convertible Securities”) shall be assumed by Moxian BVI and shall be deemed to constitute an option, warrant
or convertible security, as the case may be, to acquire the same number of ordinary shares of nominal or par value of US$0.001 each in
Moxian BVI as the holder of such Company Convertible Securities would have been entitled to receive had such holder exercised or converted
such Company Convertible Securities in full immediately prior to the Effective Time (not taking into account whether such Company Convertible
Securities was in fact exercisable or convertible at such time), at the same exercise price per share, and shall, to the extent permitted
by law and otherwise reasonably practicable, have the same term, exercisability, vesting schedule, status and all other material terms
and conditions; and Moxian BVI shall take all steps to ensure that a sufficient number of ordinary shares is reserved for the exercise
of such Company Convertible Securities; and
(c) immediately upon the Effective
Time, the single ordinary share of Moxian BVI issued and outstanding and registered in the name of Moxian Nevada shall be surrendered
by Moxian Nevada for no consideration upon which Moxian Nevada shall cease to be entitled to any rights in respect of such share and shall
be removed from the register of members of Moxian BVI with respect to such share and the surrendered share shall be cancelled.
4.3 Certificates. At
and after the Effective Time, all of the outstanding certificates that immediately prior thereto represented shares of the common
stock of Moxian Nevada and options, warrants or other securities of Moxian Nevada, shall be deemed to represent the respective
ordinary shares of Moxian BVI and options, warrants or other securities of Moxian BVI, as the case may be, into which the shares
represented by such certificates have been converted as herein provided and shall be so registered on the books and records of
Moxian BVI or its transfer agent. The registered owner of any shares in Moxian BVI shall be entitled to exercise any
voting and other rights with respect to, and to receive any dividends and other distributions upon, the shares of the common stock
of Moxian Nevada and options, warrants or other securities of Moxian BVI, as the case may be, evidenced by such outstanding
certificate, as above provided.
ARTICLE V
CONDITIONS PRECEDENT
The
respective obligations of each party to effect the Merger are subject to the satisfaction or waiver of the following conditions:
5.1 Stockholder Approval.
This Agreement shall have been adopted and approved by the affirmative vote of holders of a majority of the issued and outstanding shares
of Moxian Nevada common stock entitled to vote thereon at the record date for such actions as set by the board of directors of Moxian
Nevada.
5.2 No Prohibition. None
of the parties hereto shall be subject to any decree, order or injunction of any court of competent jurisdiction, whether in the U.S.,
the British Virgin Islands or any other country, that prohibits the consummation of the Merger.
5.3 Consents and Authorizations.
Other than the filing of the Articles of Merger provided for under Section 1.2, all material consents and authorizations of, filings or
registrations with, and notices to, any governmental or regulatory authority required of Moxian Nevada, Moxian BVI or any of their respective
subsidiaries to consummate the Merger and the other transactions contemplated hereby, including, without limitation, any filings required
under (i) applicable U.S. state securities and “Blue Sky” laws and (ii) applicable British Virgin Islands securities and company
laws, shall have been obtained or made.
5.6 Representations and Warranties.
The representations and warranties of the parties set forth herein shall be true and correct in all material respects, and the covenants
of the parties set forth herein (other than those to be performed after the Effective Time) shall have been performed in all material
respects.
ARTICLE VI
MISCELLANEOUS AND GENERAL
6.1 Further Assurances.
From time to time, as and when required by Moxian BVI or by its successors or assigns, there shall be executed and delivered on behalf
of Moxian Nevada such deeds, assignments and other instruments, and there shall be taken or caused to be taken by it all such further
action as shall be appropriate or advisable or necessary in order to vest, perfect or confirm, of record or otherwise, in Moxian BVI,
the title to and possession of all property, interests, assets, rights, privileges, immunities, powers, franchises and authority of Moxian
Nevada, and otherwise to carry out the purposes of this Agreement. The officers and directors of Moxian BVI are fully authorized in the
name of and on behalf of Moxian Nevada, or otherwise, to take any and all such actions and to execute and deliver any and all such deeds
and other instruments as may be necessary or appropriate to accomplish the foregoing. Further, as soon as practicable after the Effective
Time Moxian Nevada shall, and (to the extent that it is within its powers to do so), deliver or procure that any other person shall deliver
without delay to Moxian BVI at its registered office, all records, correspondence, documents, files, memoranda and other papers relating
to Moxian Nevada required to be kept in the British Virgin Islands.
6.2 Termination. Anything
herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and the Merger may be abandoned, at any time prior
to the Effective Time, whether before or after approval of this Agreement by the stockholders of Moxian Nevada, if the board of directors
of Moxian Nevada determines for any reason, in its sole judgment and discretion, that the consummation of the Merger would be inadvisable
or not in the best interests of Moxian Nevada and its stockholders. In the event of the termination and abandonment of this Agreement,
this Agreement shall become null and void and have no effect, without any liability on the part of either Moxian Nevada or Moxian BVI,
or any of their respective stockholders/shareholders, directors or officers.
6.3 Modification or Amendment.
Subject to the provisions of applicable law, at any time prior to the Effective Time, the board of directors of the Constituent Entities
may amend, modify or supplement this Agreement, notwithstanding approval of this Agreement by the stockholders; provided, however, that
an amendment made subsequent to the approval of this Agreement by the stockholders shall not (a) alter or change the amount or kind of
shares and/or rights to be received in exchange for or on conversion of all or any of the shares or any class or series thereof of such
corporation, (b) alter or change any provision of the Memorandum and Articles of Association of Moxian BVI to be effected by the Merger,
or (c) alter or change any of the terms or conditions of this Agreement if such alteration or change would adversely affect the holders
of any class or series of capital stock of any of the parties hereto.
6.4 Tax-Free Reorganization.
The Merger is intended to be a tax-free plan or reorganization within the meaning of Section 368(a)(1)(F) of the Internal Revenue Code
of 1986, as amended.
6.5 GOVERNING LAW. THIS
AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEVADA WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
6.6 Entire Agreement.
This Agreement constitutes the entire agreement and supersedes all other prior agreements, understandings, representations and warranties,
both written and oral, among the parties, with respect to the subject matter hereof.
6.7 No Third Party Beneficiaries.
This Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
6.8 Severability. The
provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity
or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or any
circumstance, is determined by any court or other authority of competent jurisdiction to be invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose
of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons
or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
6.9 Headings. The headings
herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect
any of the provisions hereof.
6.10 Counterparts. In
order to facilitate the filing and recording of this Agreement, it may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Agreement
and Plan of Merger has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written
above.
|
MOXIAN, INC. a Nevada corporation
|
|
|
|
|
|
|
By:
|
/s/ Tan Wanhong
|
|
|
Name:
|
Tan Wanhong
|
|
|
Title:
|
Chief Financial Officer and Secretary
|
|
|
|
|
|
|
|
|
|
|
Moxian, Inc. (BVI) a British Virgin Islands Company
|
|
|
|
|
|
|
By:
|
/s/ Tan Wanhong
|
|
|
Name:
|
Tan Wanhong
|
|
|
Title:
|
Director
|
|
Annex 1
Form of BVI Plan of Merger
and Articles of Merger
Annex 2
Form of Amended and Restated
Memorandum of Association
and Articles of Association
of Moxian (BVI) Inc
Exhibit
10.1
MOXIAN
(BVI) INC
INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (“Agreement”) is entered into as of ________ by and between Moxian (BVI) Inc, a British
Virgin Islands company (the “Company”), and _________ (“Indemnitee”).
RECITALS
A.
The Company and Indemnitee recognize the continued difficulty in obtaining liability insurance for its directors, officers, employees,
agents and fiduciaries, the significant increases in the cost of such insurance and the general reductions in the coverage of such insurance.
B.
The Company and Indemnitee further recognize the substantial increase in corporate litigation in general, subjecting directors, officers,
employees, agents and fiduciaries to expensive litigation risks at the same time as the availability and coverage of liability insurance
has been severely limited.
C.
Indemnitee does not regard the current protection available as adequate under the present circumstances, and Indemnitee and other directors,
officers, employees, agents and fiduciaries of the Company may not be willing to serve or continue to serve in such capacities without
additional protection.
D.
The Company desires to attract and retain the services of highly qualified individuals, such as Indemnitee, to serve the Company and,
in part, in order to induce Indemnitee to continue to provide services to the Company, wishes to provide for the indemnification and
advancing of expenses to Indemnitee to the maximum extent permitted by law.
E.
In view of the considerations set forth above, the Company desires that Indemnitee be indemnified by the Company as set forth herein.
NOW,
THEREFORE, the Company and Indemnitee hereby agree as follows:
1.
Indemnification.
(a)
General Right to Indemnification. The Company shall indemnify Indemnitee to the fullest extent permitted by law if Indemnitee
was or is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant
in, any threatened, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, or any hearing, inquiry
or investigation that Indemnitee in good faith believes might lead to the institution of any such action, suit, proceeding or alternative
dispute resolution mechanism, whether civil, criminal, administrative, investigative or other (hereinafter a “Claim”),
by reason of (or arising in whole or in part out of) any event or occurrence related to the fact that Indemnitee is or was a director,
officer, employee, agent or fiduciary of the Company, or any subsidiary of the Company, or is or was serving at the request of the Company
as a director, officer, employee, agent or fiduciary of another company, partnership, joint venture, trust or other enterprise, or by
reason of any action or inaction on the part of Indemnitee while serving in such capacity (hereinafter an “Indemnifiable Event”),
and the Indemnitee shall be indemnified and held harmless by the Company to the fullest extent permitted by law, against any and all
costs, charges, expenses, liabilities, losses, (including attorneys’ fees and expenses and all other costs, expenses and obligations
(including any travel related expenses) incurred in connection with investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or participate in, any such action, suit, proceeding, alternative dispute
resolution mechanism, hearing, inquiry or investigation), judgments, fines, penalties and amounts paid in settlement (if such settlement
is approved in advance by the Company, which approval shall not be unreasonably withheld) of such Claim and any U.S. federal, state,
local or non-U.S. taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement (collectively,
hereinafter “Expenses”), including all interest, assessments and other charges paid or payable in connection with
or in respect of such Expenses. Such indemnification shall continue as to the Indemnitee when the Indemnitee ceases to be a director,
officer, employee, agent or fiduciary of the Company or any subsidiary of the Company (or to serve another entity at the request of the
Company) and shall inure to the benefit of the Indemnitee’s heirs, personal representatives and estate. Such payment of Expenses
shall be made by the Company as soon as practicable but in any event no later than twenty days after written demand by Indemnitee therefor
is presented to the Company.
(b)
Reviewing Party. Notwithstanding the foregoing, (i) the obligations of the Company under Section 1(a) shall be subject to the
condition that the Reviewing Party (as defined in Section 9(e) hereof) shall not have determined (in a written opinion, in any case in
which the Independent Legal Counsel referred to in Section 1(c) hereof is involved) that Indemnitee would not be permitted to be indemnified
under Applicable Law (as defined in Section 9(g) hereof), and (ii) the obligation of the Company to make an advance payment of Expenses
to Indemnitee pursuant to Section 2(a) (an “Expense Advance”) shall be subject to the condition that, if, when and
to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under Applicable Law, the
Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore
paid; provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be indemnified under Applicable Law, any determination made by the Reviewing
Party that Indemnitee would not be permitted to be indemnified under Applicable Law shall not be binding and Indemnitee shall not be
required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which
all rights of appeal therefrom have been exhausted or lapsed). The Indemnitee’s obligation to reimburse the Company for any Expense
Advance shall be unsecured and no interest shall be charged thereon. If there has not been a Change in Control (as defined in Section
9(c) hereof), the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control (other
than a Change in Control which has been approved by a majority of the persons surviving as members of the Company’s Board of Directors
who comprised the Company’s Board of Directors immediately prior to such Change in Control), the Reviewing Party shall be the Independent
Legal Counsel as selected in accordance with Section 1(c) hereof. If there has been no determination by the Reviewing Party or if the
Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under Applicable
Law, Indemnitee shall have the right to commence litigation seeking an initial determination by the court or challenging any such determination
by the Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service
of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on
the Company and Indemnitee.
(c)
Change in Control. The Company agrees that if there is a Change in Control of the Company (other than a Change in Control which
has been approved by a majority of the persons surviving as members of the Company’s Board of Directors who were directors immediately
prior to such Change in Control) then, with respect to all matters thereafter arising concerning the right of Indemnitee to payments
of Expenses and Expense Advances under this Agreement or any other agreement or under the Company’s Memorandum of Association and
Articles of Association as now or hereafter in effect (the “Memorandum and Articles”), Independent Legal Counsel (as
defined in Section 9(d) hereof) shall be selected by the Indemnitee and approved by the Company (which approval shall not be unreasonably
withheld or delayed). Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether
and to what extent Indemnitee would be permitted to be indemnified under Applicable Law, and the Company agrees to abide by such opinion.
The Company agrees to pay the reasonable fees and expenses of the Independent Legal Counsel referred to above and to fully indemnify
such counsel against any and all expenses (including attorneys’ fees and expenses), claims, liabilities and damages arising out
of or relating to this Agreement or its engagement pursuant hereto.
(d)
Mandatory Payment of Expenses. Notwithstanding any other provision of this Agreement other than Section 8 hereof, to the extent
that Indemnitee has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice,
in defense of any action, suit, proceeding, inquiry, alternative dispute resolution mechanism or investigation referred to in Section
(1)(a) hereof or in the defense of any Claim, issue or matter covered by this Agreement, or in defense of any Claim, issue or matter
therein, Indemnitee shall be indemnified against all Expenses incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
2.
Expenses; Indemnification Procedure.
(a)
Advancement of Expenses. The Company shall advance all Expenses incurred by Indemnitee. The advances to be made hereunder shall
be paid by the Company to Indemnitee as soon as practicable but in any event no later than twenty days after written demand by Indemnitee
therefor to the Company.
(b)
Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition precedent to Indemnitee’s right to be indemnified under
this Agreement, give the Company notice in writing as soon as practicable of any Claim made against Indemnitee for which indemnification
will or could be sought under this Agreement, provided, however, that failure to provide such notice in accordance with
this Section 2(b) shall not affect Indemnitee’s rights to receive any Expenses or Expense Advances hereunder unless and except
to the extent that the Company did not otherwise receive notice of such Claim and such failure of Indemnitee to provide such notice results
in the forfeiture by the Company of substantial rights and defenses. In addition, Indemnitee shall give the Company such information
(in the possession of, or reasonably obtainable without material expense by, Indemnitee) and cooperation as it may reasonably require
and as shall be within Indemnitee’s reasonable power and control.
(c)
No Presumptions; Burden of Proof. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement
(whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create
a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined
that indemnification is not permitted by Applicable Law. In addition, neither the failure of the Reviewing Party to have made a determination
as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal
proceedings by Indemnitee to secure a judicial determination that Indemnitee should be indemnified under Applicable Law, shall be a defense
to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any
particular belief. In connection with any determination by the Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proof shall be on the Company to establish that Indemnitee is not so entitled.
(d)
Notice to Insurers. If, at the time of the receipt by the Company of a notice of a Claim pursuant to Section 2(b) hereof, the
Company has liability insurance in effect which may cover such Claim, the Company shall give prompt notice of the commencement of such
Claim to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary
or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such action, suit, proceeding,
inquiry or investigation in accordance with the terms of such policies, provided, however, that nothing contained in this
Section 2(d) shall excuse the Company from its obligations to pay Expenses or Expense Advances to Indemnitee as provided herein.
(e)
Selection of Counsel. In the event the Company shall be obligated hereunder to pay the Expenses of any Claim, the Company shall
be entitled to assume the defense of such Claim with counsel approved by Indemnitee, which approval shall not be unreasonably withheld,
upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any
fees of counsel subsequently incurred by Indemnitee with respect to the same Claim; provided that, (i) Indemnitee shall have the right
to employ Indemnitee’s counsel in any such Claim at Indemnitee’s expense and (ii) if (A) the employment of counsel by Indemnitee
has been previously authorized by the Company, (B) Indemnitee shall have reasonably concluded that there may be a conflict of interest
between the Company and Indemnitee in the conduct of any such defense, or (C) the Company shall not continue to retain such counsel to
defend such Claim, then the fees and expenses of Indemnitee’s counsel shall be at the expense of the Company. The Company shall
have the right to conduct such defense as it sees fit in its sole discretion, including the right to settle any claim against Indemnitee
without the consent of the Indemnitee, provided, however, that the Company shall not settle any Claim requiring the admission
of guilt or responsibility by Indemnitee without Indemnitee’s prior written consent, such consent to not be unreasonably withheld.
3.
Additional Indemnification Rights; Nonexclusivity.
(a)
Scope. The Company hereby agrees to indemnify Indemnitee to the fullest extent permitted by law, notwithstanding that such indemnification
is not specifically authorized by the other provisions of this Agreement, the Memorandum and Articles, or by statute. In the event of
any change after the date of this Agreement in any Applicable Law, statute or rule which expands the right of a British Virgin Islands
company to indemnify a member of its Board of Directors or an officer, employee, agent or fiduciary, it is the intent of the parties
hereto that Indemnitee shall enjoy by this Agreement the greater benefits afforded by such change. In the event of any change in any
Applicable Law, statute or rule which narrows the right of a British Virgin Islands company to indemnify a member of its Board of Directors
or an officer, employee, agent or fiduciary, such change, to the extent not otherwise required by such law, statute or rule to be applied
to this Agreement, shall have no effect on this Agreement or the parties’ rights and obligations hereunder except as set forth
in Section 8(a) hereof.
(b)
Nonexclusivity. The indemnification and advances provided by this Agreement shall be in addition to any rights to which Indemnitee
may be entitled under the Memorandum and Articles, any agreement, any vote of shareholders or disinterested directors, the British Virgin
Islands Companies Law, or otherwise. The indemnification provided under this Agreement shall continue as to Indemnitee for any action
Indemnitee took or did not take while serving in an indemnified capacity even though Indemnitee may have ceased to serve in such capacity.
4.
No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim
made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, the Memorandum
and Articles or otherwise) of the amounts otherwise indemnifiable hereunder.
5.
Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for
some or a portion of Expenses incurred in connection with any Claim, but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled.
6.
Mutual Acknowledgement. Both the Company and Indemnitee acknowledge that in certain instances, U.S. federal law or applicable
public policy may prohibit the Company from indemnifying its directors, officers, employees, agents or fiduciaries under this Agreement
or otherwise. Indemnitee understands and acknowledges that if the Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), the Company may be required to undertake with the Securities
and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Company’s
right under public policy to indemnify Indemnitee.
7.
.Intentionally Omitted.
8.
Exceptions. Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms
of this Agreement:
(a)
Excluded Action or Omissions. To indemnify Indemnitee for Expenses resulting from acts, omissions or transactions for which Indemnitee
is prohibited from receiving indemnification under this Agreement or Applicable Law; provided, however, that notwithstanding
any limitation set forth in this Section 8(a) regarding the Company’s obligation to provide indemnification, Indemnitee shall be
entitled under Section 2 to receive Expense Advances hereunder with respect to any such Claim unless and until a court having jurisdiction
over the Claim shall have made a final judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed)
that Indemnitee has engaged in acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under
this Agreement or Applicable Law;
(b)
Claims Initiated by Indemnitee. To indemnify or advance Expenses to Indemnitee with respect to Claims initiated or brought voluntarily
by Indemnitee and not by way of defense, counterclaim or crossclaim, except (i) with respect to actions or proceedings brought to establish
or enforce a right to indemnification under this Agreement or any other agreement or insurance policy or under the Memorandum and Articles
relating to Claims for Indemnifiable Events, (ii) in specific cases if the Board of Directors has approved the initiation or bringing
of such Claim, or (iii) as otherwise required under the British Virgin Islands Companies Law, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, advance expense payment or insurance recovery, as the case may be;
(c)
Lack of Good Faith. To indemnify Indemnitee for any expenses incurred by Indemnitee with respect to any proceeding instituted
by Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction in a final non-appealable decision determines
that each material assertion made by Indemnitee in such proceeding was not made in good faith or was frivolous; or
(d)
Claims Under Section 16(b). To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and sale
by Indemnitee of securities in violation of Section 16(b) of the Exchange Act, or any similar successor statute if the Company is subject
to the informational requirements of the Exchange Act; provided, however, that notwithstanding any limitation set forth
in this Section 8(d) regarding the Company’s obligation to provide indemnification, Indemnitee shall be entitled under Section
2 to receive Expense Advances hereunder with respect to any such Claim unless and until a court having jurisdiction over the Claim shall
have made a final judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee has
violated said statute.
9.
Construction of Certain Phrases.
(a)
For purposes of this Agreement, references to the “Company” shall include, in addition to the resulting company, any constituent
company (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, employees, agents or fiduciaries, so that if Indemnitee is or
was a director, officer, employee, agent or fiduciary of such constituent company, or is or was serving at the request of such constituent
company as a director, officer, employee, agent or fiduciary of another company, partnership, joint venture, employee benefit plan, trust
or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting
or surviving company as Indemnitee would have with respect to such constituent company if its separate existence had continued.
(b)
For purposes of this Agreement, references to “other enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on Indemnitee with respect to an employee benefit plan; and references to “serving at the
request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company which imposes
duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its
participants or its beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not
opposed to the best interests of the Company” as referred to in this Agreement.
(c)
For purposes of this Agreement a “Change in Control” shall be deemed to have occurred if, on or after the date of this
Agreement, (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a trustee
or other fiduciary holding securities under an employee benefit plan of the Company acting in such capacity or a company owned directly
or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company, becomes
the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company
representing more than 33% of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) during
any period of two consecutive years, individuals who at the beginning of such period constitute the Board of Directors of the Company
and any new director whose election by the Board of Directors or nomination for election by the Company’s shareholders was approved
by a vote of at least two thirds (2/3) of the directors then still in office who either were directors at the beginning of the period
or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii)
the shareholders of the Company approve a merger or consolidation of the Company with any other company other than a merger or consolidation
which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented
by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders
of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of (in
one transaction or a series of related transactions) all or substantially all of the Company’s assets.
(d)
For purposes of this Agreement, “Independent Legal Counsel” shall mean an attorney or firm of attorneys, selected in accordance
with the provisions of Section 1(c) hereof, who shall not have otherwise performed services for the Company or Indemnitees within the
last three years (other than with respect to matters concerning the rights of Indemnitees under this Agreement, or of other indemnitees
under similar indemnity agreements).
(e)
For purposes of this Agreement, a “Reviewing Party” shall mean any appropriate person or body consisting of a member or members
of the Company’s Board of Directors or any other person or body appointed by the Board of Directors who is not a party to the particular
Claim for which Indemnitee are seeking indemnification, or Independent Legal Counsel.
(f)
For purposes of this Agreement, “Voting Securities” shall mean any securities of the Company that vote generally in the election
of directors.
(g)
For the purposes of this Agreement, “Applicable Law” shall mean the General Corporation Law of the State of Nevada, British
Virgin Islands Companies Law or any U.S. federal or non-U.S. statute, law, rule or regulation imposed on the parties by a Nevada or British
Virgin Islands court of law.
10.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original.
11.
Binding Effect; Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of and be enforceable by
the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, and personal and legal representatives.
The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory
to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. This Agreement shall continue in effect with respect to Claims relating
to Indemnifiable Events regardless of whether Indemnitee continues to serve as a director, officer, employee, agent or fiduciary of the
Company or of any other enterprise at the Company’s request.
12.
Attorneys’ Fees. In the event that any action is instituted by Indemnitee under this Agreement or under any liability insurance
policies maintained by the Company to enforce or interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be paid
all Expenses incurred by Indemnitee with respect to such action, regardless of whether Indemnitee is ultimately successful in such action,
and shall be entitled to the advancement of Expenses with respect to such action, unless, as a part of such action, a court of competent
jurisdiction over such action in a final non-appealable decision determines that each material assertion made by Indemnitee as a basis
for such action was not made in good faith or was frivolous. In the event of an action instituted by or in the name of the Company under
this Agreement to enforce or interpret any of the terms of this Agreement, Indemnitee shall be entitled to be paid all Expenses incurred
by Indemnitee in defense of such action (including costs and expenses incurred with respect to Indemnitee’s counterclaims and cross-claims
made in such action), and shall be entitled to the advancement of Expenses with respect to such action, unless, as a part of such action,
a court having jurisdiction over such action in a final non-appealable decision determines that each of Indemnitee’s material defenses
to such action was made in bad faith or was frivolous.
13.
Notice. All notices and other communications required or permitted hereunder shall be in writing, shall be effective when given,
and shall in any event be deemed to be given (a) when delivered, if delivered personally; (b) at the earlier of its receipt or five (5)
days after the same has been deposited in a regularly maintained receptacle for the deposit of the U.S. mail, if sent by U.S. first-class
registered or certified mail within the U.S.; (c) on the next business day after deposit with an recognized courier service, if sent
by overnight courier service within the U.S. for next day delivery; (d) three (3) business days after deposit with an internationally-recognized
courier service, if sent by international overnight courier service; (e) if sent via facsimile, upon confirmation of facsimile transfer;
or (f) if sent via electronic mail, upon transmission when directed to the relevant electronic mail address, if sent during normal business
hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next business day,
and shall be addressed if to Indemnitee, at the Indemnitee’s address, facsimile number or e-mail address as set forth beneath Indemnitee’s
signature to this Agreement and if to the Company at the address of its principal corporate offices (attention: Chief Executive Officer
and Chairman of the Board of Directors) or at such other address as such party may designate by ten days’ advance written notice
to the other party hereto.
14.
Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of the State
of Nevada for all purposes in connection with any action or proceeding which arises out of or relates to this Agreement.
15.
Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest
extent possible, the provisions of this Agreement (including, without limitations, each portion of this Agreement containing any provision
held to be invalid, void or otherwise unenforceable, that is not itself invalid, void or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or unenforceable.
16.
Choice of Law. This Agreement shall be governed by and its provisions construed and enforced in accordance with the laws of the
State of Nevada, as applied to contracts between Nevada residents, entered into and to be performed entirely within the State of Nevada,
without regard to the conflict of laws principles thereof.
17.
Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee who shall execute all documents required and shall do all acts that may be necessary to secure
such rights and to enable the Company effectively to bring suit to enforce such rights.
18.
Amendment and Termination. No amendment, modification, termination or cancellation of this Agreement shall be effective unless
it is in writing signed by both the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
19.
Integration and Entire Agreement. This Agreement sets forth the entire understanding between the parties hereto and supersedes
and merges all previous written and oral negotiations, commitments, understandings and agreements relating to the subject matter hereof
between the parties hereto.
20.
No Construction as Employment Agreement. Nothing contained in this Agreement shall be construed as giving Indemnitee any right
to be retained in the employ of the Company or any of its subsidiaries.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
|
|
MOXIAN
(BVI) INC
|
|
|
a
British Virgin Islands company
|
|
|
|
|
|
|
By:
|
|
|
|
|
Hao
Qinghu
|
|
|
|
Chief Executive Officer
|
|
|
|
|
|
AGREED
TO AND ACCEPTED BY:
|
|
|
|
|
|
|
|
(Signature
of Indemnitee)
|
|
|
|
|
|
|
|
(Print
Name of Indemnitee)
|
|
|
|
|
|
|
|
Address:
|
|
|
|
|
|
|
|
Facsimile
Number:
|
|
|
|
|
|
|
|
E-mail
Address:
|
|
|
SIGNATURE
PAGE TO INDEMNIFICATION AGREEMENT
