Investor Package contains the documents listed below in connection with an offering by Moxian China, Inc., a Nevada corporation
(the “Company”), of common stock, par value $.001 per share (“Common Stock”) for gross proceeds
of up to $8,169,000 (or RMB 50,000,000) or such other amount as may be determined by the Company’s board of directors.
Agreement; Schedules & Exhibits
A Common Stock Purchase Warrant
deliver your investment amount via wire or check payable to the Company’s account as attached herein as follows:
||Moxian Technologies (Shenzhen) Co, Ltd|
signature page package containing segregated signature pages for each of the following documents: (i) the Subscription Agreement
together with the Exhibits and Schedules thereto (collectively, the “Transaction Documents”) has been provided
in a separate Adobe PDF file for your convenience. Please deliver such Transaction Documents to Ofsink, LLC, attention Gracie
Zhou via fax simultaneously with the delivery of the investment amount to the Company.
copies of executed documents should be sent to the Company’s counsel, Ofsink, LLC, attention Gracie Zhou via fax at (646)
224-9844 or via e-mail at firstname.lastname@example.org.
2313-2315 , Block B, Zhongshen Garden
South Road, Futian District, Shenzhen
Province, China 518101
Subscription Agreement (this “Agreement”) is dated as of April 24, 2015 by and between Moxian China, Inc.,
a Nevada corporation, and all predecessors thereof (the “Company”), and
the investor identified on the signature pages hereto (the “Investor”).The undersigned investorhereby irrevocably
subscribes for and agrees to purchase the number of shares (the “Shares”) of the Company’s common stock,
par value $.001 per share (“Common Stock”), set forth on the signature page hereto from Moxian China, Inc.,
a Nevada corporation (the “Company”) for the purchase price of $1.00 per share in connection with the Company’s
offering of $8,169,000 (or approximately RMB 50,000,000) (the “Investment Amount) in Common Stock together with a
warrant for no additional consideration (the “Offering”) in the form of Exhibit A hereto (the “Warrant”),
granting the Investor the right to purchase up to 32,000,000 shares of Common Stock of the Company (“Warrant Shares,”
together with the Shares and Warrant Shares, referred to as the “Securities”). The Warrants will have an initial
exercise price equal to $2.00 per share and shall be exercisable on or prior to July 31, 2015 (the “Expiration Date”).
Subscription Agreement together with the Exhibits and Schedules thereto constitutes the “Offering Documents.”
THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration
the receipt and adequacy of which are hereby acknowledged, the Company and the Investor hereby agree as follows:
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms shall have
the meanings indicated in this Section 1.1:
means any action, suit, inquiry, notice of violation, proceeding (including any partial proceeding such as a deposition) or
investigation pending or threatened in writing against or affecting the Company, any subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency, regulatory or self-regulatory authority (federal, state,
county, local or foreign), stock market, stock exchange or trading facility.
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under
common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
Day” means any day except Saturday, Sunday and any day which is a federal legal holiday or a day on which banking institutions
in the State of New York are authorized or required by law or other governmental action to close.
means the closing of the purchase and sale of the Securities pursuant to Article 2.
Date” means the Trading Day on which all of the conditions set forth in Sections 5.1 and 5.2 hereof are satisfied, or
such other date as the parties may agree.
means the Securities and Exchange Commission.
Stock” means the common stock of the Company, par value $0.001 per share, and any securities into which such common
stock may hereafter be reclassified or for which it may be exchanged as a class.
has the meaning set forth in the preamble to this Agreement.
Deliverables” has the meaning set forth in Section 2.2(a).
Materials” has the meaning set forth in Section 3.2(d).
Act” means the Securities Exchange Act of 1934, as amended.
means U.S. generally accepted accounting principles.
Amount” means shall have the definition set forth in the Recitals above.
Deliverables” has the meaning set forth in Section 2.2(b).
means any lien, charge, encumbrance, security interest, pre-emptive right, right of first refusal, right of participation
or any other restrictions of any kind.
means any loss, liability, obligation, claim, contingency, damage, cost or expense, including all judgments, amounts paid
in settlements, court costs and reasonable attorneys’ fees and costs of investigation related thereto.
Adverse Effect” means any of (i) a material and adverse effect on the legality, validity or enforceability of any Transaction
Documents, (ii) a material and adverse effect on the results of operations, assets, properties, prospects, business or condition
(financial or otherwise) of the Company, or (iii) an adverse impairment to the Company’s ability to perform on a timely
basis its obligations under any Transaction Documents; provided however, that none of the following shall be deemed in
and of themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining
whether there has been or will be, a Material Adverse Effect: (i) any change, event, state of facts or development generally affecting
the general political, economic or business conditions of the United States; (ii) any change, event, state of facts or development
generally affecting the medical device industry; (iii) any change, event, state of facts or development arising from or relating
to compliance with the terms of this Agreement; (iv) acts of war (whether or not declared), the commencement, continuation or
escalation of a war, acts of armed hostility, sabotage or terrorism or other international or national calamity or any material
worsening of such conditions; (v) changes in laws or GAAP after date hereof or interpretation thereof; or (vi) any matter
set forth in the Transaction Documents or the Schedules or Exhibits thereto.
York Courts” means the state and federal courts sitting in the City of New York, Borough of Manhattan.
Share Purchase Price” shall mean $1.00 per share.
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time
to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such rule.
Act” means the Securities Act of 1933, as amended.
shall have the meaning as set forth in the recital of this Agreement.
Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation
SHO under the Exchange Act and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps
and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or
foreign regulated brokers.
of any Person means any “significant subsidiary” as defined in Rule 1-02(w) of the Regulation S-X promulgated
by the Commission under the Exchange Act of such Person.
Day” means a day on which the principal Trading Market is open for trading.
Market” any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the OTCQB Marketplace of OTC Markets Group Inc., the NYSE MKT, the New York Stock Exchange, the Nasdaq Capital Market,
the Nasdaq Global Market or the Nasdaq Global Select Market (or any successors to any of the foregoing).
Documents” means this Agreement, the Warrant and any other documents or agreements executed in connection with the transactions
and Sale; Closing. The closing of the purchase and sale of the Securities for the Investment Amount (the “Closing”)
shall take place as soon as practicable following the satisfaction of the conditions to the Closing set forth herein (or such
later date as is mutually agreed to by the Company and the Investor) (the date of any such Closing is hereinafter referred to
as a “Closing Date”). The Closing shall take place at the offices of the Company at Room 2313-2315, Block B,
Zhongshen Garden, Caitian South Road, Futian District, Shenzhen, Guangdong Province, China 518101 on the Closing Date or at such
other location or time as the parties may agree.
Company shall deliver or cause to be delivered to the Investor the following (the “Company Deliverables”):
Agreement, duly executed by the Company; and
Warrant duly executed by the Company.
the Closing, Investor shall deliver or cause to be delivered the following to the Company (collectively, the “Investor
Agreement, duly executed by the Investor;
the first tranche between RMB20,000,000 to RMB30,000,000 on or before 30th April 2015 and the final remaining
balance to be wired on or before 20th May 2015
REPRESENTATIONS AND WARRANTIES
and Warranties of the Company. Except as set forth in the Disclosure Schedules attached hereto (the “Disclosure Schedules”),
the Company hereby represents and warrants to the Investor the following:
and Standing. The Company is duly incorporated and validly existing under the laws of the State of Nevada, and has all requisite
corporate power and authority to own or lease its properties and assets and to conduct its business as it is presently being conducted.
The Company does not own any equity interest, directly or indirectly, in any other Person or business enterprise. The Company
is in good standing in the State of Nevada and is qualified to do business and is in good standing in each jurisdiction in which
the failure to so qualify could reasonably be expected to have a Material Adverse Effect upon its assets, properties, financial
condition, results of operations or business. Except as provided in Schedule 3.1(a) attached herein, the Company does not
own or control any subsidiaries as of the date of this Agreement.
Enforcement. The Company has full corporate power and authority to execute and deliver this Agreement, and any documents and instruments
related to or contemplated by each of the Transaction Documents to which it is or will be a party and to perform its obligations
hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution and delivery by the
Company of each of the Transaction Documents and the performance by the Company of its obligations thereunder, have been duly
and validly authorized by the Board of Directors, no other corporate action on the part of the Company or its stockholders being
necessary. Each of the Transaction Documents has been or will be duly and validly executed and delivered by the Company, and constitutes,
or will constitute a legal, valid and binding obligation of the Company enforceable against the Company in accordance with their
respective terms except as enforceability may be limited by bankruptcy, insolvency and other laws of general application affecting
the enforcement of creditors’ rights and except that any granting of equitable relief is in the discretion of the court.
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company
of the transactions contemplated thereby do not and will not (i) conflict with or violate any provision of the Company’s
certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument or other understanding to which the Company is a party or by which any property or asset of
the Company is bound or affected, or (iii) result in a violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which the Company is subject (including United States federal and
state securities laws and regulations), or by which any property or asset of the Company is bound or affected; except in the case
of each of clauses (ii) and (iii), such as could not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect.
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization, approval or order of, give any
notice to, or make any filing or registration with, any federal, provincial, state, local or other governmental authority or any
other Person in connection with the execution, delivery and performance by the Company to the extent a party thereto of the Transaction
Documents, other than (i) filings required by state securities laws, (ii) the filing of a Notice of Sale of Securities on Form
D with the Commission under Regulation D of the Securities Act, (iii) filings, consents and approvals required by the rules and
regulations of the applicable Trading Market and (iv) those that have been made or obtained prior to the date of this Agreement.
of the Securities. The Securities have been duly authorized and, when issued and paid for in accordance with the Transaction Documents,
will be duly and validly issued, fully paid and non-assessable, free and clear of any and all Liens. Fot the issuance of the Securities,
the Company has reserved from its duly authorized capital stock the number shares of Common Stock representing the Securities
that are issuable pursuant to this Agreement.
The number of shares of all authorized, issued and outstanding capital stock of the Company are specified in Schedule 3.1(f).
No securities of the Company are entitled to preemptive or similar rights, and no Person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents.
Except as set forth on Schedule 3.1(f), there are no outstanding options, warrants, scrip rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exchangeable
for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock, or contracts, commitments, understandings
or arrangements by which the Company is or may become bound to issue additional shares of Common Stock, or securities or rights
convertible or exchangeable into shares of Common Stock. The issue and sale of the Securities hereunder will not, immediately
or with the passage of time, obligate the Company to issue shares of Common Stock or other securities to any Person (other than
the Investors) and will not result in a right of any holder of the Company’s securities to adjust the exercise, conversion,
exchange or reset price under such securities.
Litigation. There is no Action which (i) adversely affects or challenges the legality, validity or enforceability of any of the
Transaction Documents or the Securities or (ii) could, if there were an unfavorable decision, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect.
Investor hereby acknowledges and agrees that the Company does not make and has not made any representations or warranties with
respect to the transactions contemplated hereby other than those specifically set forth in this Section 3.1.
and Warranties of the Investors. The Investor hereby, for itself and for no other Investor, represents and warrants to the Company
Authority. The Investor is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction
of its organization with the requisite corporate or partnership power and authority to enter into and to consummate the transactions
contemplated by the applicable Transaction Documents and otherwise to carry out its obligations thereunder. The execution, delivery
and performance by the Investor of the transactions contemplated by this Agreement has been duly authorized by all necessary corporate
or, if the Investor is not a corporation, such partnership, limited liability company or other applicable like action, on the
part of such Investor. Each of this Agreement and other Transaction Documents has been duly executed by the Investor, and when
delivered by such Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of such
Investor, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’
rights and remedies or by other equitable principles of general application.
Intent. Such Investor is acquiring the Securities as principal for its own account for investment purposes only and not with a
view to or for distributing or reselling such Securities or any part thereof, without prejudice, however, to such Investor’s
right at all times to sell or otherwise dispose of all or any part of such Securities in compliance with applicable federal and
state securities laws. Subject to the immediately preceding sentence, nothing contained herein shall be deemed a representation
or warranty by such Investor to hold the Securities for any period of time. Such Investor is acquiring the Securities hereunder
in the ordinary course of its business. Such Investor does not have any agreement or understanding, directly or indirectly, with
any Person to distribute any of the Securities.
Investor agrees and acknowledges that it was not, a “U.S. Person” (as defined below) at the time the Investor was
offered the Securities and as of the date hereof:
any natural person resident in the United States;
any partnership or corporation organized or incorporated under the laws of the United States;
any estate of which any executor or administrator is a U.S. person;
any trust of which any trustee is a U.S. person;
any agency or branch of a foreign entity located in the United States;
any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. person;
any discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident of the United States; and
any partnership or corporation if (i) organized or incorporated under the laws of any foreign jurisdiction and (ii) formed
by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is
organized or incorporated, and owned, by accredited Investors (as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act) who are not natural persons, estates or trusts.
States” or “U.S.” means the United States of America, its territories and possessions, any State
of the United States, and the District of Columbia.
Investor understands that no action has been or will be taken in any jurisdiction by the Company that would permit a public offering
of the Securities in any country or jurisdiction where action for that purpose is required.
Investor (i) as of the execution date of this Agreement is not located within the United States, and (ii) is not purchasing the
Securities for the account or benefit of any U.S. Person, except in accordance with one or more available exemptions from the
registration requirements of the Securities Act or in a transaction not subject thereto.
Investor will not resell the Securitiess except in accordance with the provisions of Regulation S (Rule 901 through 905 and Preliminary
Notes thereto), pursuant to a registration statement under the Securities Act, or pursuant to an available exemption from registration;
and agrees not to engage in hedging transactions with regard to such securities unless in compliance with the Securities Act.
Investor will not engage in hedging transactions with regard to shares of the Company prior to the expiration of the distribution
compliance period specified in Category 2 or 3 (paragraph (b)(2) or (b)(3)) in Rule 903 of Regulation S, as applicable, unless
in compliance with the Securities Act; and as applicable, shall include statements to the effect that the securities have not
been registered under the Securities Act and may not be offered or sold in the United States or to U.S. persons (other than distributors)
unless the securities are registered under the Securities Act, or an exemption from the registration requirements of the Securities
Act is available.
form of “directed selling efforts” (as defined in Rule 902 of Regulation S under the Securities Act), general solicitation
or general advertising in violation of the Securities Act has been or will be used nor will any offers by means of any directed
selling efforts in the United States be made by the Investor or any of their representatives in connection with the offer and
sale of the Securities.
to Information. The Investor acknowledges that it has reviewed the disclosure materials provided by the Company and has been afforded
(i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities;
(ii) access to information about the Company and its respective financial condition, results of operations, business, properties,
management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional
information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed
investment decision with respect to the investment. Neither such inquiries nor any other investigation conducted by or on behalf
of such Investor or its representatives or counsel shall modify, amend or affect such Investor’s right to rely on the truth,
accuracy and completeness of the Disclosure Materials and the Company’s representations and warranties contained in the
Investor understands that the offering of the Securities has not been registered under the Securities Act, in reliance on an exemption
for private offerings provided pursuant to Section 4(2) of the Securities Act and that, as a result, the Securities will be “restricted
securities” as that term is defined in Rule 144 under the Securities Act. UNTIL ONE YEAR AFTER THE COMPANY FILES
“Form 10” information with the commission and the other provisins of rule 144 are satisfied, RULE 144 WILL
BE UNAVAILABLE AND THE SECURITIES MAY NOT BE SOLD OTHER THAN IN A PRIVATE TRANSACTION. Once Rule 144 is available, the Securities
must be held for the time period required by Rule 144 (or indefinitely if the Investor is deemed an “affiliate” within
the meaning of such rule) unless the Securities is subsequently registered under the Securities Act and qualified under any other
applicable securities law or exemptions from such registration and qualification are available. The Investor understands that
the Company is under no obligation to register the Securities under the Securities Act or to register or qualify the Securities
under any other applicable securities law, or to comply with any other exemption under the Securities Act or any other securities
law, and that the Investor has no right to require such registration. The Investor understands that the Company has no present
intention to register any of the Securities for re-sale by Investor. The Investor further understands that the Offering of the
Securities has not been qualified or registered under any foreign or state securities laws in reliance upon the representations
made and information furnished by the Investor herein and any other documents delivered by the Investor in connection with this
subscription; that the Offering has not been reviewed by the Commission or by any foreign or state securities authorities; that
the Investor’s rights to transfer the Securities will be restricted, which includes restrictions against transfers unless
the transfer is not in violation of the Securities Act and applicable state securities laws (including investor suitability standards);
and that the Company may in its sole discretion require the Investor to provide at Investor’s own expense an opinion of
its counsel to the effect that any proposed transfer is not in violation of the Securities Act or any state securities laws.
Investment Decision. The Investor has independently evaluated the merits of its decision to purchase the Securities pursuant to
the Transaction Documents, and such Investor confirms that it has not relied on the advice of any other Investor’s business
and/or legal counsel in making such decision. The Investor has not relied on the business or legal advice of the Company or any
of its agents, counsel or Affiliates in making its investment decision hereunder, and confirms that none of such Persons has made
any representations or warranties to such Investor in connection with the transactions contemplated by the Transaction Documents.
Activities. Neither the Investor nor its Affiliates has an open short position in the Company’s Common Stock, and the Investor
agrees that it shall not, and it will cause its Affiliates not to, engage in any Short Sales of or hedging transactions with respect
to the Company’s Common Stock.
Company acknowledges and agrees that no Investor has made or makes any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section 3.2.
AGREEMENTS OF THE PARTIES
may only be disposed of in compliance with U.S. state and federal securities laws. In connection with any transfer of the Securities
other than pursuant to an effective registration statement, to the Company, to an Affiliate of an Investor or in connection with
a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion
of counsel selected by the transferor, the form and substance of which opinion shall be reasonably satisfactory to the Company,
to the effect that such transfer does not require registration of such transferred Securities under the Securities Act.
evidencing the Securities will contain the following legend:
SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF
ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH
EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. NOTWITHSTANDING THE FOREGOING, THESE SECURITIES
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.
The Company shall not, and shall use its best efforts to ensure that no Affiliate of the Company shall, sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would
be integrated with the offer or sale of the Securities in a manner that would require the
registration under the Securities Act of the sale of the Securities to the Investors, or that
would be integrated with the offer or sale of the Securities for purposes of the rules and
regulations of any Trading Market in a manner that would require stockholder approval of the sale of the Securities
to the Investors.
of Proceeds. The Company will use the net proceeds from the sale of the Securities hereunder for working capital purposes and
such other purposes as set forth on Schedule 4.6 hereto.
Good Provision. If and only if the Investor exercises no less than 16,000,000 of the Warrant and purchases shares of Common Stock
pursuant to such exercise prior to the Expiration Date, the Investor shall be entitled to the following rights:
the event that the Company does not retain additional 25,000 paying merchants (Paying customers as defined being customers paying
$100 per month) using its online sales platform (the “Make Good Condition”) by September 30, 2016 (“Measurement
Date”), then the Company shall issue and deliver to the Investor, without additional consideration, an additional number
of shares of Common Stock, which is calculated as the following: Warrant Shares issued upon exercise of the Warrant as of the
Measurement Date, multiplied by 50% (the “Make Good Shares”).
the purpose of determining the satisfaction of Make Good Condition on the Measurement Date, the Company shall produce and provide
to the Investor a list of paying merchants, generated from its online platform no later than 15 days after the Measurement Date
(the “Make Good Notice”). If the Company satisfies the Make Good Condition on the Measurement Date, the Company
shall so state in the Make Good Notice and it shall have no further obligation to issue Make Good Shares to the Investor. If the
Company fails to satisfy the Make Good Condition, the Company shall so state in the Make Good Notice and set forth the number
of Make Good Shares to be issued to the Investor. The Company shall issue and deliver to the Investor the Make Good Shares no
later than thirty (30) days after the Measurement Date.
Representation. As long as the Investor completes the subscription of US$8,169,000 subscription under this Agreement, the Investor
shall have the right to nominate up to one members of the Board of Directors (the “Investor Nominees”). The
Investor may notify the Company of the Investor Nominees to be elected or appointed as directors of the Company immediately after
the Closing and the Board of Directors of the Company shall take such steps as may be necessary to add the Investor Nominees to
the Company’s Board of Directors. As long as the Investor subscribes no less than 16,000,000 warrant on this Agreement,
the Investor will have the right to appoint one nominee to the Board of Directors.
Representation. As long as the Investor completes the subscription of US$8,169,000 subscription under this Agreement, the Investor
shall have the right to nominate up to one members to the Company accounts department (the “Account Nominees”).
The Investor may notify the Company of the Account Nominees to be elected or appointed to the Company immediately after the Closing
and the Company shall take such steps as may be necessary to add the Account Nominees to the Company.
Version 2.0. The Company hereby covenants and agrees to use its reasonable best efforts to release the Moxian Version 2.0 Beta
App by June 30, 2015 and a full working version of Moxian 2.0 App by September 30, 2015. If the Company fails to deliver Moxian
Version 2.0 by September 30, 2015, the Company shall issue to the Investor 4,000,000 shares at no cost.
The Company hereby covenants and agrees to use its reasonable best efforts to list its Common Stock on a national stock exchange
in the U.S., including but not limited to, the NYSE MKT, the New York Stock Exchange, the Nasdaq Capital Market, the Nasdaq Global
Market or the Nasdaq Global Select Market (or any successors to any of the foregoing)(‘Exchange’), prior to June 30,
2017. If the Company fails to uplift to an Exchange by June 30, 2017, the Company shall issue to the Investor 4,000,000 shares
at no cost.
Assurances. The Company shall use its reasonable best efforts to satisfy all of the closing conditions under Section 5.1, and
will not take any action which could frustrate or delay the satisfaction of such conditions. In addition, either prior to or following
the Closing, the Company signatory hereto will perform, or cause to be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions
PRECEDENT TO CLOSING
Precedent to the Obligations of the Investors to Purchase Securities. The obligation of the Investor to acquire Securities
at the Closing is subject to the satisfaction or waiver by the Investor, at or before the Closing, of each of the following conditions:
and Warranties. The representations and warranties of the Company contained herein shall be true and correct in all material respects
as of the date when made and as of the Closing as though made on and as of such date;
The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions
required by the Transaction Documents to be performed, satisfied or complied with by it at or prior to the Closing;
Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents;
Changes. Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably could
have or result in a Material Adverse Effect or a material adverse change with respect to the Company; and
Deliverables. The Company shall have delivered the Company Deliverables in accordance with Section 2.2(a).
Precedent to the Obligations of the Company to Sell Securities. The obligation of the Company to sell Securities at the Closing
is subject to the satisfaction or waiver by the Company, at or before the Closing, of each of the following conditions:
and Warranties. The representations and warranties of the Investor contained herein shall be true and correct in all material
respects as of the date when made and as of the Closing Date as though made on and as of such date;
The Investor shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions
required by the Transaction Documents to be performed, satisfied or complied with by such Investor at or prior to the Closing;
Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents; and
Deliverables. The Investor shall have delivered the Investor Deliverables in accordance with Section 2.2(b).
Agreement. The Transaction Documents, together with the Exhibits and Schedules thereto, contain the entire understanding of the
parties with respect to the subject matter hereof and supersede all prior agreements, understandings, discussions and representations,
oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered
via facsimile (provided the sender receives a machine-generated confirmation of successful transmission) at the facsimile number
specified in this Section prior to 6:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section on
a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, or (c) upon actual receipt by
the party to whom such notice is required to be given, if sent by any means other than facsimile transmission. The address for
such notices and communications shall be as follows:
to the Company:
2313-2315, Block B, Zhongshen Garden|
South Road, Futian District, Shenzhen|
Province, China 518101|
Mr. James Mengdong Tan|
a copy to:
Park Ave, Suite 851|
York, NY 10169|
Darren Ofsink, Esq.|
to an Investor:
the address set forth under such Investor’s name on the signature pages hereof;|
such other address as may be designated in writing hereafter, in the same manner, by such Person.
Waivers; No Additional Consideration. No provision of this Agreement may be waived or amended except in a written instrument signed
by the Company and the Investor. No waiver of any default with respect to any provision, condition or requirement of this Agreement
shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right. No consideration shall be offered or paid to the Investor to amend or consent to a waiver
or modification of any provision of any Transaction Document unless the same consideration is also offered to all Investors who
then hold Securities.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party. This Agreement shall be construed
as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue
of the authorship of any provisions of this Agreement or any of the Transaction Documents.
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Investors.
The Investor may assign any or all of its rights under this Agreement to any Person to whom such Investor assigns or transfers
any Securities, provided such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions
hereof that apply to the “Investors.” Notwithstanding anything to the contrary herein, for the avoidance of doubt,
each Investor may freely transfer any Securities to any Person (including its Affiliates or any investment fund sponsored or advised
by such Investor) without the consent of any of the Company or any other Investor.
Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and
permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
Law. This Agreement shall be governed by and construed and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Agreement shall be governed by, the internal laws of the State of California,
without giving effect to any choice of law or conflict of law provision or rule (whether of the State of California or any other
jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. Each of the
parties hereto hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in New York, New
York for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. In the event that any provision of this Agreement is invalid or unenforceable
under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid
or unenforceable under any law shall not affect the validity or enforceability of any other provision of this Agreement.
The representations, warranties, agreements and covenants contained herein shall survive the Closing and the delivery of the Securities.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being
understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission,
such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed)
with the same force and effect as if such facsimile signature page were an original thereof.
If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt
to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate
such substitute provision in this Agreement.
of Securities. If any certificate or instrument evidencing any Securities is
mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon
cancellation thereof, or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or destruction and customary and reasonable indemnity, if
requested. The applicants for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs associated with the issuance of such replacement Securities. If a
replacement certificate or instrument evidencing any Securities is requested due to a
mutilation thereof, the Company may require delivery of such mutilated certificate or instrument as a condition precedent to
any issuance of a replacement.
Language and Copies of Agreement. This Agreement shall be executed in English and
Chinese in duplicate, and in case of any conflict the English version shall prevail. Each of the original English and Chinese
versions of this Agreement shall be executed in 2 duplicate copies. Each party shall hold two originals of each
OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES FOLLOW]
WITNESS WHEREOF, the parties hereto have caused this Subscription Agreement to be duly executed by their respective authorized
signatories as of date first written above.
||Moxian China, Inc.|
James Mengdong Tan|
Interim Chief Executive Officer|
WITNESS WHEREOF, the parties hereto have caused this Subscription Agreement to be duly executed by their respective authorized
signatories as the date set forth above.
a U.S. Person, Tax ID or SSN No.:__________|
not a U.S. Person, country of incorporation or citizenship:|
different from above)|
As of the
date of this Agreement herein, the Company has the following subsidiaries:
Equity Owners and Percentage
of Equity Securities Held
CN Group Limited
owned by Moxian China, Inc.|
owned by the Moxian CN Group Limited|
(Hong Kong) Limited
owned by Moxian Group Limited|
Technologies (Shenzhen) Co., Ltd.
owned by Moxian (Hong Kong) Limited|
Malaysia SDN BHD
owned by Moxian (Hong Kong) Limited|
As of the
date of this Agreement, the Company is authorized to issue a total of 500,000,000 shares of Common Stock, with 198,300,000 shares
issued and outstanding and the Company is authorized to issue 100,000,000 shares of preferred stock, par value $0.001 per share
with no share issued or outstanding.
no warrants or options or any obligation to issue the Company’s securities issued and outstanding as of the date of this
to use the estimated net proceeds of the Offering for working capital.
securities have not been registered with the united states securities and exchange commission or the securities commission of
any state pursuant to an exemption from registration under regulation d promulgated under the securities act of 1933, as amended
(the “act”). this warrant shall not constitute an offer to sell nor a solicitation of an offer to buy the securities
in any jurisdiction in which such offer or solicitation would be unlawful. the securities are “restricted” and
may not be resold or transferred except as permitted under the act pursuant to registration or exemption therefrom.
SECURITIES WERE ISSUED IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S) PURSUANT TO
REGULATION S PROMULGATED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). ACCORDINGLY,
NONE OF THE SECURITIES REPRESENTED HEREBY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT, OR ANY U.S. STATE SECURITIES LAWS, AND,
UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE UNITED STATES OR, DIRECTLY OR INDIRECTLY, TO U.S. PERSONS EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING
TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE SECURITIES ACT.
STOCK PURCHASE WARRANT
Purchase Shares of $0.001 Par Value Common Stock (“Common Stock”) of No. [W-__]
CERTIFIES that, for value received, INVESTOR (the “Purchaser” or “Holder”) is entitled,
upon the terms and subject to the conditions hereinafter set forth, at any time on or after the date hereof and on or prior to
8:00 p.m. New York City Time on July 31, 2015 (the “Termination Date”), but not thereafter, to subscribe for
and purchase from Moxian China, Inc., a Nevada corporation (the “Company”) up to 32,000,000 shares of the Company’s
common stock (“Warrant Shares”) at an initial exercise price of $2.00 per share (as adjusted from time to time
pursuant to the terms hereof, the “Exercise Price”).
Exercise Price and the number of shares for which the Warrant is exercisable shall be subject to adjustment as provided herein.
This Warrant is being issued in connection with the Subscription Agreement dated _________ (the “Subscription Agreement”),
entered into between the Company and accredited investors in connection with the Company’s offering by the Company of its
Common Stock (the “Common Stock,” and such offering, the “Offering”).
terms used herein and not otherwise defined shall have the meaning ascribed to them in the Subscription Agreement.
of Warrant. Prior to the expiration hereof and subject to compliance with applicable
laws, this Warrant and all rights hereunder are transferable, in whole or in part, at
the office or agency of the Company by the Holder hereof in person or by duly authorized
attorney, upon surrender of this Warrant together with (a) the Assignment Form
annexed hereto properly endorsed, and (b) any other documentation reasonably necessary
to satisfy the Company that such transfer is in compliance with all applicable securities
laws. The term “Holder” shall refer to the Purchaser or any subsequent
transferee of this Warrant.|
of Shares. The Company covenants that all shares of Common Stock which may be
issued upon the exercise of rights represented by this Warrant will, upon exercise of
the rights represented by this Warrant and payment of the Exercise Price as set forth
herein, be duly authorized, validly issued, fully paid and non-assessable and free from
all taxes, liens and charges in respect of the issue thereof (other than taxes in respect
of any transfer occurring contemporaneously with such issue or otherwise specified herein).|
Holder may exercise this Warrant, in whole or in part, at any time and from time to time
by delivering (which may be by facsimile) to the offices of the Company or any transfer
agent for the Common Stock this Warrant, together with a Notice of Exercise in
the form annexed hereto specifying the number of Warrant Shares with respect to which
this Warrant is being exercised, together with payment in cash to the Company of the
Exercise Price therefore.|
the event that the Warrant is not exercised in full, the number of Warrant Shares shall
be reduced by the number of such Warrant Shares for which this Warrant is exercised and/or
surrendered, and the Company, if requested by Holder and at its expense, shall within
five (5) Trading Days (as defined below) issue and deliver to the Holder a new Warrant
of like tenor in the name of the Holder or as the Holder (upon payment by Holder of any
applicable transfer taxes) may request, reflecting such adjusted Warrant Shares. Notwithstanding
anything to the contrary set forth herein, upon exercise of any portion of this Warrant
in accordance with the terms hereof, the Holder shall not be required to physically surrender
this Warrant to the Company unless such Holder is purchasing the full amount of Warrant
Shares represented by this Warrant. The Holder and the Company shall maintain records
showing the number of Warrant Shares so purchased hereunder and the dates of such purchases
or shall use such other method, reasonably satisfactory to the Holder and the Company,
so as not to require physical surrender of this Warrant upon each such exercise. The
Holder and any assignee, by acceptance of this Warrant or a new Warrant, acknowledge
and agree that, by reason of the provisions of this Section, following exercise of any
portion of this Warrant, the number of Warrant Shares which may be purchased upon exercise
of this Warrant may be less than the number of Warrant Shares set forth on the face hereof.
Certificates for shares of Common Stock purchased hereunder shall be delivered to the
Holder hereof within ten (10) Trading Days after the date on which this Warrant shall
have been exercised as aforesaid. The Holder may withdraw its Notice of Exercise at any
time if the Company fails to timely deliver the relevant certificates to the Holder as
provided in this Agreement. A Notice of Exercise shall be deemed sent on the date of
delivery if delivered before 8:00 p.m. New York Time on such date, or the day following
such date if delivered after 8:00 p.m. New York Time; provided that the Company is only
obligated to deliver Warrant Shares against delivery of the Exercise Price from the holder
hereof and, if the Holder is purchasing the full amount of Warrant Shares represented
by this Warrant, surrender of this Warrant (or appropriate affidavit and/or indemnity
in lieu thereof).|
Company’s obligations to issue and deliver Warrant Shares upon an exercise in accordance with Section 3 above are absolute
and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to
the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance
which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of Warrant Shares. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely
deliver certificates representing shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
Fractional Shares or Scrip. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant. In lieu of issuance of a fractional
share upon any exercise hereunder, the Company will either round up to nearest whole
number of shares or pay the cash value of that fractional share, which cash value shall
be calculated on the basis of the average closing price of the Common Stock during the
five (5) Trading Days immediately preceding the date of exercise.|
Taxes and Expenses. Issuance of certificates for shares of Common Stock upon
the exercise of this Warrant shall be made without charge to the Holder hereof for any
issue or transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Company, and such certificates
shall be issued in the name of the Holder of this Warrant or in such name or names as
may be directed by the Holder of this Warrant; provided, however, that in the event certificates
for shares of Common Stock are to be issued in a name other than the name of the Holder
of this Warrant, this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder hereof; and provided further,
that the Company shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issuance of any Warrant certificates or any certificates
for the Warrant Shares other than the issuance of a Warrant Certificate to the Holder
in connection with the Holder’s surrender of a Warrant Certificate upon the exercise
of all or less than all of the Warrants evidenced thereby.|
of Books. The Company will at no time close its shareholder books or records
in any manner which interferes with the timely exercise of this Warrant.|
Rights as Shareholder until Exercise. Subject to Section 13 of this Warrant and
the provisions of any other written agreement between the Company and the Purchaser,
the Purchaser shall not be entitled to vote or receive dividends or be deemed the holder
of Warrant Shares or any other securities of the Company that may at any time be issuable
on the exercise hereof for any purpose, nor shall anything contained herein be construed
to confer upon the Purchaser, as such, any of the rights of a stockholder of the Company
or any right to vote for the election of directors or upon any matter submitted to stockholders
at any meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issuance of stock, reclassification of stock, change of par
value, or change of stock to no par value, consolidation, merger, conveyance or otherwise)
or to receive notice of meetings, or to receive dividends or subscription rights or otherwise
until the Warrant shall have been exercised as provided herein. However, at the time
of the exercise of this Warrant pursuant to Section 3 hereof, the Warrant Shares so purchased
hereunder shall be deemed to be issued to such Holder as the record owner of such shares
as of the close of business on the date on which this Warrant shall have been exercised.|
and Transfer of Warrant. This Warrant may not be assigned or transfer without
the written consent with the Company.|
Theft, Destruction or Mutilation of Warrant; Exchange. The Company represents,
warrants and covenants that (a) upon receipt by the Company of evidence and/or indemnity
reasonably satisfactory to it of the loss, theft, destruction or mutilation of any Warrant
or stock certificate representing the Warrant Shares, and in case of loss, theft or destruction,
of indemnity reasonably satisfactory to it, and (b) upon surrender and cancellation of
such Warrant or stock certificate, if mutilated, the Company will make and deliver a
new Warrant or stock certificate of like tenor and dated as of such cancellation, in
lieu of this Warrant or stock certificate, without any charge therefor. This Warrant
is exchangeable at any time for an equal aggregate number of Warrants of different denominations,
as requested by the holder surrendering the same, or in such denominations as may be
requested by the Holder following determination of the Exercise Price. No service charge
will be made for such registration or transfer, exchange or reissuance.|
Sundays, Holidays, etc. If the last or appointed day for the taking of any action
or the expiration of any right required or granted herein shall be a Saturday, Sunday
or a legal holiday, then such action may be taken or such right may be exercised on the
next succeeding day not a legal holiday.|
of Certain Events. If at any time while this Warrant or any portion thereof is
outstanding and unexpired there shall be a transaction (by merger or otherwise) in which
more than 50% of the voting power of the Company is disposed of (collectively, a “Sale
or Merger Transaction”), the Holder of this Warrant shall have the right thereafter
to purchase, by exercise of this Warrant and payment of the aggregate Exercise Price
in effect immediately prior to such action, the kind and amount of shares and other securities
and property which it would have owned or have been entitled to receive after the happening
of such transaction had this Warrant been exercised immediately prior thereto, subject
to further adjustment as provided in Section 12.|
of Exercise Price and Number of Warrant Shares. The number of and kind of securities
purchasable upon exercise of this Warrant and the Exercise Price shall be subject to
adjustment from time to time as set forth in this Section 12.|
Combinations, Stock Dividends and other Issuances. If the Company shall, at any
time while this Warrant is outstanding, (i) pay a stock dividend or otherwise make a
distribution or distributions on any equity securities (including instruments or securities
convertible into or exchangeable for such equity securities) in shares of Common Stock,
(ii) subdivide outstanding shares of Common Stock into a larger number of shares, or
(iii) combine outstanding Common Stock into a smaller number of shares, then the Exercise
Price shall be multiplied by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding before such event and the denominator of which shall
be the number of shares of Common Stock outstanding after such event. Any adjustment
made pursuant to this Section 12(a) shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or distribution
and shall become effective immediately after the effective date in the case of a subdivision
or combination. The number of shares which may be purchased hereunder shall be increased
proportionately to any reduction in Exercise Price, or decreased proportionately to any
increase in Exercise Price, pursuant to this paragraph 12(a), so that after such adjustments
the aggregate Exercise Price payable hereunder for the applicable number of shares shall
be the same as the aggregate Exercise Price in effect just prior to such adjustments.|
Distributions. If at any time after the date hereof the Company distributes to
holders of its Common Stock, other than as part of its dissolution, liquidation or the
winding up of its affairs, any shares of its capital stock, any evidence of indebtedness
or any of its assets (other than Common Stock), then the number of Warrant Shares for
which this Warrant is exercisable shall be increased to equal: (i) the number of Warrant
Shares for which this Warrant is exercisable immediately prior to such event, (ii) multiplied
by a fraction, (A) the numerator of which shall be the Fair Market Value (as defined
below) per share of Common Stock on the record date for the dividend or distribution,
and (B) the denominator of which shall be the Fair Market Value price per share of Common
Stock on the record date for the dividend or distribution minus the amount allocable
to one share of Common Stock of the value (as jointly determined in good faith by the
Board of Directors of the Company and the Holder) of any and all such evidences of indebtedness,
shares of capital stock, other securities or property, so distributed. For purposes of
this Warrant, “Fair Market Value” shall equal the average closing
trading price of the Common Stock on the Principal Market for the five (5) Trading Days
preceding the date of determination or, if the Common Stock is not listed or admitted
to trading on any Principal Market, and the average price cannot be determined as contemplated
above, the Fair Market Value of the Common Stock shall be as reasonably determined in
good faith by the Company’s Board of Directors and the Holder. If the Fair Market
Value of the Common Stock cannot be determined by the Company’s Board of Directors
and the Holder after five (5) business days, such determination shall be made by a third
party appraisal firm mutually agreeable by the Board of Directors and the Holder, at
the expense of the Company (the “Independent Appraiser”). The fair
market value as determined by the Independent Appraiser shall be final. The Exercise
Price shall be reduced to equal: (i) the Exercise Price in effect immediately before
the occurrence of any event (ii) multiplied by a fraction, (A) the numerator of which
is the number of Warrant Shares for which this Warrant is exercisable immediately before
the adjustment, and (B) the denominator of which is the number of Warrant Shares for
which this Warrant is exercisable immediately after the adjustment.|
etc. If at any time after the date hereof there shall be a merger or consolidation
of the Company with or into or a transfer of all or substantially all of the assets of
the Company to another entity, then the Holder shall be entitled to receive upon or after
such transfer, merger or consolidation becoming effective, and upon payment of the Exercise
Price then in effect, the number of shares or other securities or property of the Company
or of the successor corporation resulting from such merger or consolidation, which would
have been received by the Holder for the shares of stock subject to this Warrant had
this Warrant been exercised just prior to such transfer, merger or consolidation becoming
effective or to the applicable record date thereof, as the case may be. The Company will
not merge or consolidate with or into any other corporation, or sell or otherwise transfer
its property, assets and business substantially as an entirety to another corporation,
unless the corporation resulting from such merger or consolidation (if not the Company),
or such transferee corporation, as the case may be, shall expressly assume in writing
the due and punctual performance and observance of each and every covenant and condition
of this Warrant to be performed and observed by the Company.|
etc. If at any time after the date hereof there shall be a reorganization or
reclassification of the securities as to which purchase rights under this Warrant exist
into the same or a different number of securities of any other class or classes, then
the Holder shall thereafter be entitled to receive upon exercise of this Warrant, during
the period specified herein and upon payment of the Exercise Price then in effect, the
number of shares or other securities or property resulting from such reorganization or
reclassification, which would have been received by the Holder for the shares of stock
subject to this Warrant had this Warrant at such time been exercised.|
of Adjustment. Whenever the number of Warrant Shares or number or kind of securities
or other property purchasable upon the exercise of this Warrant or the Exercise Price
is adjusted, the Company, at its expense, shall promptly mail to the Holder of this Warrant
a notice setting forth the number of Warrant Shares (and other securities or property)
purchasable upon the exercise of this Warrant and the Exercise Price of such Warrant
Shares after such adjustment and setting forth the computation of such adjustment and
a brief statement of the facts requiring such adjustment.|
Shares. The Company covenants that during the period the Warrant is outstanding
and exercisable, it will reserve and keep available from its authorized and unissued
Common Stock a sufficient number of shares to provide solely for the issuance of the
Warrant Shares upon the exercise of any and all purchase rights under this Warrant. The
Company further covenants that its issuance of this Warrant shall constitute full authority
to its officers who are charged with the duty of executing stock certificates to execute
and issue the necessary certificates for the Warrant Shares upon the exercise of the
purchase rights under this Warrant. The Company will take all such reasonable action
as may be necessary to assure that such Warrant Shares may be issued as provided herein
without violation of any applicable law, regulation, or rule of any applicable market
with Securities Laws. The Holder hereof acknowledges that the Warrant Shares
acquired upon the exercise of this Warrant, if not registered (or if no exemption from
registration exists), will have restrictions upon resale imposed by state and federal
securities laws. Each certificate representing the Warrant Shares issued to the Holder
upon exercise (if not registered, for resale or otherwise, or if no exemption from registration
exists) will bear substantially the following legend: THE SHARES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED, TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.|
of Warrant Shares. Without limiting the Purchaser’s right to transfer,
assign or otherwise convey the Warrant or Warrant Shares in compliance with all applicable
securities laws, the Holder of this Warrant, by acceptance hereof, acknowledges that
this Warrant and the Warrant Shares to be issued upon exercise hereof are being acquired
solely for the Purchaser’s own account and not as a nominee for any other party,
and that the Purchaser will not offer, sell or otherwise dispose of this Warrant or any
Warrant Shares to be issued upon exercise hereof except under circumstances that will
not result in a violation of applicable federal and state securities laws.|
Date; Choice of Law; Venue; Jurisdiction. The provisions of this Warrant shall
be construed and shall be given effect in all respects as if it had been issued and delivered
by the Company on the date hereof. This Warrant shall be binding upon any successors
or assigns of the Company. This Warrant will be construed and enforced in accordance
with and governed by the laws of the State of New York, except for matters arising under
the Act, without reference to principles of conflicts of law. Each of the parties consents
to the exclusive jurisdiction of the Federal and State Courts sitting in the County of
New York in the State of New York in connection with any dispute arising under this Warrant
and hereby waives, to the maximum extent permitted by law, any objection, including any
objection based on forumnonconveniens or venue, to the bringing of any such proceeding
in such jurisdiction.|
and Waiver. This Warrant and any provisions hereof may be changed, waived, discharged
or terminated only by an instrument in writing signed by the party against which enforcement
of the same is sought. Any amendment effected in accordance with this paragraph shall
be binding upon the Purchaser, each future holder of this Warrant and the Company. No
waivers of, or exceptions to, any term, condition or provision of this Warrant, in any
one or more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.|
| || || |
Any notice or other communication required or permitted to be given hereunder shall
be in writing by facsimile, mail or personal delivery and shall be effective upon actual
receipt of such notice. The addresses for such communications shall be to the addresses
as shown on the books of the Company or to the Company at the address set forth for Moxian
China, Inc. in the Offering Documents. A party may from time to time change the address
to which notices to it are to be delivered or mailed hereunder by notice in accordance
with the provisions of this Section 19(c).|
| || || |
Whenever possible, each provision of this Warrant shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this Warrant
is held to be invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of any other provision of this Warrant
in such jurisdiction or affect the validity, legality or enforceability of any provision
in any other jurisdiction, but this Warrant shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained herein.|
Enforcement. The Company and the Holder acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Warrant were not performed
in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to prevent
or cure breaches of the provisions of this Warrant and to enforce specifically the terms
and provisions hereof, this being in addition to any other remedy to which either of
them may be entitled by law or equity.|
This Warrant may be executed by facsimile and in any number of counterparts, and
each such counterpart hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute one agreement. Execution and delivery of this
Warrant by facsimile transmission (including delivery of documents in Adobe PDF format)
shall constitute execution and delivery of this Warrant for all purposes, with the same
force and effect as execution and delivery of an original manually signed copy hereof.|
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WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officers thereunto duly authorized.
May 15, 2015
Chief Executive Officer
undersigned hereby elects to exercise the attached Warrant for and to purchase thereunder, ________________ shares of Common Stock,
and herewith makes payment therefor of $______________.
issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned or in such other name
as is specified below:
issue a new Warrant for the unexercised portion of the attached Warrant in the name of the undersignedas is specified below: