☐ REGISTRATION
STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
☒ ANNUAL REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
☐ TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
☐ SHELL COMPANY REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Mr. Muqiao Geng
(Name, telephone,
Email and/or facsimile number and address of company contact person)
Securities registered
or to be registered pursuant to Section 12(b) of the Act:
Securities registered
or to be registered pursuant to Section 12(g) of the Act:
Securities for which
there is a reporting obligation pursuant to Section 15(d) of the Act:
Indicate the number
of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by
the annual report. 197,632,558 Ordinary Shares, including 1,685,000 Ordinary Shares represented by 1,685,000 American Depositary
Shares, and 1,000,000 Preferred Shares outstanding as of December 31, 2018.
Indicate by check
mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ☐ Yes
☒
No
If this report is
an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934. ☐ Yes
☒
No
Indicate by check
mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days.
☒
Yes ☐ No
Indicate by check
mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data
File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding
12 months (or for such shorter period that the registrant was required to submit and post such files).
☒
Yes ☐ No
Large accelerated
filer ☐ Accelerated
filer ☐ Non-accelerated
filer ☒
Indicate by check
mark which basis of accounting the registrant has used to prepare the financial statements included in this filing.
If “Other”
has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has
elected to follow. Item 17 ☐ Item 18 ☐
If this is an annual
report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ☐
Yes ☒ No
This annual report
contains forward-looking statements that involve risks and uncertainties. These statements involve known and unknown risks, uncertainties
and other factors that may cause our actual results, performance or achievements to be materially different from those expressed
or implied by the forward-looking statements. These statements are made under the “safe harbor” provisions of the
U.S. Private Securities Litigations Reform Act of 1995.
You can identify these
forward-looking statements by words or phrases such as “may,” “will,” “expect,” “anticipate,”
“aim,” “estimate,” “intend,” “plan,” “believe,” “likely to”
or other similar expressions. We have based these forward-looking statements largely on our current expectations and projections
about future events and financial trends that we believe may affect our financial condition, results of operations, business strategy
and financial needs. These forward-looking statements include, but are not limited to, statements about:
You should read this
annual report and the documents that we refer to in this annual report and have filed as exhibits to this annual report completely
and with the understanding that our actual future results may be materially different from what we expect. Other sections of this
annual report discuss factors which could adversely impact our business and financial performance. Moreover, we operate in an
evolving environment. New risk factors emerge from time to time and it is not possible for our management to predict all risk
factors, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors,
may cause actual results to differ materially from those contained in any forward-looking statements. We qualify all of our forward-looking
statements by these cautionary statements.
You should not rely
upon forward-looking statements as predictions of future events. The forward-looking statements made in this annual report relate
only to events or information as of the date on which the statements are made in this annual report. Except as required by law,
we undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information,
future events or otherwise, after the date on which the statements are made or to reflect the occurrence of unanticipated events.
PART I
ITEM 1. IDENTITY OF
DIRECTORS, SENIOR MANAGEMENT AND ADVISERS.
Not applicable.
ITEM 2. OFFER STATISTICS
AND EXPECTED TIMETABLE.
Not applicable.
ITEM 3. KEY INFORMATION.
A. SELECTED
FINANCIAL DATA.
Luokung Technology
Corp. and its consolidated subsidiaries (“Luokung Technology”, “we”, “us”, or “the Company”)
consummated an asset exchange agreement pursuant to which we exchanged our existing assets with those of C Media Limited (the
“Asset Exchange”) on August 17, 2018, and we changed our name from Kingtone Wirelessinfo Solution Holding Ltd. to
our current name on August 20, 2018.
On October 4, 2018,
in connection with the consummation of the Asset Exchange, we changed our fiscal year end from September 30 to December 31.
The selected financial data for the fiscal years ended December 31, 2018, 2017 and 2016 have been derived
from our audited consolidated financial statements. The selected consolidated financial data should be read in conjunction with
our audited financial statements and the accompanying notes and “Item 5 – Operating and Financial Review and Prospects.”
Our consolidated financial statements are prepared and presented in accordance with United States generally accepted accounting
principles, or U.S. GAAP. Our historical results do not necessarily indicate our results expected for any future periods. You should
not view our historical results as an indicator of our future performance.
SELECTED CONSOLIDATED STATEMENTS OF
OPERATIONS AND COMPREHENSIVE LOSS
DATA
(IN U.S. DOLLARS)
|
|
For the years ended December 31,
|
|
|
|
2018
|
|
|
2017
|
|
|
2016
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
21,042,363
|
|
|
$
|
26,082,417
|
|
|
$
|
5,233,145
|
|
Less: Cost of revenues
|
|
|
6,938,063
|
|
|
|
5,547,779
|
|
|
|
6,315,504
|
|
Less: Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling and marketing
|
|
|
14,695,165
|
|
|
|
23,908,733
|
|
|
|
6,209,804
|
|
General and administrative
|
|
|
6,750,417
|
|
|
|
2,451,249
|
|
|
|
2,108,854
|
|
Research and development
|
|
|
3,478,570
|
|
|
|
1,046,198
|
|
|
|
2,882,202
|
|
Total operating expenses
|
|
|
24,924,152
|
|
|
|
27,406,180
|
|
|
|
11,200,860
|
|
Loss from operations
|
|
|
(10,819,852
|
)
|
|
|
(6,871,542
|
)
|
|
|
(12,283,219
|
)
|
Total other income (expense), net
|
|
|
(1,033,675
|
)
|
|
|
61,088
|
|
|
|
(765,812
|
)
|
Loss before income taxes
|
|
|
(11,853,527)
|
|
|
|
(6,810,454
|
)
|
|
|
(13,049,031
|
)
|
Income taxes
|
|
|
(74,009
|
)
|
|
|
-
|
|
|
|
-
|
|
Net loss
|
|
$
|
(11,927,536
|
)
|
|
$
|
(6,810,454
|
)
|
|
$
|
(13,049,031
|
)
|
Other comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation adjustment
|
|
|
447,246
|
|
|
|
90,671
|
|
|
|
387,375
|
|
Total comprehensive loss
|
|
$
|
(11,480,290
|
)
|
|
$
|
(6,719,783
|
)
|
|
$
|
(12,661,656
|
)
|
Net loss per ordinary share, basic and diluted
|
|
$
|
(0.16
|
)
|
|
$
|
(6,810,454
|
)
|
|
$
|
(13,049,031
|
)
|
Weighted average number of ordinary shares outstanding, basic and diluted
|
|
|
72,919,624
|
|
|
|
1
|
|
|
|
1
|
|
SELECTED CONSOLIDATED
BALANCE SHEETS
DATA
(IN U.S. DOLLARS)
|
|
As of December 31,
|
|
|
|
2018
|
|
|
2017
|
|
Accounts receivable, net of allowance for doubtful accounts
|
|
|
22,661,594
|
|
|
|
9,729,625
|
|
Amounts due from related parties
|
|
|
4,935,698
|
|
|
|
11,760,692
|
|
Property and equipment, net
|
|
|
898,007
|
|
|
|
5,044,872
|
|
Intangible assets
|
|
|
52,763,998
|
|
|
|
1,154,197
|
|
Goodwill
|
|
|
11,728,600
|
|
|
|
7,239,936
|
|
TOTAL ASSETS
|
|
|
97,079,401
|
|
|
|
37,582,858
|
|
Accounts payable
|
|
|
758,386
|
|
|
|
2,932,158
|
|
Accrued liabilities and other payables
|
|
|
28,239,477
|
|
|
|
16,488,866
|
|
Total liabilities
|
|
|
33,978,642
|
|
|
|
25,311,113
|
|
Total Shareholders’ Equity
|
|
|
63,100,759
|
|
|
|
12,271,745
|
|
B. CAPITALIZATION
AND INDEBTEDNESS.
Not applicable.
C. REASONS FOR
THE OFFER AND USE OF PROCEEDS.
Not applicable.
D. RISK FACTORS.
An investment in our
ADSs and ordinary shares involves a high degree of risk. You should carefully consider the risks and uncertainties described below
together with all other information contained in this annual report, including the matters discussed under “Special Note
Regarding Forward-Looking Statements,” before you decide to invest in our ADSs or ordinary shares. You should pay particular
attention to the fact that we are a holding company with substantial operations in China and are subject to legal and regulatory
environments that in many respects differ from those of the United States. If any of the following risks, or any other risks and
uncertainties that are not presently foreseeable to us, actually occur, our business, financial condition, results of operations,
liquidity and our future growth prospects would be materially and adversely affected. You should also consider all other information
contained in this annual report before deciding to invest in our ADSs or ordinary shares.
Risks Related to Our Company and Our
Industry
The Company had incurred negative
cash flows from operating activities and net losses as of December 31, 2018. These matters raise substantial doubt about the Company’s
ability to continue as a going concern.
The Company’s
consolidated financial statements are prepared using generally accepted accounting principles in the United States of America
applicable to a going concern, which contemplates the realization of assets and the satisfaction of liabilities in the normal
course of business. As of and for the year ended December 31, 2018, the Company had incurred significant operating losses and
working capital deficit. The ability of the Company to continue as a going concern is dependent on the Company obtaining adequate
capital to fund operating losses until it becomes profitable. If the Company is unable to obtain adequate capital, it could be
forced to cease operations. The accompanying consolidated financial statements do not include any adjustments that might be necessary
if the Company is unable to continue as a going concern.
We may undertake acquisitions, investments,
joint ventures or other strategic alliances, which could have a material adverse effect on our ability to manage our business.
In addition, such undertakings may not be successful.
Our strategy includes
plans to grow both organically and through acquisitions, participation in joint ventures or other strategic alliances. Joint ventures
and strategic alliances may expose us to new operational, regulatory and market risks, as well as risks associated with additional
capital requirements. We may not be able, however, to identify suitable future acquisition candidates or alliance partners. Even
if we identify suitable candidates or partners, we may be unable to complete an acquisition or alliance on terms commercially
acceptable to us. If we fail to identify appropriate candidates or partners, or complete desired acquisitions, we may not be able
to implement our strategies effectively or efficiently.
In addition, our ability
to successfully integrate acquired companies and their operations may be adversely affected by several factors. These factors
include:
|
1.
|
diversion of management’s
attention;
|
|
|
|
|
2.
|
difficulties in
retaining customers of the acquired companies;
|
|
|
|
|
3.
|
difficulties in
retaining personnel of the acquired companies;
|
|
|
|
|
4.
|
entry into unfamiliar
markets;
|
|
|
|
|
5.
|
unanticipated problems
or legal liabilities; and
|
|
|
|
|
6.
|
tax and accounting
issues.
|
If we fail to integrate
acquired companies efficiently, our earnings, revenue growth and business could be negatively affected.
Due to intense competition for highly-skilled
personnel, we may fail to attract and retain enough sufficiently trained employees to support our operations; our ability to bid
for and obtain new projects may be negatively affected and our revenues could decline as a result.
The IT industry relies
on skilled employees, and our success depends to a significant extent on our ability to attract, hire, train and retain qualified
employees. There is significant competition in China for professionals with the skills necessary to develop the products and perform
the services we offer to our customers. Increased competition for these professionals, in the mobile application design area or
otherwise, could have an adverse effect on us if we experience significant increase in the attrition rate among employees with
specialized skills, which could decrease our operating efficiency and productivity and could lead to a decline in demand for our
services.
In addition, our ability
to serve existing customers and business partners and obtain new business will depend, in large part, on our ability to attract,
train and retain skilled personnel that enable us to keep pace with growing demands for spatial-temporal big-data processing and
interactive location-based services, evolving industry standards and changing customer preferences. Our failure to attract, train
and retain personnel with the qualifications necessary to fulfill the needs of our existing and future customers or to assimilate
new employees successfully could have a material adverse effect on our business, financial condition and results of operations.
Our failure to retain our key personnel on business development or find suitable replacements of the key personnel upon their
departure may lead to shrinking new implementation projects, which could materially adversely affect our business.
Our business depends substantially
on the continuing efforts of our senior executives and other key personnel, and our business may be severely disrupted if we lose
their services.
Our future success
heavily depends upon the continued services of our senior executives and other key employees, particularly since we recently appointed
a new Chairman. We are reliant on the services of Mr. Xuesong Song, our Chairman, Chief Executive Officer and member of our board
of directors. If one or more of our senior executives or key employees is unable or unwilling to continue in his or her present
position, we may not be able to replace such employee easily, or at all, we may incur additional expenses to recruit, train and
retain replacement personnel, our business may be severely disrupted, and our financial condition and results of operations may
be materially adversely affected.
Our business could suffer if our
executives and directors compete against us and our non-competition agreements with them cannot be enforced.
If any of our senior
executives or key employees joins a competitor or forms a competing company, we may lose customers, know-how and key professionals
and staff members to them. Also, if any of our business development managers who keep a close relationship with our customers
and business partners joins a competitor or forms a competing company, we may lose customers, and our revenues may be materially
adversely affected. Most of our executives have entered, or will soon enter, into employment agreements with us that contain or
will contain non-competition provisions. However, if any dispute arises between our executive officers and us, such non-competition
provisions may not be enforceable, especially in China, where all of these executive officers and key employees reside, in light
of the uncertainties with China’s legal system. See “Risk Factors — Risks Related to Doing Business in
China — Uncertainties with respect to the PRC legal system could adversely affect us.”
Our computer networks may be vulnerable
to security risks that could disrupt our services and adversely affect our results of operations.
Our computer networks
may be vulnerable to unauthorized access, computer hackers, computer viruses and other security problems caused by unauthorized
access to, or improper use of, systems by third parties or employees. A hacker who circumvents security measures could misappropriate
proprietary information or cause interruptions or malfunctions in operations. Computer attacks or disruptions may jeopardize the
security of information stored in and transmitted through computer systems and mobile devices of our customers. Actual or perceived
concerns that our systems may be vulnerable to such attacks or disruptions may deter customers from using our services. As a result,
we may be required to expend significant resources to protect against the threat of these security breaches or to alleviate problems
caused by these breaches, which could adversely affect our results of operations.
If we do not continually enhance
our solutions and service offerings, we may have difficulty in retaining existing customers and attracting new customers.
We believe that our
future success will depend, to a significant extent, upon our ability to enhance our existing technologies, applications and platform,
and to introduce new features to meet the preferences and requirements of our customers in a rapidly developing and evolving market.
Unexpected technical, operational, distribution or other problems could delay or prevent the introduction of one or more of these
products or services, or any products or services that we may plan to introduce in the future. Our present or future products
may not satisfy the evolving preferences and tastes of our customers, and these solutions and services may not achieve anticipated
market acceptance or generate incremental revenue. If we are unable to anticipate or respond adequately to the need for service
or product enhancements due to resource, technological or other constraints, our business, financial condition and results of
operations could be materially and adversely affected.
If we are unable to develop competitive
new products and service offerings our future results of operations could be adversely affected.
Our future revenue
stream depends to a large degree on our ability to utilize our technology in a way that will allow us to offer new types of products
in relation to maps and geospatial data processing, mobile applications and services to a broader customer base. We will be required
to make investments in research and development in order to continually develop new products, software applications and related
service offerings, enhance our existing products, platform, mobile applications and related service offerings and achieve market
acceptance of our mobile applications and service offerings. We may incur problems in the future in innovating and introducing
new products, mobile applications and service offerings. Our development-stage products, mobile applications may not be successfully
completed or, if developed, may not achieve significant customer acceptance. If we are unable to successfully define, develop
and introduce competitive new mobile applications, and enhance existing mobile applications, our future results of operations
would be adversely affected. The timely availability of new applications and their acceptance by customers are important to our
future success. A delay in the development of new applications could have a significant impact on its results of operations.
Changes in technology could adversely
affect our business by increasing our costs, reducing our profit margins and causing a decline in our competitiveness.
China’s spatial-temporal
big-data processing and interactive location-based services industry, in which we operate, is characterized by rapidly changing
technology, evolving industry standards, frequent introductions of new services and solutions and enhancements as well as changing
customer demands. New solutions and new technologies often render existing solutions and services obsolete, excessively costly
or otherwise unmarketable. As a result, our success depends on our ability to adapt to the latest technological progress, such
as the 5G standard and technologies, and to develop or acquire and integrate new technologies into our products, mobile applications
and related services. Advances in technology also require us to commit substantial resources to developing or acquiring and then
deploying new technologies for use in our operations. We must continuously train personnel in new technologies and in how to integrate
existing systems with these new technologies. We may not be able to adapt quickly to new technologies or commit sufficient resources
to compete successfully against existing or new competitors in bringing to market solutions and services that incorporate these
new technologies. We may incur problems in the future in innovating and introducing new mobile applications and service offerings.
Our development of new mobile applications and platform enhancements may not be successfully completed or, if developed, may not
achieve significant customer acceptance. If we fail to adapt to changes in technologies and compete successfully against established
or new competitors, our business, financial condition and results of operations could be adversely affected.
Problems with the quality or performance
of our software or other systems may cause delays in the introduction of new solutions or result in the loss of customers and
revenues, which could have a material and adverse effect on our business, financial condition and results of operations.
Our products are complex
and may contain defects, errors or bugs when first introduced to the market or to a particular customer, or as new versions are
released. Because we cannot test for all possible scenarios, our systems may contain errors that are not discovered until after
they have been installed or implemented, and we may not be able to timely correct these problems. These defects, errors or bugs
could interrupt or delay the completion of projects or sales to our customers. In addition, our reputation may be damaged and
we may fail to acquire new projects from existing customers or new customers. Errors may occur when we provide systems integration
and maintenance services. Even in cases where we have agreements with our customers that contain provisions designed to limit
our exposure to potential claims and liabilities arising from customer problems, these provisions may not effectively protect
us against such claims in all cases and in all jurisdictions. In addition, as a result of business and other considerations, we
may undertake to compensate our customers for damages arising from the use of our solutions, even if our liability is limited
by these provisions. Moreover, claims and liabilities arising from customer problems could also result in adverse publicity and
materially and adversely affect our business, results of operations and financial condition. We currently do not carry any product
or service liability insurance and any imposition of liability on us may materially and adversely affect our business and increase
our costs, resulting in reduced revenues and profitability.
Our products may contain undetected
software defects, which could negatively affect our revenues.
Our software
products are complex and may contain undetected defects. Although we test our products, it is possible that errors may be
found or occur in our new or existing products after we have delivered those products to the customers.
Defects, whether actual or perceived, could result in adverse publicity, loss of revenues, product returns, a delay in market
acceptance of our products, loss of competitive position or claims against us by customers. Any such problems could be costly
to remedy and could cause interruptions, delays, or cessation of our product sales, which could cause us to lose existing or
prospective customers and could negatively affect our results of operations.
We may be subject to infringement,
misappropriation and indemnity claims in the future, which may cause us to incur significant expenses, pay substantial damages
and be prevented from providing our services or technologies.
Our success depends,
in part, on our ability to carry out our business without infringing the intellectual property rights of third parties. Patent
and copyright law covering software-related technologies is evolving rapidly and is subject to a great deal of uncertainty. Our
self-developed or licensed technologies, processes or methods may be covered by third-party patents or copyrights, either now
existing or to be issued in the future. Any potential litigation may cause us to incur significant expenses. Third-party claims,
if successfully asserted against us may cause us to pay substantial damages, seek licenses from third parties, pay ongoing royalties,
redesign our services or technologies, or prevent us from providing services or technologies subject to these claims. Even if
we were to prevail, any litigation would likely be costly and time-consuming and divert the attention of our management and key
personnel from our business operations.
Our failure to protect our intellectual
property rights may undermine our competitive position, and subject us to costly litigation to protect our intellectual property
rights.
Any misappropriation
of our technology or the development of competitive technology could seriously harm our business. We regard a substantial portion
of our hardware and software systems as proprietary and rely on statutory copyright, trademark, patent, trade secret laws, customer
license agreements, employee and third-party non-disclosure agreements and other methods to protect our proprietary rights. Nevertheless,
these resources afford only limited protection and the actions we take to protect our intellectual property rights may not be
adequate. In particular, third parties may infringe or misappropriate our proprietary technologies or other intellectual property
rights, which could have a material adverse effect on our business, financial condition and results of operations. In addition,
intellectual property rights and confidentiality protection in China may not be as effective as in the United States, and policing
unauthorized use of proprietary technology can be difficult and expensive. Further, litigation may be necessary to enforce our
intellectual property rights, protect our trade secrets or determine the validity and scope of the proprietary rights of others.
The outcome of any such litigation may not be in our favor. Any such litigation may be costly and may divert management attention,
as well as our other resources, away from our business. An adverse determination in any such litigation will impair our intellectual
property rights and may harm our business, prospects and reputation. In addition, we have no insurance coverage against litigation
costs and would have to bear all litigation costs in excess of the amount recoverable from other parties. The occurrence of any
of the foregoing could have a material adverse effect on our business, financial condition and results of operations.
Our solutions incorporate a portion
of, and work in conjunction with, third-party hardware and software solutions. If these third-party hardware or software solutions
are not available to us at reasonable costs, or at all, our results of operations could be adversely impacted.
Although our hardware
and software systems and mobile applications primarily rely on our own core technologies, some elements of our systems incorporate
a small portion of third-party hardware and software solutions. If any third party were to discontinue making their intellectual
property available to us or our customers on a timely basis, or increase materially the cost of their licensing such intellectual
property, or if our systems or applications failed to properly function or interoperate with replacement intellectual property,
we may need to incur costs in finding replacement third-party solutions and/or redesigning our systems or applications to replace
or function with or on replacement third-party proprietary technology. Replacement technology may not be available on terms acceptable
to us or at all, and we may be unable to develop alternative solutions or redesign our systems or applications on a timely basis
or at a reasonable cost. If any of these were to occur, our results of operations could be adversely impacted.
Our ability to sell our products
is highly dependent on the quality of our service and support offerings, and our failure to offer high quality service could have
a material adverse effect on our ability to market and sell our products.
Our customers depend
upon our customer service and support staff to resolve issues relating to our products. High-quality support services are critical
for the successful marketing and sale of our products. If we fail to provide high-quality support on an ongoing basis, our customers
may react negatively and we may be materially and adversely affected in our ability to sell additional products to these customers.
This could also damage our reputation and prospects with potential customers. Our failure to maintain high-quality support services
could have a material and adverse effect on our business, results of operations and financial condition.
Weaknesses in our internal controls
over financial reporting or disclosure controls and procedures may have a material adverse effect on our business, the price of
our ordinary shares, operating results and financial condition.
We are required to
establish and maintain appropriate internal controls over financial reporting and disclosure controls and procedures. Pursuant
to Section 404 of the Sarbanes-Oxley Act of 2002 and the related rules adopted by the Securities and Exchange Commission, every
public company is required to include a management report on its internal controls over financial reporting in its annual report,
which contains management’s assessment of the effectiveness of the company’s internal controls over financial reporting. This
requirement first applied to our annual report on Form 20-F for the fiscal year ended on September 30, 2011. In connection with
our assessments of our disclosure controls and procedures and internal controls over financial reporting, management concluded
that as of December31, 2018, our disclosure controls and procedures and our internal controls over financial reporting were not
effective due to lack of U.S. generally accepted accounting principles (“U.S. GAAP”) expertise in our current accounting
team. Please refer to the discussion under Item 15, “Controls and Procedures” for further discussion of our material
weakness as of December 31, 2018. Should we be unable to remediate the material weakness promptly and effectively, such weakness
could harm our operating results, result in a material misstatement of our financial statements, cause us to fail to meet our
financial reporting obligations or prevent us from providing reliable and accurate financial reports or avoiding or detecting
fraud. This, in turn, could result in a loss of investor confidence in the accuracy and completeness of our financial reports,
which could have an adverse effect on the trading price of our ordinary shares. Any litigation or other proceeding or adverse
publicity relating to the material weaknesses could have a material adverse effect on our business and operating results.
We have very limited insurance coverage
which could expose us to significant costs and business disruption.
We do not maintain
any insurance coverage for our leased properties. Should any natural catastrophes such as earthquakes, floods, typhoons or any
acts of terrorism occur in Beijing, China, where our head office is located and most of our employees are based, or elsewhere
in China, we might suffer not only significant property damages, but also loss of revenues due to interruptions in our business
operations, which could have a material adverse effect on our business, operating results or financial condition.
The insurance industry
in China is still at an early stage of development. Insurance companies in China offer limited business insurance products, and
do not, to our knowledge, offer business liability insurance. As a result, we do not have any business liability insurance coverage
for our operations. Moreover, while business disruption insurance is available, we have determined that the risks of disruption
and cost of the insurance are such that we do not require it at this time. Any business disruption, litigation or natural disaster
might result in substantial costs and diversion of resources, particularly if it affects our technology platforms which we depend
on for delivery of our software and services, and could have a material adverse effect on our financial condition and results
of operations.
We may be liable to our customers
for damages caused by unauthorized disclosure of sensitive and confidential information, whether through our employees or otherwise.
We are typically required
to manage, utilize and store sensitive or confidential customer data in connection with the products and services we provide.
Under the terms of our customer contracts, we are required to keep such information strictly confidential. We seek to implement
specific measures to protect sensitive and confidential customer data. We require our employees to enter into non-disclosure agreements
to limit such employees’ access to, and distribution of, our customers’ sensitive and confidential information and
our own trade secrets. We can give no assurance that the steps taken by us in this regard will be adequate to protect our customers’
confidential information. If our customers’ proprietary rights are misappropriated by our employees, in violation of any
applicable confidentiality agreements or otherwise, our customers may consider us liable for that act and seek damages and compensation
from us. However, we currently do not have any insurance coverage for mismanagement or misappropriation of such information by
our employees. Any litigation with respect to unauthorized disclosure of sensitive and confidential information might result in
substantial costs and diversion of resources and management attention.
We may face intellectual property
infringement claims that could be time-consuming and costly to defend. If we fail to defend ourselves against such claims, we
may lose significant intellectual property rights and may be unable to continue providing our existing products and services.
It is critical that
we use and develop our technology and products without infringing upon the intellectual property rights of third parties, including
patents, copyrights, trade secrets and trademarks. Intellectual property litigation is expensive and time-consuming and could
divert management’s attention from our business. A successful infringement claim against us, whether with or without merit,
could, among others things, require us to pay substantial damages, develop non-infringing technology, or re-brand our name or
enter into royalty or license agreements that may not be available on acceptable terms, if at all, and cease making, licensing
or using products that have infringed a third party’s intellectual property rights. Protracted litigation could also result
in existing or potential customers deferring or limiting their purchase or use of our products until resolution of such litigation,
or could require us to indemnify our customers against infringement claims in certain instances. Also, we may be unaware of intellectual
property registrations or applications relating to our services that may give rise to potential infringement claims against us.
Parties making infringement claims may be able to obtain an injunction to prevent us from delivering our services or using technology
containing the allegedly infringing intellectual property. Any intellectual property litigation could have a material adverse
effect on our business, results of operations or financial condition.
Seasonality and fluctuations in
our customers’ spending cycle and other factors can cause our revenues and operating results to vary significantly from
quarter to quarter and from year to year.
Our revenues and operating results will vary from quarter to quarter and from year to year due to a number
of factors, many of which are outside of our control. Our new lines of business acquired upon the consummation of the asset exchange
transaction discussed below see higher customer use and activity during the Chinese New Year holiday than other times during the
year when rail travel is high, which lead to higher revenue during this period as more customers would like to place more advertising.
Historically, the products of our subsidiary Superengine Graphics Software Technology Development (Suzhou) Co., Ltd (“Superengine”)
have a pattern of decreased sales in the first fiscal quarter as a result of industry buying patterns. Due to these and other factors,
our operating results may fluctuate from quarter to quarter and from year to year. These fluctuations are likely to continue in
the future, and operating results for any period may not be indicative of our future performance in any future period.
Our corporate actions are substantially
controlled by Mr. Xuesong Song, our Chairman and Chief Executive Officer, who can cause us to take actions in ways you may not
agree with.
Mr. Xuesong Song, our Chairman
and
Chief Executive Officer, beneficially owns 19.14% of our outstanding ordinary shares and 1,000,000 preferred shares, and each preferred
share has the right to 399 votes at a meeting of the shareholders of the Company. As a result, Mr. Song has approximately 73% of
the voting rights of the shareholders of the Company. Mr. Song can exert control and substantial influence over matters such as
electing directors, amending our constitutional documents, and approving acquisitions, mergers or other business combination transactions.
This concentration of ownership and voting power may also discourage, delay or prevent a change in control of our company, which
could deprive our shareholders of an opportunity to receive a premium for their shares as part of a sale of our company and might
reduce the price of our shares. Alternatively, our controlling shareholders may cause a merger, consolidation or change of control
transaction even if it is opposed by our other shareholders, including those who purchase shares in this offering
We depend on a small number of customers
to derive a significant portion of our revenues. If we were to become dependent again upon a few customers, such dependency
could negatively impact our business, operating results and financial condition.
We derived a material portion of our revenues from a small number of customers. In the years
ended December 31, 2018, 2017 and 2016, our five largest customers accounted for 94.4%, 99.8% and 79.6% of our total sales, respectively.
As our customer base may change from year-to-year, during such years that the customer base is highly concentrated, the fluctuation
of our sales to any of such major customers could have a material adverse effect on our business, operating results and financial
condition. Moreover, our high customer base concentration may also adversely affect our ability to negotiate contract prices with
these customers, which may in turn materially and adversely affect our results of operations.
Our historical outstanding accounts
receivable have been relatively high. Inability to collect our accounts receivable on a timely basis, if at all, could materially
and adversely affect our financial condition, liquidity and results of operations.
Historically, our outstanding accounts receivable have been relatively high. As of December
31, 2018, 2017 and 2016, our outstanding accounts receivable before impairment were $25.0 million $10.4 million and $2.1 million,
respectively. Although we conduct credit evaluations of our customers, we generally do not require collateral or other security
from our customers. In addition, we have had a relatively high customer concentration. The outstanding accounts receivable balance
for our largest customer was 24.4%, 48.5% and 43.3% of our total accounts receivable balance as of December 31, 2018 2017 and 2016,
respectively. As a result, an extended delay or default in payment relating to a significant account would likely have a material
and adverse effect on the aging schedule and turnover days of our accounts receivable. Our inability to collect our accounts receivable
on a timely basis, if at all, could materially and adversely affect our financial condition, liquidity and results of operations.
Risks Related to Doing Business in
China
Adverse changes in political and
economic policies of the PRC government could have a material adverse effect on the overall economic growth of China, which could
reduce the demand for our services and materially and adversely affect our competitive position.
Substantially all
of our business operations are conducted in China. Accordingly, our business, results of operations, financial condition and prospects
are subject to a significant degree to economic, political and legal developments in China. Although the Chinese economy is no
longer a planned economy, the PRC government continues to exercise significant control over China’s economic growth through
direct allocation of resources, monetary and tax policies, and a host of other government policies such as those that encourage
or restrict investment in certain industries by foreign investors, control the exchange between RMB and foreign currencies, and
regulate the growth of the general or specific market. These government involvements have been instrumental in China’s significant
growth in the past 30 years. The reorganization of the telecommunications industry encouraged by the PRC government has directly
affected our industry and our growth prospect. In response to the recent global and Chinese economic downturn, the PRC government
has adopted policy measures aimed at stimulating the economic growth in China. If the PRC government’s current or future
policies fail to help the Chinese economy achieve further growth or if any aspect of the PRC government’s policies limits
the growth of the telecommunications industry in China or our industry or otherwise negatively affects our business, our growth
rate or strategy, our results of operations could be adversely affected as a result.
Our business benefits from certain
government tax incentives. Expiration, reduction or discontinuation of, or changes to, these incentives will increase our tax
burden and reduce our net income.
Under the PRC Enterprise
Income Tax Law passed in 2007 and the implementing rules, both of which became effective on January 1, 2008, or the New EIT Law,
a unified enterprise income tax rate of 25% and unified tax deduction standard is applied equally to both domestic-invested enterprises
and foreign-invested enterprises, or FIEs. Enterprises established prior to March 16, 2007 eligible for preferential tax treatment
in accordance with the then tax laws and administrative regulations shall gradually become subject to the New EIT Law rate over
a five-year transition period starting from the date of effectiveness of the New EIT Law. However, certain qualifying high-technology
enterprises may still benefit from a preferential tax rate of 15% if they own their core intellectual properties and they are
enterprises in certain State-supported high-tech industries to be later specified by the government. As a result, if our PRC subsidiaries
qualify as “high-technology enterprises,” they will continue to benefit from the preferential tax rate of 15%, subject
to transitional rules implemented from January 1, 2008. Our subsidiaries, Beijing Zhong Chuan Shi Xun Technology Limited and Superengine
Graphics Software Technology Development (Suzhou) Co., Ltd, are qualified as a “high-technology enterprise” until
the end of the November 2021 and October 2021, respectively, and therefore they had benefited from the preferential tax rate of
15%, subject to transitional rules implemented on January 1, 2008. Although we intend to apply for a renewal of this qualification,
if Beijing Zhong Chuan Shi Xun and Suzhou Superengine cease to qualify as a “high-technology enterprise”, or the tax
authorities change their position on our preferential tax treatments in the future, our future tax liabilities may materially
increase, which could materially and adversely affect our financial condition and results of operations.
If we were deemed a “resident
enterprise” by PRC tax authorities, we could be subject to tax on our global income at the rate of 25% under the New EIT
Law and our non-PRC shareholders could be subject to certain PRC taxes.
Under the New EIT Law and the implementing rules, both of which became effective January 1, 2008, an enterprise
established outside of the PRC with “de facto management bodies” within the PRC may be considered a PRC “resident
enterprise” and will be subject to the enterprise income tax at the rate of 25% on its global income as well as PRC enterprise
income tax reporting obligations. The implementing rules of the New EIT Law define “de facto management” as “substantial
and overall management and control over the production and operations, personnel, accounting, and properties” of the enterprise.
However, as of the date of this annual report, no final interpretations on the implementation of the “resident enterprise”
designation are available. Moreover, any such designation, when made by PRC tax authorities, will be determined based on the facts
and circumstances of individual cases. Therefore, if we were to be considered a “resident enterprise” by the PRC tax
authorities, our global income would be taxable under the New EIT Law at the rate of 25% and, to the extent we were to generate
a substantial amount of income outside of PRC in the future, we would be subject to additional taxes. In addition, the dividends
we pay to our non-PRC enterprise shareholders and gains derived by such shareholders or ADS or ordinary shareholders from the transfer
of our shares or ADSs may also be subject to PRC withholding tax at the rate up to 10%, if such income were regarded as China-sourced
income.
Our holding company structure may
limit the payment of dividends.
We have no direct
business operations, other than our ownership of our subsidiaries. While we have no current intention of paying dividends, should
we decide in the future to do so, as a holding company, our ability to pay dividends and meet other obligations depends upon the
receipt of dividends or other payments from our operating subsidiaries and other holdings and investments. Current PRC regulations
permit our PRC subsidiaries to pay dividends to us only out of their accumulated profits, if any, determined in accordance with
Chinese accounting standards and regulations. In addition, each of our subsidiaries in China is required to set aside at least
10% of its after-tax profits each year, if any, to fund a statutory reserve until such reserve reaches 50% of its registered capital.
These reserves are not distributable as cash dividends. Furthermore, if our subsidiaries in China incur debt on their own behalf
in the future, the instruments governing the debt may restrict their ability to pay dividends or make other payments to us. As
a result, there may be limitations on the ability of our PRC subsidiaries to pay dividends or make other investments or acquisitions
that could be beneficial to our business or otherwise fund and conduct our business.
In addition, under
the New EIT Law and the implementing rules that became effective on January 1, 2008, dividends generated from the business of
our PRC subsidiaries after January 1, 2008 and payable to us may be subject to a withholding tax rate of 10% if the PRC tax authorities
subsequently determine that we are a non-resident enterprise, unless there is a tax treaty with China that provides for a different
withholding arrangement.
Uncertainties with respect to the
PRC legal system could adversely affect us.
We conduct all of
our business through our subsidiaries in China. Our operations in China are governed by PRC laws and regulations. Our PRC subsidiaries
are generally subject to laws and regulations applicable to foreign investments in China and, in particular, laws and regulations
applicable to wholly foreign-owned enterprises. The PRC legal system is based on statutes. Prior court decisions may be cited
for reference but have limited precedential value.
Since 1979, PRC legislation
and regulations have significantly enhanced the protections afforded to various forms of foreign investments in China. However,
China has not developed a fully integrated legal system and recently enacted laws and regulations may not sufficiently cover all
aspects of economic activities in China. In particular, because these laws and regulations are relatively new, and because of
the limited volume of published decisions and their nonbinding nature, the interpretation and enforcement of these laws and regulations
involve uncertainties. In addition, the PRC legal system is based in part on government policies and internal rules (some of which
are not published on a timely basis or at all) that may have a retroactive effect. As a result, we may not be aware of our violation
of these policies and rules until some time after the violation. In addition, any litigation in China may be protracted and result
in substantial costs and diversion of resources and management attention.
Governmental control of currency
conversion may affect the value of your investment.
The PRC government
imposes controls on the convertibility of the RMB into foreign currencies and, in certain cases, the remittance of currency out
of China. We receive substantially all of our revenues in RMB. Under our current corporate structure, our income is primarily
derived from dividend payments from our PRC subsidiaries. Shortages in the availability of foreign currency may restrict the ability
of our PRC subsidiaries to remit sufficient foreign currency to pay dividends or other payments to us, or otherwise satisfy their
foreign currency denominated obligations. Under existing PRC foreign exchange regulations, payments of current account items,
including profit distributions, interest payments and expenditures from trade-related transactions, can be made in foreign currencies
without prior approval from SAFE by complying with certain procedural requirements. However, approval from appropriate government
authorities is required where RMB is to be converted into foreign currency and remitted out of China to pay capital expenses such
as the repayment of loans denominated in foreign currencies. The PRC government may also at its discretion restrict access in
the future to foreign currencies for current account transactions. If the foreign exchange control system prevents us from obtaining
sufficient foreign currency to satisfy our currency demands, we may not be able to pay dividends in foreign currencies to our
shareholders, including holders of our ADSs or ordinary shares.
Fluctuation in the value of the
RMB may have a material adverse effect on the value of your investment.
The value of the RMB
against the U.S. dollar and other currencies may fluctuate and is affected by, among other things, changes in political and economic
conditions. On July 21, 2005, the PRC government changed its decade-old policy of pegging the value of the RMB to the U.S. dollar.
Under the new policy, the RMB is permitted to fluctuate within a narrow and managed band against a basket of certain foreign currencies.
This change in policy has resulted in an approximate 26.8% appreciation of the RMB against the U.S. dollar between July 21, 2005
and September 30, 2015. Provisions on Administration of Foreign Exchange, as amended in August 2008, further changed China’s
exchange regime to a managed floating exchange rate regime based on market supply and demand. Since reaching a high against the
U.S. dollar in July 2008, however, the RMB has traded within a narrow band against the U.S. dollar, remaining within 1% of its
July 2008 high but never exceeding it. As a consequence, the RMB has fluctuated sharply since July 2008 against other freely-traded
currencies, in tandem with the U.S. dollar. In August 2015, the PRC Government devalued its currency by approximately 3%, representing
the largest yuan depreciation for 20 years. Concerns remain that China’s slowing economy, and in particular its exports,
will need a stimulus that can only come from further cuts in the exchange rate.
It is difficult to
predict how long the current situation may continue and when and how it may change again as the People’s Bank of China may
regularly intervene in the foreign exchange market to achieve economic policy goals. Substantially all of our revenues and costs
are denominated in the RMB, and a significant portion of our financial assets are also denominated in RMB. We principally rely
on dividends and other distributions paid to us by our subsidiaries in China. Any significant revaluation of the RMB may materially
and adversely affect our cash flows, revenues, earnings and financial position, and the value of, and any dividends payable on,
our ADSs or ordinary shares in U.S. dollars. Any fluctuations of the exchange rate between the RMB and the U.S. dollar could also
result in foreign currency translation losses for financial reporting purposes.
PRC laws and regulations governing
our businesses. If we are found to be in violation of such PRC laws and regulations, we could be subject to sanctions. In addition,
changes in such PRC laws and regulations may materially and adversely affect our business.
There are substantial
uncertainties regarding the interpretation and application of PRC laws and regulations, including, but not limited to, the laws
and regulations governing our business. These laws and regulations are relatively new and may be subject to change, and their
official interpretation and enforcement may involve substantial uncertainty. The effectiveness of newly enacted laws, regulations
or amendments may be delayed, resulting in detrimental reliance by foreign investors. New laws and regulations that affect existing
and proposed future businesses may also be applied retroactively.
The PRC government
has broad discretion in dealing with violations of laws and regulations, including levying fines, revoking business and other
licenses and requiring actions necessary for compliance. In particular, licenses and permits issued or granted to us by relevant
governmental bodies may be revoked at a later time by higher regulatory bodies. We cannot predict the effect of the interpretation
of existing or new PRC laws or regulations on our businesses. We cannot assure you that our current ownership and operating structure
would not be found in violation of any current or future PRC laws or regulations. As a result, we may be subject to sanctions,
including fines, and could be required to restructure our operations or cease to provide certain services. In addition, any litigation
in China may be protracted and result in substantial costs and diversion of resources and management attention. Any of these or
similar actions could significantly disrupt our business operations or restrict us from conducting a substantial portion of our
business operations, which could materially and adversely affect our business, financial condition and results of operations.
If we were required to obtain the
prior approval of the China Securities Regulatory Commission, or CSRC, of the listing and trading of our ADSs on the NASDAQ Capital
Market, we may face regulatory actions or other sanctions from the CSRC or other PRC regulatory agencies.
On August 8, 2006,
six PRC regulatory agencies, including the Ministry of Commerce, the State Assets Supervision and Administration Commission, the
State Administration for Taxation, the State Administration for Industry and Commerce, the CSRC and the SAFE, jointly issued the
Regulations on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors, which became effective on September 8, 2006
(the “New M&A Rules”). This regulation, among other things, includes provisions that purport to require that an
offshore special purpose vehicle formed for the purposes of overseas listing of equity interests in PRC companies and controlled
directly or indirectly by PRC companies or individuals obtain the approval of the CSRC prior to the listing and trading of such
special purpose vehicle’s securities on an overseas stock exchange. On September 21, 2006, the CSRC published on its official
website procedures regarding its approval of overseas listings by special purpose vehicles. The CSRC approval procedures require
the filing of a number of documents with the CSRC and it would take several months to complete the approval process, if practicable
at all. The application of this new PRC regulation remains unclear with no consensus currently existing among leading PRC law
firms regarding the scope of the applicability of the CSRC approval requirement.
Prior to our May 2010
initial public offering, our PRC counsel has advised us that, based on its understanding of the current PRC laws and regulations
as well as the procedures announced on September 21, 2006: (i) Softech was directly incorporated by Topsky as a foreign investment
enterprise under PRC law; therefore, there was no acquisition of the equity of a “PRC domestic company” as defined
under the New M&A Rules; and (ii) the contractual arrangements between Kingtone Information and Softech were not clearly defined
and considered as the transaction which shall be applied to the New M&A Rules. Therefore, we did not seek prior CSRC approval
for our initial public offering.
However, if the CSRC
required that we obtain its approval prior to the completion of our initial public offering and the listing of our ADSs on the
NASDAQ Capital Market, we may face regulatory actions or other sanctions from the CSRC or other PRC regulatory agencies. These
regulatory agencies may impose fines and penalties on our operations in the PRC, limit our operating privileges in the PRC, delay
or restrict the repatriation of the proceeds from our initial public offering into the PRC, or take other actions that could have
a material adverse effect on our business, financial condition, results of operations, reputation and prospects, as well as the
trading price of our shares.
Also, if the CSRC
requires that we obtain its approval, we may be unable to obtain a waiver of the CSRC approval requirements if and when procedures
are established to obtain such a waiver. Any uncertainties and/or negative publicity regarding this CSRC approval requirement
could have a material adverse effect on the trading price of our shares.
PRC regulations relating to the
establishment of offshore special purpose companies by PRC residents may subject our PRC resident shareholders to penalties and
limit our ability to inject capital into our PRC subsidiaries, limit our PRC subsidiaries’ ability to distribute profits
to us, or otherwise adversely affect us.
On October 21, 2005,
the SAFE issued the Notice on Issues Relating to the Administration of Foreign Exchange in Fund-raising and Reverse Investment
Activities of Domestic Residents Conducted via Offshore Special Purpose Companies, or Notice 75, which became effective as of
November 1, 2005. According to Notice 75, prior registration with the local SAFE branch is required for PRC residents to establish
or to control an offshore company for the purposes of financing such offshore company with assets or equity interests in an onshore
enterprise located in the PRC, or an offshore special purpose company. An amendment to registration or filing with the local SAFE
branch by such PRC resident is also required for the injection of equity interests or assets of an onshore enterprise in the offshore
special purpose company or overseas funds raised by such offshore company, or any other material change involving a change in
the capital of the offshore special purpose company. Moreover, Notice 75 applies retroactively. As a result, PRC residents who
have established or acquired control of offshore special purpose companies that have made onshore investments in the PRC in the
past are required to have completed the relevant registration procedures with the local SAFE branch by March 31, 2006. To further
clarify the implementation of Notice 75, the SAFE issued Circular 106 on May 29, 2007. Under Circular 106, PRC subsidiaries of
an offshore special purpose company are required to coordinate and supervise the filing of SAFE registrations by the offshore
holding company’s shareholders or beneficial owners who are PRC residents in a timely manner.
Some of our current
shareholders and/or beneficial owners may fall within the ambit of the SAFE notice and be required to register with the local
SAFE branch as required under the SAFE notice. If so required, and if such shareholders and/or beneficial owners fail to timely
register their SAFE registrations pursuant to the SAFE notice, or if future shareholders and/or beneficial owners of our company
who are PRC residents fail to comply with the registration procedures set forth in the SAFE notice, this may subject such shareholders,
beneficial owners and/or our PRC subsidiaries to fines and legal sanctions and may also limit our ability to contribute additional
capital into our PRC subsidiaries, limit our PRC subsidiaries’ ability to distribute dividends to our company, or otherwise
adversely affect our business.
Risks Associated with our ADSs and
Ordinary Shares
The market price of our ADSs and
Ordinary Shares have historically been highly volatile, and you may not be able to resell our ordinary shares at or above your
initial purchase price.
There may be a limited
public market for our ordinary shares and, as discussed above, our ADSs are no longer listed on any public market in the United
States or any other jurisdiction. We cannot assure you that there will be an active trading market for our ordinary shares in
the future. If our ordinary shares are accepted for listing on a public market, you may not be able to sell your ordinary shares
quickly or at the market price if trading in our ordinary shares is not active.
The trading price
of our ADSs and ordinary shares may be volatile. The price of our ADSs and ordinary shares could be subject to wide fluctuations
in response to a variety of factors, including the following:
|
1.
|
Introduction of
new products, services or technologies offered by us or our competitors;
|
|
|
|
|
2.
|
Failure to meet
or exceed revenue and financial projections we provide to the public;
|
|
|
|
|
3.
|
Actual or anticipated
variations in quarterly operating results;
|
|
|
|
|
4.
|
Failure to meet
or exceed the estimates and projections of the investment community;
|
|
|
|
|
5.
|
General market conditions
and overall fluctuations in United States equity markets;
|
|
|
|
|
6.
|
Announcements of
significant acquisitions, strategic partnerships, joint ventures or capital commitments by us or our competitors;
|
|
|
|
|
7.
|
Disputes or other
developments relating to proprietary rights, including patents, litigation matters and our ability to obtain patent protection
for our technologies;
|
|
|
|
|
8.
|
Additions or departures
of key management personnel;
|
|
|
|
|
9.
|
Issuances of debt
or equity securities;
|
|
|
|
|
10.
|
Significant lawsuits,
including patent or shareholder litigation;
|
|
|
|
|
11.
|
Changes in the market
valuations of similar companies;
|
|
|
|
|
12.
|
Sales of additional
ordinary shares or other securities by us or our shareholders in the future;
|
|
|
|
|
13.
|
Trading volume of
our ordinary shares;
|
|
|
|
|
14.
|
Fluctuations in
the exchange rate between the U.S. dollar and Renminbi;
|
|
|
|
|
15.
|
Negative market
perception and media coverage of our company or other companies in the same or similar industry with us; and
|
|
|
|
|
16.
|
Other events or
factors, many of which are beyond our control.
|
In addition, the stock
market in general, and the NASDAQ Capital Market and software products and services companies in particular, have experienced
extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of these
companies. Broad market and industry factors may negatively affect the market price of our ordinary shares, regardless of our
actual operating performance.
Our ordinary shares may be subject to the SEC’s penny stock rules which may make it difficult for
broker-dealers to complete customer transactions and trading activity in our securities.
Our ordinary shares may be deemed to be “penny stock” as that term is defined under the Securities
Exchange Act of 1934, as amended. Penny stocks generally are equity securities with a price of less than $5.00 (other
than securities registered on certain national securities exchanges or quoted on the NASDAQ system, provided that current price
and volume information with respect to transactions in such securities is provided by the exchange or system). Penny
stock rules impose additional sales practice requirements on broker-dealers who sell to persons other than established customers
and “accredited investors.” The term “accredited investor” refers generally to institutions with assets
in excess of $5,000,000 or individuals with a net worth in excess of $1,000,000 or annual income exceeding $200,000 or $300,000
jointly with their spouse in each of the prior two years.
The penny stock rules
require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from the rules, to deliver a standardized
risk disclosure document in a form prepared by the SEC, which provides information about penny stocks and the nature and level
of risks in the penny stock market. Moreover, broker-dealers are required to determine whether an investment in a penny
stock is a suitable investment for a prospective investor. A broker-dealer must receive a written agreement to the transaction
from the investor setting forth the identity and quantity of the penny stock to be purchased. These requirements may
make it more difficult for broker-dealers to effectuate customer transactions and trading activity in our securities. As a result,
the market price of our ordinary shares may be depressed, and you may find it more difficult to sell our ordinary shares.
Sales of a substantial number of
ordinary shares in the public market by our existing shareholders could cause the price of our ordinary shares to fall.
Sales of a substantial
number of our ordinary shares in the public market or the perception that these sales might occur, could depress the market price
of our ordinary shares and could impair our ability to raise capital through the sale of additional equity securities. We are unable
to predict the effect that sales may have on the prevailing market price of our ordinary shares.
Subject to certain
limitations all of our total outstanding shares are now eligible for sale. Sales of ordinary shares by these shareholders could
have a material adverse effect on the trading price of our ordinary shares.
Future sales and issuances of our
ordinary shares, or rights to purchase our ordinary shares, including pursuant to our 2010 Omnibus Incentive Plan, could result
in additional dilution of the percentage ownership of our shareholders and could cause the price of our ordinary shares to fall.
We expect that significant
additional capital will be needed in the future to continue our planned operations. To the extent we raise additional capital
by issuing equity securities, our shareholders may experience substantial dilution. We may sell ordinary shares, convertible securities
or other equity securities in one or more transactions at prices and in a manner we determine from time to time. If we sell ordinary
shares, convertible securities or other equity securities in more than one transaction, investors may be materially diluted by
subsequent sales. Such sales may also result in material dilution to our existing shareholders, and new investors could gain rights
superior to our existing shareholders.
We do not intend to pay dividends on our ordinary shares, so any returns will be limited to the value
of our ordinary shares.
We have never declared or paid any cash dividend on our ordinary shares. We currently anticipate that
we will retain future earnings for the development, operation and expansion of our business and do not anticipate declaring or
paying any cash dividends for the foreseeable future. Any return shareholders will therefore be limited to the value of their ordinary
shares.
As the rights of shareholders under
British Virgin Islands law differ from those under U.S. law, you may have fewer protections as a shareholder.
Our corporate affairs
will be governed by our memorandum of association and articles of association, the BVI Business Companies Act, 2004, or the BVI
Act, of the British Virgin Islands and the common law of the British Virgin Islands. The rights of shareholders to take legal
action against our directors, actions by minority shareholders and the fiduciary responsibilities of our directors under British
Virgin Islands law are to a large extent governed by the BVI Act and 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 under British Virgin Islands law are not as
clearly established as they would be under statutes or judicial precedents in some jurisdictions in the United States. In particular,
the British Virgin Islands has a less developed body of securities laws as compared to the United States, and some states (such
as Delaware) have more fully developed and judicially interpreted bodies of corporate law.
As a result of all
of the above, holders of our ADSs and ordinary shares may have more difficulty in protecting their interests through actions against
our management, directors or major shareholders than they would as shareholders of a U.S. company.
British Virgin Islands companies
may not be able to initiate shareholder derivative actions, thereby depriving shareholders of the ability to protect their interests.
British Virgin Islands
companies 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 a British Virgin Islands company being more limited than those of shareholders of
a company organized in the United States. Accordingly, shareholders may have fewer alternatives available to them if they believe
that corporate wrongdoing has occurred. The British Virgin Islands courts are also unlikely to recognize or enforce against us
judgments of courts in the United States based on certain liability provisions of U.S. securities law; and to impose liabilities
against us, in original actions brought in the British Virgin Islands, based on certain liability provisions of U.S. securities
laws that are penal in nature. There is no statutory recognition in the British Virgin Islands of judgments obtained in the United
States, although the courts of the British Virgin Islands will generally recognize and enforce the non-penal judgment of a foreign
court of competent jurisdiction without retrial on the merits.
The laws of the British Virgin Islands
provide little protection for minority shareholders, so minority shareholders will have little or no recourse if the shareholders
are dissatisfied with the conduct of our affairs.
Under the law of the
British Virgin Islands, there is little statutory law for the protection of minority shareholders other than the provisions of
the BVI Act dealing with shareholder remedies. The principal protection under statutory law is that shareholders may bring an
action to enforce the constituent documents of the corporation, our memorandum of association and articles of association. Shareholders
are entitled to have the affairs of the company conducted in accordance with the general law and the memorandum of association
and articles of association.
There are common law
rights for the protection of shareholders that may be invoked, largely dependent on English company law, since the common law
of the British Virgin Islands 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 company’s
constituent documents. As such, if those who control the company have persistently disregarded the requirements of company law
or the provisions of the company’s memorandum of association and articles of association, then the courts will grant relief.
Generally, the areas in which the courts will intervene are the following: (1) an act complained of which is outside the scope
of the authorized business or is illegal or not capable of ratification by the majority; (2) acts that constitute fraud on the
minority where the wrongdoers control the company; (3) acts that infringe on the personal rights of the shareholders, such as
the right to vote; and (4) where the company has not complied with provisions requiring approval of a majority of shareholders,
which are more limited than the rights afforded minority shareholders under the laws of many states in the United States.
Anti-takeover provisions in our
memorandum of association and articles of association and our right to issue preference shares could make a third-party acquisition
of us difficult.
Some provisions of
our memorandum of association and articles of association may discourage, delay or prevent a change in control of our company
or management that shareholders may consider favorable, including provisions that authorize our board of directors to issue preference
shares in one or more series and to designate the price, rights, preferences, privileges and restrictions of such preference shares.
You may not be able to participate
in rights offerings and may experience dilution of your holdings as a result.
We may from time to
time distribute rights to our shareholders, including rights to acquire our securities. However, we may not offer those rights
to ordinary shareholders unless both the rights and the underlying securities to be distributed to ordinary shareholders are registered
under the Securities Act, or the distribution of them to ordinary shareholders is exempted from registration under the Securities
Act with respect to all ordinary shareholders. We are under no obligation to file a registration statement with respect to any
such rights or underlying securities or to endeavor to cause such a registration statement to be declared effective. In addition,
we may not be able to rely on an exemption from registration under the Securities Act to distribute such rights and securities.
Accordingly, our ordinary shareholders may be unable to participate in our rights offerings and may experience dilution in their
holdings as a result.
We may be a passive foreign investment
company, of PFIC, which could lead to additional taxes for U.S. holders of our ordinary shares.
We do not expect to be, for U.S. federal income tax purposes, a passive foreign investment company, or
a PFIC, which is a foreign company for which, in any given taxable year, either at least 75% of its gross income is passive income,
or investment income in general, or at least 50% of its assets produce or are held to produce passive income, for the current taxable
year, and we expect to operate in such a manner so as not to become a PFIC for any future taxable year. However, because the determination
of PFIC status for any taxable year cannot be made until after the close of such year and requires extensive factual investigation,
including ascertaining the fair market value of our assets on a quarterly basis and determining whether each item of gross income
that we earn is passive income, we cannot assure you that we will not become a PFIC for the current taxable year or any future
taxable year. If we are or become a PFIC, a U.S. holder ordinary shares could be subject to additional U.S. federal income taxes
on gain recognized with respect to the ordinary shares and on certain distributions, plus an interest charge on certain taxes treated
as having been deferred under the PFIC rules. Non-corporate U.S. holders will not be eligible for reduced rates of taxation on
any dividends received from us if we are a PFIC in the taxable year in which such dividends are paid or in the preceding taxable
year.
If the trading price of our ordinary
shares fails to comply with the continued listing requirements of the NASDAQ Capital Market, we would face possible delisting,
which would result in a limited public market for our ordinary shares and make obtaining future debt or equity financing more
difficult for us.
Companies listed
on NASDAQ are subject to delisting for, among other things, failure to maintain a minimum closing bid price of $1.00 per
share for 30 consecutive business days. On December 19, 2011, we received a letter from NASDAQ indicating that for the last
30 consecutive business days, the closing bid price of our ADSs fell below the minimum $1.00 per share requirement pursuant
to NASDAQ Listing Rule 5550(a)(2) for continued listing on the NASDAQ Capital Market. We have regained compliance with the
minimum bid price requirement for continued listing set forth in NASDAQ Listing Rule 5550(a)(2), as its ADS with its
underlying ordinary share has achieved a closing bid price of $1.00 or greater for the 10 consecutive business days from
November 6 to November 23, 2012 by implementing a 1-for-10 combination, or reverse split of the ordinary shares effective
November 6, 2012, we cannot be sure that the price of our ordinary shares will comply with this requirement for continued
listing on the NASDAQ Capital Market in the future. If we were not able to do so, our ordinary shares would be subject to
delisting and would likely trade on the over-the-counter market. If our ordinary shares were to trade on the over-the-counter
market, selling our ordinary shares could be more difficult because smaller quantities of shares would likely be bought and
sold, transactions could be delayed, and security analysts’ coverage of us may be reduced. In addition, broker-dealers
have certain regulatory burdens imposed upon them, which may discourage broker-dealers from effecting transactions in our
ordinary shares, further limiting the liquidity of our ordinary shares. As a result, the market price of our ordinary shares
may be depressed, and you may find it more difficult to sell our ordinary shares. Such delisting from the NASDAQ Capital
Market and continued or further declines in our share price could also greatly impair our ability to raise additional
necessary capital through equity or debt financing.
ITEM 4. INFORMATION
ON THE COMPANY.
A
.
HISTORY AND DEVELOPMENT OF THE COMPANY.
Overview
We are a holding company
and conduct our operations through our wholly-owned subsidiary named LK Technology Ltd., a British Virgin Islands limited liability
company (“LK Technology”), and its wholly-owned subsidiaries, MMB Limited and its respective subsidiaries, which possess
two core brands “Luokuang” and “SuperEngine”. “Luokuang” is a mobile application to provide
Business to Customer (B2C) location-based services and “SuperEngine” provides Business to Business (B2B) and Business
to Government (B2G) services in connection with spatial-temporal big data processing. In May 2010, we consummated an initial public
offering of our American Depository Shares, or ADSs, for gross proceeds of $16 million, and our ADSs were listed on the NASDAQ
Capital Market under the ticker symbol “KONE”. On August 17, 2018, we completed the transactions contemplated by the
Asset Exchange Agreement (“AEA”) with C Media Limited (“C Media”) entered into on January 25, 2018. On
August 20, 2018, we changed our name to Luokung Technology Corp., our American Depository Shares (“ADSs”) were voluntarily
delisted from the NASDAQ Capital Market on September 19, 2018 and on January 3, 2019 our ordinary shares started trading on NASDAQ
under the ticker symbol “LKCO”.
On August 17, 2018,
we consummated an asset exchange transaction, pursuant to which we exchanged all issued and outstanding capital stock in Topsky
Info-Tech Holdings Pte Ltd., the parent of Softech, for the issued and outstanding capital stock of LK Technology (the “Asset
Exchange”). In connection with the Asset Exchange, we changed our name on August 20, 2018, and on September 20, 2018, issued
to the shareholders of C Media Limited, the former parent of LK Technology, (i) 185,412,599 of our ordinary shares, par value
$0.01 per share and (ii) 1,000,000 of our preferred shares. Upon the consummation of the Asset Exchange, we ceased our previous
business operations and became a company focused on the provision of location-based service and mobile application products for
long distance rail travelers in China.
On August 25, 2018, LK Technology entered into a Stock Purchase Agreement (the “Agreement”)
with the shareholders (“Shareholders”) of Superengine Holding Limited, a limited liability company incorporated under
the laws of the British Virgin Islands (the “Superengine”), pursuant to which LK Technology acquired all of the issued
and outstanding shares of Superengine for an aggregate purchase price of US$60 million (the “Purchase Price”), which
was paid by the issuance of our Ordinary Shares in an amount equal to the quotient of (x) the Purchase Price divided by (y) the
average of the closing prices of the Ordinary Shares on the NASDAQ Capital Market over the 12 months period preceding July 31,
2018. We are a party to the Agreement in connection with the issuance of the Ordinary Shares and certain other limited purposes.
Corporate Information
Our principal executive
offices are located at LAB32, SOHO 3Q, No 9, Guanghua Road, Chaoyang District, Beijing, People’s Republic of China 100020.
Our website is
www.luokung.com
. We routinely post important information on our website. The information contained on our
website is not a part of this annual report.
Our agent for service
of process in the United States is Worldwide Stock Transfer, LLC, the current transfer agent of the Company, with a mailing address
of One University Plaza, Suite 505, Hackensack, New Jersey 07601.
B. BUSINESS
OVERVIEW.
We are a China-based
provider of location-based services and mobile application products for long distance travelers in China. Our primary mobile application,
the Luokuang platform, consists of the Luokuang mobile applications, a series of supporting software at the server end, and rail-Wi-Fi
hardware and equipment on the trains that we serve. The Luokuang platform incorporates technologies covered by 22 patents and
about 34 software copyrights, and serves as a content and service distribution platform that is tailored for particular travel
stages featuring geographic location and social interactions. The content and services distributed by Luokuang contain information,
entertainment, travel, e-commerce, online to offline (“O2O”), advertisement and other marketing features.
Luokuang mainly provides
personalized and targeted services to long distance travelers in two locations: on the train and at the destination. Based on
the travel environment, the core elements of our users’ needs include staving off boredom on trains and discovering and
exploring new locations upon arrival. The main services contain entertainment services (videos and audio, digital readings, games
specific and tailored to the travel stage) and social services (satisfying the demand for value discovery of unfamiliar destinations
through social interaction among strangers based on locations). As of December 31, 2018, the Luokuang platform featured about
51 million users.
We use the most valuable
Wi-Fi location—the train Wi-Fi setting—as the entrance of our Luokuang platform and mobile applications. Passengers
typically ride trains for long-distance and inter-provincial travel purposes. The long periods of monotonous journeys and the
cost concerns for roaming traffic fees enable the combination of entertainment content service needs and Wi-Fi access needs. Our
rail-Wi-Fi becomes a valuable and sophisticated Wi-Fi service in this setting—not just Wi-Fi connection service, but a provider
of sophisticated services through a Wi-Fi connection. We do not define ourselves as a train Wi-Fi communication service operator
but as a long-distance travel mobile service and location-based service provider. The rail Wi-Fi is our access point to a significant
pool of users and the entrance to acquiring additional users.
The recommender services
focus on providing targeted push services to users while travelling in unfamiliar cities. Local information and guidance service
are precisely pushed according to individual user’s interest and taste, including restaurants, entertainment, living styles,
local snacks, local products, scenic spots, cultural history and stories. The guidance service is User Generated Content which
is shared and distributed by individual users including travelers, local residents and local businesses.
In June 2018, China
Railway Gecent Technology Co., Ltd. (or “Gecent”) (established jointly by China Railway Investment Co., Ltd., Geely
Holding Group and Tencent Holdings Ltd.) obtained the exclusive right to build and operate on train Wi-Fi for all the High-speed
trains in China. It provides a full-travelling service including on train Wi-Fi, entertainments, news, online meals order, online
specialty retailer and connecting travel. As the pathfinder in on-train Wi-Fi market in China, we have accumulated great experiences
and resources in construction and operation on train Wi-Fi on express trains in China, which enable us to cooperate with Gecent
to provide location-based services through the provision of our map SDKs(Software Development Kit) and APIs(Application-programming
Interface), including services at train stations covering navigation and OTO services, and to provide movie content SDK, movie
copyrights and operating services to the users of Gecent’s mobile application. Through the cooperation with Gecent, we are
able to expand our services to more valuable high-speed train passengers, while the high-speed train Wi-Fi in China will cover
about 3 billion passenger trips till the year of 2020.
Through the
acquisition of Superengine, we obtained patented technologies in spatial-temporal big data indexing, storage, transmission
and visualization that can support the full vector maps without tile, which can be effectively applied to high-definition
(HD) maps, location-based services, smart cities, intelligent transportation systems, mapping and surveying, remote sensing
and monitoring. We possess fifteen patents and nine patent application rights in U.S., Europe, Japan and China. Our graphics
processing system is a thousand times more efficient than competing technologies in querying, retrieving, transmitting and
rendering graphical information, and allowing Terabyte (TB) sized data to be released in seconds, which enable our
customers to obtain real-time operational intelligence by harnessing the value of their database.
Key Technologies
We believe our investments
in our products and key technologies provide significant competitive differentiation and our technologies are disruptive innovations
in computer graphics systems, spatial-temporal data analysis and processing. Our proprietary algorithms are able to eliminate
certain time-consuming steps in data preprocessing, and maintain same level of high system performance with the amount of data
increasing by orders of magnitude. It enables a new wave of technological upgrades in related industries to do more with less
time and less power consumption.
Spatial temporal indexing technology.
This technology provides
an effective indexing technique, covering both spatial dimension and temporal dimension. It separates the data and indexes, and
solves the technological difficulties in spatial temporal big data processing, including storage, updating, management, indexing,
reading, spatial relationship computation and analysis. This technology allows the users to efficiently and accurately obtain
the data they need, and minimizes the transmission of unnecessary data, which achieves application efficiency not being affected
even with explosive growth of data volume.
Adaptive reduction and
compression technology
This technology allows
full vector spatial data to be processed directly through the adaptive reduction and compression to meet the requirements of transmission
performance for internet application. Our competing technologies require preprocessing full vector data into tiles in a rasterized
format or in a vector format.
|
1.
|
Spatial relationship could still be strictly
maintained and correctly displayed after the reduction and compression
|
|
2.
|
The adaptive reduction and compression are
lossless so that the display effect remains the same
|
|
3.
|
The reduction and compression allow rapid
display of map in any network speed, adaptive to the network speed with dynamic adjustment
of the display effect.
|
Progressive transmission technology
Progressive transmission
technology is one of the key technologies to realize fast response in spatial data application. It supports lossless adaptive
progressive transmission of spatial data, and the display and operation of map can be conducted with any network speed, for instance,
by scaling, rotating, or translating. The display of map could be adjusted automatically in accordance with the network speed
and users’ operation.
Progressive transmission
technology makes system response time independent from the growth of spatial data, and also solves the performance problem in
dealing with spatial temporal big data. The data integrity between users’ end and server is not compromised as the spatial
relationship remains unchanged.
Full vector non-tiled technology
On the strength of
our technologies, we support real-time release and real-time update of spatial vector data without the preprocessing step to rasterize
the vector data, and we also support personalized display and analysis for the application of spatial data in real-time dynamic
environment. Our indexing technology enables clients to establish a fast transmission channel between user and server, for both
the large scope analysis and accurately pinning down details. Because the client can access the complete vector data, it solves
the problem that only partial analysis could be performed on tiles. This will greatly expand the data computing capability of
the client. In most scenarios, indexing can fulfill most of analysis requirements and application functions.
Our Services
Luokuang mobile
application.
We provide display-based online advertising services to customers by integrating text description, image and
video, and displaying the advertisements in prominent positions on Luokuang Application.
Luokung SDKs
and APIs.
Our location based product, Luokung SDKs and APIs, provide spatial-temporal big data analysis and customized
map to software and mobile application developers, and allow location-based contents and information to be integrated and
presented on the map, which enables software and mobile application developers to create more diversified business models and
service functions. Our proprietary full vector map presents refreshingly new and customizable location-based services to our
business partners.
Spatial temporal
indexing cloud.
The spatial temporal indexing cloud service is a data-level virtualization technology we offer to our clients
with high availability, extensibility and granular permission control. Our indexing cloud data centers offer highly integrated,
dependable, efficient and secure services to meet the needs of varied spatial temporal requirements covering all types of clients,
while shielding the details of data from disclosure to honor requested data protection.
Information SuperEngine.
Our information SuperEngine includes the server engine and web graphics image engine. The server engine enables our clients
to improve its ability and functions to store, manage and index the spatial temporal big data on the server side, and by establishing
spatial temporal index on the server, our clients are able to rapidly and more efficiently obtain their requested data. Web graphics
image engine, supports the rapid transmission of graphics image, and rapid display and edge computing ability for multi-terminal
and cross-platform.
Spatial temporal
cloud platform.
Spatial temporal cloud platform supports deployment on public and private clouds to provide services for both
industry users and public users. It provides comprehensive online cloud services including data storage, data resource and platform
support, and it supports users to aggregate multi-source spatial data, map services, Internet of things streaming data. By leveraging
variety of industry templates, simple and easy-to-use tools for data editing, analysis and searching, users will be able to generate
application systems for specific application scenarios. Various application operations can be performed through the mobile devices
and Web browsers.
Our Strategy
We put more effort
on continually improving the quality of our products and services, and the user’s experience of our products, as we believe
satisfied users and customers are more likely to recommend our products and services to others. Through these efforts and with
the increased use of internet in China, we will build our brand with modest marketing expenditures. We have implemented a number
of marketing initiatives to promote our brand awareness among potential users, customers. In addition to our brand positioning
in the market, we have also initiated a series of marketing activities to promote our products and technologies among existing
and potential users and customers.
We intend to invest
heavily in product development to deliver additional features and performance enhancements, deployment models and solutions that
can address new end markets. Our investments may involve hiring and associated development, acquisitions and licensing of third-party
technology.
We will continue to
increase investments in our sales and marketing organizations to expand our current customer base. Our investments will be spread
across geographies, customer tiers and industries. We will continue to invest in and foster the growth of our channel relationships
in China.
We will continue to
drive customer satisfaction and renewals by offering community, standard, enterprise and global support to ensure our customers’
success with our offerings.
We intend to continue
our investments in SDKs and APIs that help software developers leverage our platform. Our SDKs enable developers to build solutions
that deeply integrate the analytics functionality of our offerings across the enterprise. Through our investments in SDKs and
APIs, we intend to promote and extend the capabilities of our offerings to customers who wish to build sophisticated applications
and interfaces that leverage our software and services.
Intellectual Property
We have registered
the following software copyrights, patents and trademarks for our business operations. We believe this intellectual property forms
an integral part of our competitive strength.
Patents:
We have been granted
some inventions by the State Intellectual Property Office of PRC. We possess a complete set of technology system including network,
client end and service and operation platform. We have patent protections for Wi-Fi equipment on trains and for spatial-temporal
big data processing technology. We have received the following patents:
No.
|
|
Name
of patent
|
|
Type
|
|
|
Registration
Number
|
|
Date
of Issuance
|
|
1.
|
|
Wireless
communication multimedia chip business consumer information acquisition terminal device
|
|
Invention
|
|
|
ZL
2010 2 0528767.9
|
|
Sep
21, 2011
|
|
2.
|
|
A
user behavior processing method and device for intelligent terminal
|
|
Invention
|
|
|
ZL
2013 1 0301728.3
|
|
May
27, 2015
|
|
3.
|
|
A
global positioning system terminal device
|
|
Invention
|
|
|
ZL
2010 2 0253452.8
|
|
Nov
7, 2011
|
|
4.
|
|
A
wireless multimedia server
|
|
Invention
|
|
|
ZL
2013 2 0220183.9
|
|
Nov
13, 2013
|
|
5.
|
|
Ordering
system of passengers on train
|
|
Invention
|
|
|
ZL
2015 2 0095381.6
|
|
Aug
5, 2015
|
|
6.
|
|
A
wireless multimedia server
|
|
Invention
|
|
|
ZL
2015 2 0201382.4
|
|
Oct
28, 2015
|
|
7.
|
|
An
antenna structure
|
|
Invention
|
|
|
ZL
2016 2 0424352.4
|
|
Mar
1, 2017
|
|
8.
|
|
Spatial
data progressive transmission method and device
|
|
Invention
|
|
|
201010617383.9
|
|
|
Jun
15, 2016
|
|
9.
|
|
Methods
and devices for conflict detection and avoidance of spatial entity element labeling
|
|
Invention
|
|
|
201010617385.8
|
|
|
Mar
26, 2014
|
|
10.
|
|
Spatial
data processing method and device
|
|
Invention
|
|
|
201010617399.X
|
|
|
Jun
26, 2013
|
|
11.
|
|
Method
and device of spatial data simplification
|
|
Invention
|
|
|
201010617400.9
|
|
|
Mar
13, 2013
|
|
12.
|
|
Method
and device for judging the occlusion type of space entity
|
|
Invention
|
|
|
201010617403.2
|
|
|
Sep
25, 2013
|
|
13.
|
|
A
method and device for distributed mapping of 3d model data
|
|
Invention
|
|
|
201110274924.7
|
|
|
Mar
26, 2014
|
|
14.
|
|
Data
simplification of 3d model, gradual transmission method and device
|
|
Invention
|
|
|
201110275336.5
|
|
|
Mar
25, 2015
|
|
15.
|
|
Spatial
data transmission method and device
|
|
Invention
|
|
|
201110306393.5
|
|
|
Dec
13, 2014
|
|
16.
|
|
Methods
and devices for spatial data processing, simplification and progressive transmission
|
|
Invention
|
|
|
201210104250.0
|
|
|
Jun
10, 2015
|
|
17.
|
|
Spatial
data progressive transmission method and device
|
|
Invention
|
|
|
201310367021.2
|
|
|
Jun
23, 2017
|
|
18.
|
|
Simplification
method and device of spatial data
|
|
Invention
|
|
|
201310367128.7
|
|
|
Sep
22, 2017
|
|
19.
|
|
The
method and device to accelerate transmission and display of graphic data across platforms
|
|
Invention
|
|
|
201210116149.7
|
|
|
Aug
10, 2016
|
|
20.
|
|
Methods
and devices related to spatial data compression, decompression and progressive transmission
|
|
Invention
|
|
|
201310136682.4
|
|
|
Nov
10, 2017
|
|
We also have two patents
outside of China.
No.
|
|
Name
of patent
|
|
Country
|
|
|
National
Registration Number
|
|
Date
of Issuance
|
|
1.
|
|
Spatial
data processing method and device
|
|
|
Japan
|
|
|
2012-547439
|
|
|
Jun
20, 2014
|
|
2.
|
|
Methods
and devices related to spatial data compression, decompression and progressive transmission
|
|
|
U.S.A.
|
|
|
14/394,610
|
|
|
Sep
5, 2017
|
|
Software Copyrights:
We have received the
following software copyrights from the National Copyright Administration (“NCA”) of PRC:
No.
|
|
Name
of Copyright
|
|
Achievement
approach
|
|
Registration
number
|
|
Registration
date
|
|
Duration
|
1.
|
|
WAP
PUSH Business operation platform system
|
|
Independent
research and development
|
|
2007SRBJ1464
|
|
Jul
23, 2007
|
|
50
years
|
2.
|
|
TD-SCDMA
Streaming media business management platform software V1.0
|
|
Independent
research and development
|
|
2009SRBJ0412
|
|
Jan
22, 2009
|
|
50
years
|
3.
|
|
Content
management platform system software V1.0
|
|
Independent
research and development
|
|
2009SRBJ1374
|
|
Apr
1, 2009
|
|
50
years
|
4.
|
|
Mobile
multimedia broadcast electronic service guide system software V1.0
|
|
Independent
research and development
|
|
2009SRBJ1365
|
|
Apr
1, 2009
|
|
50
years
|
5.
|
|
Mobile
video business operation platform system V1.0
|
|
Independent
research and development
|
|
2007SRBJ1463
|
|
Jul
23, 2007
|
|
50
years
|
6.
|
|
Mobile
multimedia broadcast emergency broadcast platform software V1.0
|
|
Independent
research and development
|
|
2010SRBJ0720
|
|
Mar
5, 2010
|
|
50
years
|
7.
|
|
Mobile
multimedia broadcast audio rich media interactive platform softwareV1.0
|
|
Independent
research and development
|
|
2010SRBJ0719
|
|
Mar
5, 2010
|
|
50
years
|
8.
|
|
Printer
typesetting and printing software V1.0
|
|
Independent
research and development
|
|
2011SRBJ4190
|
|
Sep
28, 2011
|
|
50
years
|
9.
|
|
Electronic
newspaper business support platform software V1.0
|
|
Independent
research and development
|
|
2011SRBJ4186
|
|
Sep
28, 2011
|
|
50
years
|
10.
|
|
Public
information business platform software V1.0
|
|
Independent
research and development
|
|
2011SRBJ3810
|
|
Sep
27, 2011
|
|
50
years
|
11.
|
|
User
interface scripting software V1.0
|
|
Independent
research and development
|
|
2011SRBJ3809
|
|
Sep
27, 2011
|
|
50
years
|
12.
|
|
Integrated
business management platform software V1.0
|
|
Independent
research and development
|
|
2012SR003002
|
|
Jan
16, 2012
|
|
50
years
|
13.
|
|
Interactive
business development platform software
|
|
Independent
research and development
|
|
2011SRBJ4593
|
|
Nov
29, 2011
|
|
50
years
|
14.
|
|
Instant
messaging and messaging system software
|
|
Independent
research and development
|
|
2014SR122231
|
|
Aug
5, 2014
|
|
50
years
|
15.
|
|
General
statistical platform software for client products
|
|
Independent
research and development
|
|
2014SR216662
|
|
Dec
30, 2014
|
|
50
years
|
16.
|
|
CMMB
Data broadcast management platform software
|
|
Independent
research and development
|
|
2009SRBJ0391
|
|
Jan
22, 2009
|
|
50
years
|
17.
|
|
Integrated
passenger train service system
|
|
Independent
research and development
|
|
2012SR083665
|
|
Sep
5, 2012
|
|
50
years
|
No.
|
|
Name
of Copyright
|
|
Achievement
approach
|
|
Registration
number
|
|
Registration date
|
|
Duration
|
18.
|
|
JHBY
Train inspection management system
|
|
Independent
research and development
|
|
2013SR015105
|
|
Feb
21, 2013
|
|
50
years
|
19.
|
|
Integrated
information engine platform software V1.0
|
|
Independent
research and development
|
|
2014SR040347
|
|
Nov
30, 2001
|
|
50
years
|
20.
|
|
Super
information engine development platform software V5.0
|
|
Independent
research and development
|
|
2014SR036792
|
|
Mar
5, 2003
|
|
50
years
|
21.
|
|
Core
map super network information engine platform software V1.0
|
|
Independent
research and development
|
|
2014SR036772
|
|
Sep
15, 2007
|
|
50
years
|
22.
|
|
Integrated
management of the grid gis software V1.0
|
|
Independent
research and development
|
|
2014SR036808
|
|
Jun
20, 2008
|
|
50
years
|
23.
|
|
Core
map rural power grid equipment GPS patrol system software V1.0
|
|
Independent
research and development
|
|
2014SR036810
|
|
Dec
10, 2008
|
|
50
years
|
24.
|
|
Diagram
grid patrol PDA system software V1.0
|
|
Independent
research and development
|
|
2014SR036778
|
|
Dec
12, 2008
|
|
50
years
|
25.
|
|
Core
map geographic information engine desktop platform software V1.0
|
|
Independent
research and development
|
|
2014SR036614
|
|
Jan
15, 2009
|
|
50
years
|
26.
|
|
Integrated
management of the grid geographic information Web system software V1.0
|
|
Independent
research and development
|
|
2014SR036799
|
|
Mar
10, 2009
|
|
50
years
|
27.
|
|
Core
map railway power supply equipment GPS patrol system software V1.0
|
|
Independent
research and development
|
|
2014SR036783
|
|
Mar
25, 2010
|
|
50
years
|
28.
|
|
Core
map network 3 d map server software V1.0
|
|
Independent
research and development
|
|
2014SR036788
|
|
Feb
20, 2011
|
|
50
years
|
29.
|
|
Core
map network 3d map client softwareV1.0
|
|
Independent
research and development
|
|
2014SR036637
|
|
Feb
22, 2011
|
|
50
years
|
30.
|
|
Core
map 3d map network publishing platform software V1.0
|
|
Independent
research and development
|
|
2014SR036633
|
|
Mar
10, 2011
|
|
50
years
|
31.
|
|
Core
map 3d map network release plug-in system software V1.0
|
|
Independent
research and development
|
|
2014SR036622
|
|
Mar
15, 2011
|
|
50
years
|
32.
|
|
Core
map network 3d map smartphone platform software V1.0
|
|
Independent
research and development
|
|
2014SR036638
|
|
Apr
28, 2011
|
|
50
years
|
33.
|
|
Core
map network GIS Shared mobile platform software V1.0
|
|
Independent
research and development
|
|
2014SR036634
|
|
Oct
31, 2011
|
|
50
years
|
34.
|
|
Core
map network GIS sharing platform software V1.0
|
|
Independent
research and development
|
|
2014SR036639
|
|
Dec
16, 2011
|
|
50
years
|
Trademarks:
We have registered
the following trademarks with the Trademark Office, State Administration for Industry and Commerce in the PRC:
No
|
|
Trademark
|
|
Classification
Number
|
|
Valid
Period
|
|
Registration
Number
|
1
|
|
Y-图形
|
|
38
|
|
2010.04.21-2020.04.20
|
|
6746069
|
2
|
|
Y-图形
|
|
41
|
|
2010.09.07-2020.09.06
|
|
6746067
|
3
|
|
YRADIO-文字
|
|
35
|
|
2010.07.21-2020.07.20
|
|
6733437
|
4
|
|
YRADIO-文字
|
|
38
|
|
2010.04.21.2020.04.20
|
|
6733438
|
5
|
|
YRADIO-文字
|
|
41
|
|
2010.09.07-2020.09.06
|
|
6733439
|
6
|
|
LookLook-图形
|
|
38
|
|
2009.04.07-2019.04.06
|
|
4666051
|
7
|
|
LookLook-图形
|
|
42
|
|
2008.12.21-2028.12.20
|
|
4666050
|
8
|
|
YTV-文字
|
|
35
|
|
2010.07.21-2020.07.20
|
|
6733579
|
9
|
|
YTV-文字
|
|
38
|
|
2010.05.28-2020.05.27
|
|
6733578
|
10
|
|
YTV-文字
|
|
41
|
|
2010.09.07-2020.09.06
|
|
6733581
|
11
|
|
YTV-文字
|
|
42
|
|
2010.09.07-2020.09.06
|
|
6733580
|
12
|
|
YOUTV-文字
|
|
35
|
|
2010.07.21-2020.07.20
|
|
6733440
|
13
|
|
YOUTV-文字
|
|
38
|
|
2010.05.28-2020.05.27
|
|
6733441
|
14
|
|
xfeng-文字
|
|
35
|
|
2012.03.28-2022.03.27
|
|
9229145
|
No
|
|
Trademark
|
|
Classification
Number
|
|
Valid
Period
|
|
Registration
Number
|
15
|
|
xfeng-文字
|
|
38
|
|
2012.03.28-2022.03.27
|
|
9229160
|
16
|
|
xfeng-文字
|
|
41
|
|
2012.03.28-2022.03.27
|
|
9229190
|
17
|
|
xfeng-文字
|
|
42
|
|
2012.03.28-2022.03.27
|
|
9229221
|
18
|
|
中传视讯-文字+图形
|
|
42
|
|
2008.12.21-2028.12.20
|
|
4666047
|
19
|
|
中传视讯-文字
|
|
42
|
|
2008.12.21-2028.12.20
|
|
4666048
|
20
|
|
中传视讯-文字
|
|
38
|
|
2008.12.21-2028.12.20
|
|
4666049
|
21
|
|
新蜂-文字
|
|
38
|
|
2011.08.21-2021.08.20
|
|
8538907
|
22
|
|
新蜂-文字
|
|
42
|
|
2012.01.28-2022.01.27
|
|
8539078
|
23
|
|
新蜂.潮-文字
|
|
38
|
|
2011.08.21-2021.08.20
|
|
8539104
|
24
|
|
新蜂.潮-文字
|
|
42
|
|
2012.01.28-2022.01.27
|
|
8539141
|
25
|
|
新影力
|
|
41
|
|
2014.08.28-2024.08.27
|
|
12288643
|
26
|
|
小人-图形
|
|
35
|
|
2014.08.28-2024.08.27
|
|
12287985
|
27
|
|
小人-图形
|
|
38
|
|
2014.08.28-2024.08.27
|
|
12288580
|
28
|
|
小人-图形
|
|
41
|
|
2014.08.28-2024.08.27
|
|
12288629
|
29
|
|
小人-图形
|
|
42
|
|
2014.08.28-2024.08.27
|
|
12288435
|
30
|
|
中传-文字
|
|
38
|
|
2014.08.28-2024.08.27
|
|
12288267
|
31
|
|
中传-图形
|
|
38
|
|
2014.08.28-2024.08.27
|
|
12288289
|
32
|
|
中童-文字
|
|
41
|
|
2014.08.07-2024.08.06
|
|
12214085
|
33
|
|
中童在线-文字
|
|
41
|
|
2014.08.07-2024.08.06
|
|
12214092
|
34
|
|
翠鸟-文字
|
|
38
|
|
2014.08.07-2014.08.06
|
|
12214058
|
35
|
|
翠鸟-文字
|
|
42
|
|
2014.08.07-2014.08.06
|
|
12214125
|
36
|
|
爱翠鸟-文字
|
|
38
|
|
2014.08.07-2024.08.06
|
|
12214066
|
37
|
|
爱翠鸟-文字
|
|
41
|
|
2014.08.07-2024.08.06
|
|
12214096
|
38
|
|
爱翠鸟-文字
|
|
42
|
|
2014.08.07-2024.08.06
|
|
12214126
|
39
|
|
翠鸟-图形
|
|
35
|
|
2014.08.07-2024.08.06
|
|
12214040
|
40
|
|
翠鸟-图形
|
|
38
|
|
2014.08.07-2024.08.06
|
|
12214074
|
41
|
|
翠鸟-图形
|
|
41
|
|
2014.08.07-2024.08.06
|
|
12214100
|
42
|
|
翠鸟-图形
|
|
42
|
|
2014.08.07-2024.08.06
|
|
12214131
|
43
|
|
信号小喇叭图形+CMEDIA
|
|
41
|
|
2015.03.21-2025.03.20
|
|
12480439
|
44
|
|
LookLook-图形
|
|
38
|
|
2015.11.14-2025.11.13
|
|
11533428
|
45
|
|
LookLook-图形
|
|
42
|
|
2014.06.21-2024.06.20
|
|
11533720
|
46
|
|
LookLook-文字
|
|
38
|
|
2014.07.14-2024.07.13
|
|
11534067
|
47
|
|
LookLook-文字
|
|
42
|
|
2014.04.14-2024.04.13
|
|
11534227
|
48
|
|
L-图形
|
|
35
|
|
2014.02.28-2024.02.27
|
|
11535002
|
49
|
|
L-图形
|
|
38
|
|
2014.02.28-2024.02.27
|
|
11535073
|
50
|
|
L-图形
|
|
41
|
|
2014.02.28-2024.02.27
|
|
11535181
|
51
|
|
L-图形
|
|
42
|
|
2014.02.28-2024.02.27
|
|
11535262
|
52
|
|
箩筐-图形
|
|
41
|
|
2016.06.14-2026.06.13
|
|
16580228
|
53
|
|
箩筐-图形
|
|
42
|
|
2016.06.14-2026.06.13
|
|
16580227
|
54
|
|
箩筐-文字
|
|
42
|
|
2016.09.28-2026.09.27
|
|
16580249
|
55
|
|
箩筐-文字
|
|
41
|
|
2016.06.14-2026.06.13
|
|
16580250
|
56
|
|
箩筐-文字
|
|
35
|
|
2016.09.21-2026.09.20
|
|
16580252
|
57
|
|
箩筐-文字
|
|
9
|
|
2016.06.14-2026.06.13
|
|
16580253
|
No
|
|
Trademark
|
|
Classification
Number
|
|
Valid
Period
|
|
Registration
Number
|
58
|
|
箩筐-图形
|
|
38
|
|
2016.06.14-2026.06.13
|
|
16580229
|
59
|
|
箩筐-图形
|
|
35
|
|
2016.06.14-2026.06.13
|
|
16580230
|
60
|
|
箩筐-图形
|
|
9
|
|
2016.06.14-2026.06.13
|
|
16580231
|
61
|
|
微时光-文字
|
|
42
|
|
2016.09.28-2026.09.27
|
|
16580247
|
62
|
|
传游录屏-文字
|
|
9
|
|
2016.06.14-2026.06.13
|
|
16782144
|
63
|
|
传游录屏-文字
|
|
35
|
|
2016.06.14-2026.06.13
|
|
16782143
|
64
|
|
传游录屏-文字
|
|
38
|
|
2016.06.14-2026.06.13
|
|
16782142
|
65
|
|
传游录屏-文字
|
|
41
|
|
2016.06.14-2026.06.13
|
|
16782141
|
66
|
|
传游录屏-文字
|
|
42
|
|
2016.06.14-2026.06.13
|
|
16782140
|
67
|
|
录游器-文字
|
|
9
|
|
2016.06.14-2026.06.13
|
|
16782135
|
68
|
|
录游器-文字
|
|
35
|
|
2016.06.14-2026.06.13
|
|
16782136
|
69
|
|
录游器-文字
|
|
38
|
|
2016.06.14-2026.06.13
|
|
16782137
|
70
|
|
录游器-文字
|
|
41
|
|
2016.06.14-2026.06.13
|
|
16782138
|
71
|
|
录游器-文字
|
|
42
|
|
2016.06.14-2026.06.13
|
|
16782139
|
72
|
|
畅联TV-文字
|
|
41
|
|
2016.01.21-2026.01.20
|
|
15792467
|
73
|
|
畅联TV-文字
|
|
38
|
|
2016.01.21-2026.01.20
|
|
15792468
|
74
|
|
SuperEngine
|
|
9
|
|
2016.01.21-2026.01.20
|
|
8125722
|
75
|
|
SuperEngine
|
|
42
|
|
2016.01.21-2026.01.20
|
|
8125728
|
76
|
|
超擎
|
|
9/42
|
|
2016.01.21-2026.01.20
|
|
16473205
|
77
|
|
SUPERENGINE
|
|
9/42
|
|
2016.01.21-2026.01.20
|
|
16473185
|
|
*
|
See
below for an explanation of each classification number used in the table above.
|
Classification No.
9: data processing apparatus, couplers (data processing equipment), computer software (recorded), monitors (computer
programs), smart cards (integrated circuit cards), electro-dynamic apparatus for the remote control of signals, alarms, and electric
installations for the remote control of industrial operations.
Classification No.
35: auctioneering, sales promotion for others, marketing analysis, marketing research, import-export agencies, advisory
services for business management, business management for franchise, personnel management consultancy, relocation services for
businesses, and systemization of information into computer databases.
Classification No. 38: Include services that enable at least sensory communication between two people.
Such services include that allow one person to talk to another, send messages from one person to another, Make verbal or visual
contact between one person and the other. This classification especially includes the service for broadcasting radio or television
programs. Except for radio advertising services and telemarketing services.
Classification No.
41: instruction services, teaching, education information, tuition, arranging and conducting of colloquiums, publication
of electronic books and journals on-line, amusements, and vocational guidance.
Classification No.
42: technical research, studies (technical project), computer software design, updating of computer software, recovery
of computer data, computer systems analysis, installation of computer software, computer anti-virus protection, and research and
development for others.
Business Certificates and Qualifications
We have obtained all
necessary regulatory certifications to conduct our business in the PRC, including without limitation, the following: Software
Enterprise Recognition Certificate, Computer Information System Integration Qualification Certificate, Construction Enterprise
Qualification Certificate, and Security Technology & Protection Enterprise Certificate. We have also been properly certified
as a high-tech enterprise and have met the ISO 9001:2000 qualification management system.
Legal Proceedings
Although we may, from
time to time, be involved in litigation and claims arising out of our operations in the normal course of business, we do not believe
that we are a party to any litigation that will have a material adverse impact on our financial condition or results of operations.
To our knowledge, other than as described below there are no material legal proceedings threatened against us. From time to time,
we may be subject to various claims and legal actions arising in the ordinary course of business. Following the consummation of
the AEA, we became successor in interest to the legal proceedings described below.
Lawsuit with Gansu Jinlun Culture Media
Co., Ltd.
On August 22, 2014,
Zhong Chuan Rui You and Gansu Jinlun Culture Media Co., Ltd. (“Gansu Jinlun”) signed a “Lanzhou Railway Bureau
Air-conditioned Train Wi-Fi Network System Advertising Operation Rights Agreement” for advertising on 72
trains of $1,467,880 (RMB9,604,633). Due to the dispute on the project implementation, Zhong Chuan Rui You did not pay
the advertising fee. On August 23, 2017, Gansu Jinlun filed a lawsuit with Gansu Intermediate People’s Court. On December
19, 2017, Gansu Intermediate People’s Court issued a verdict, ruling that Zhong Chuan Rui You settle the overdue advertising
fee.
Zhong Chuan Rui You
and Gansu Jinlun are negotiating a potential settlement to resume the contract. According to the legal counsel, it is probable
that the settlement will amount to approximately $459,000 (RMB3,000,000), therefore, this amount has been accrued in accounts
payable as at December 31, 2018.
C.
ORGANIZATIONAL STRUCTURE
The following diagram
illustrates our corporate structure and the place of formation and affiliation of each of our subsidiaries and affiliates as of
December 31, 2018.
The following diagram
illustrates our corporate structure and the place of formation and affiliation of each of our subsidiaries and affiliates as of
December 31, 2017.
VIE Arrangements with Beijing Zhong
Chuan Shi Xun Technology Limited’s Subsidiaries and Their Respective Shareholders
To comply with
the PRC legal restrictions on foreign ownership of companies that operate mobile application services, our subsidiaries
operate in such restricted service areas in the PRC through certain PRC domestic companies, whose equity interests are held
by certain management members or founders of the LK Technology Ltd. Part of the registered capital of these PRC domestic
companies was funded by certain management members or founders of LK Technology Ltd. LK Technology Ltd., through
its subsidiary Zhong Chuan Tian Xia Information and Technology (Shenzhen) Limited (the “WFOE”), has entered into
an exclusive business cooperation agreement with Beijing Zhong Chuan Shi Xun Technology Limited (“Zhong Chuan Shi
Xun” or the “VIE”) the PRC domestic company, which entitle the WFOE to receive a majority of profit of
Zhong Chuan Shi Xun. In addition, Zhong Chuan Tian Xia Information and Technology (Shenzhen) Limited has entered into certain
agreements with those management members or founders, including equity interest pledge agreement of the equity interests held
by those management members or founders and exclusive option agreement to acquire the equity interests in these companies
when permitted by the PRC laws, rules and regulations. Details of the typical VIE structure of our significant consolidated
VIE, primarily domestic companies associated with the operations such as Zhong Chuan Shi Xun and its subsidiaries of Jiangsu
Zhong Chuan Rui You Information and Technology Limited (“Zhong Chuan Rui You”), Huoerguosi Luokuang Information
and Technology Limited (“Huoerguosi Luokuang”) and Shenzhen Jiu Zhou Shi Dai Digital and Technology Limited
(“Jiu Zhou Shi Dai”), are set forth below:
Exclusive Business Cooperation Agreement
The VIE has entered into an exclusive business services agreement with the WFOE, pursuant to which the
WFOE provides exclusive business services to the VIE. In exchange, the VIE pays a service fee to the WFOE which typically amounts
to what would be substantially all of the VIE’s pre-tax profit, resulting in a transfer of substantially all of the profits
from the VIE to the WFOE.
Exclusive Option Agreement
The VIE equity holders
have granted the WFOE exclusive call options to purchase their equity interest in the VIE at an exercise price equal to the minimum
price as permitted by applicable PRC laws. The WFOE may nominate another entity or individual to purchase the equity interest,
if applicable, under the call options. Each call option is exercisable subject to the condition that applicable PRC laws, rules
and regulations do not prohibit completion of the transfer of the equity interest pursuant to the call option. The VIE agrees
not to distribute any dividends to the VIE equity holders without the approval of WFOE.
Equity Interest Pledge Agreement
Pursuant to the equity pledge agreement, the VIE equity holders have pledged all of their interests in
the equity of the VIE as a continuing first priority security interest in favor of the WFOE to secure the performance of obligations
by the VIEs and/or the equity holders under the exclusive business cooperation agreement. The WFOE is entitled to exercise its
right to dispose of the VIE equity holders’ pledged interests in the equity of the VIE and has priority in receiving payment
by the application of proceeds from the auction or sale of such pledged interests, in the event of any breach or default under
the exclusive business cooperation agreement, if applicable. These equity pledge agreements remain in force until all the obligations
under the exclusive business cooperation agreement have been fulfilled.
The exclusive business
cooperation agreement and equity interest pledge agreement described above also enable the Company to receive substantially all
of the economic benefits from the VIE by typically entitling the WFOE to all dividends and other distributions declared by the
VIE and to any distributions or proceeds from the disposal by the VIE equity holders of their equity interests in the VIE.
D. PROPERTY
AND EQUIPMENT
We lease offices located
at Lab 30 & Lab 32, SOHO 3Q, No 9, Guanghua Road, Chaoyang District, Beijing, which covers a floor space of 600 square meters.
These leases expire at different times throughout 2019 and are renewable upon negotiation.
ITEM 4A. UNRESOLVED
STAFF COMMENTS
None.
ITEM 5. OPERATING AND
FINANCIAL REVIEW AND PROSPECTS
A
.
OPERATING
RESULTS.
The following discussion and analysis of our financial condition and results of operations should be read
in conjunction with our consolidated financial statements and the notes to those financial statements appearing elsewhere in this
report. This discussion and analysis contain forward-looking statements that involve significant risks and uncertainties. As a
result of many factors, such as our anticipated growth strategy, our plans to recruit more employees, our plans to invest in research
and development to enhance our product or service lines, our future business development, results of operations and financial condition,
expected changes in our net revenues and certain cost or expense items, our ability to attract and retain customers, trends and
competition in the enterprise mobile software application market, and the factors set forth elsewhere in this report, our actual
results may differ materially from those anticipated in these forward-looking statements. In light of those risks and uncertainties,
there can be no assurance that the forward-looking statements contained in this report will in fact occur. You should not place
undue reliance on the forward-looking statements contained in this report.
The forward-looking
statements speak only as of the date on which they are made, and, except to the extent required by U.S. federal securities laws,
we undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which
the statement is made or to reflect the occurrence of unanticipated events. Further, the information about our intentions
contained in this report is a statement of our intention as of the date of this report and is based upon, among other things,
the existing regulatory environment, industry conditions, market conditions and prices and our assumptions as of such date. We
may change our intentions, at any time and without notice, based upon any changes in such factors, in our assumptions or otherwise.
Unless the context
otherwise requires, all references to (i) “PRC” and “China” are to the People’s Republic of China;
(ii) “U.S. dollar,” “$” and “US$” are to United States dollars; and (iii) “RMB”,
“Yuan” and Renminbi are to the currency of the PRC or China.
Overview
Luokung
Technology Corp. was incorporated on October 27, 2009 under the laws of the British Virgin Islands. We are a holding
company and conduct our operations through our wholly-owned subsidiary named LK Technology Ltd., a British Virgin Islands
limited liability company (“LK Technology”), and its wholly-owned subsidiaries, MMB Limited and its respective
subsidiaries, which possess two core brands “Luokuang” and “SuperEngine”. “Luokuang” is a
mobile application to provide Business to Customer (B2C) location-based services and “SuperEngine” provides
Business to Business (B2B) and Business to Government (B2G) services in connection with spatial-temporal big data processing.
In May 2010, we consummated an initial public offering of our American Depository Shares, or ADSs, for gross proceeds of $16
million, and our ADSs were listed on the NASDAQ Capital Market under the ticker symbol “KONE”. On August 17,
2018, we completed the transactions contemplated by the Asset Exchange Agreement (“AEA”) with C Media Limited
(“C Media”) entered into on January 25, 2018. On August 20, 2018, we changed our name to Luokung
Technology Corp., our American Depository Shares (“ADSs”) were voluntarily delisted from the NASDAQ Capital
Market on September 19, 2018 and on January 3, 2019 our ordinary shares started trading on NASDAQ under the ticker symbol
“LKCO”.
On August 17, 2018,
we consummated an asset exchange transaction, pursuant to which we exchanged all issued and outstanding capital stock in Topsky
Info-Tech Holdings Pte Ltd., the parent of Softech, for the issued and outstanding capital stock of LK Technology (the “Asset
Exchange”). In connection with the Asset Exchange, we changed our name on August 20, 2018, and on September 20, 2018, completed
the issuance to the shareholders of C Media Limited, the former parent of LK Technology, of (i) 185,412,599 of our ordinary shares,
par value $0.01 per share and (ii) 1,000,000 of our preferred shares. Upon the consummation of the Asset Exchange, we ceased our
previous business operations and became a company focused on the provision of location-based service and mobile application products
for long distance travelers in China.
On August 25, 2018, LK Technology entered into a Stock Purchase Agreement (the “Agreement”)
with the shareholders (“Shareholders”) of Superengine Holding Limited, a limited liability company incorporated under
the laws of the British Virgin Islands (the “Superengine”), pursuant to which LK Technology acquired all of the issued
and outstanding shares of Superengine for an aggregate purchase price of US$60 million (the “Purchase Price”), which
was paid by the issuance of our Ordinary Shares in an amount equal to the quotient of (x) the Purchase Price divided by (y) the
average of the closing prices of the Ordinary Shares on the NASDAQ Capital Market over the 12 months period preceding July 31,
2018. We are a party to the Agreement in connection with the issuance of the Ordinary Shares and certain other limited purposes.
Results of operations for the fiscal
year ended December 31, 2018 compared to the fiscal year ended December 31, 2017.
Revenue
Display-based
online advertising services.
The Company provides display-based online advertising services to customers by
integrating text description, image and video, and displaying the advertisements in a prominent position of Luokuang mobile
application on a cost-per-click basis. The customers pay us only when a user clicks on an advertisement on the Luokuang
mobile application. The Company recognizes revenue over time because the customer receives and consumes the benefit of our
advertising services throughout the contract period.
Software and services
The Company generates revenues primarily in the form of sale of software license and provision of technology solution services.
License fees include perpetual license fees, term license fees and royalties. Technology services primarily consist of fees for
providing technology solution services that enable customers to gain real-time operational intelligence by harnessing the value
of their data.
Revenue for the sale
of software licenses is recognized at the point in time when the control of the provided goods is provided to our customers.
Technology solution revenue is recognized over time, as the services are performed because the customer
receives and consumes the benefit of our performance throughout the contract period. Milestones with corresponding payment are
stated in the contracts with customers. We bill for the services we have performed when the milestones reached are accepted by
the customer in accordance with the terms of the contract. We recognize the revenues associated with these professional services
as we deliver each agreed portion of the services.
|
|
Fiscal Year Ended
December 31,
|
|
|
2018 to 2017
|
|
|
|
2018
|
|
|
2017
|
|
|
% Change
|
|
|
|
(dollars in thousands)
|
|
|
|
|
Revenues
|
|
|
|
|
|
|
|
|
|
Advertising
|
|
$
|
20,703
|
|
|
$
|
26,082
|
|
|
|
(20.6
|
)%
|
License
|
|
|
203
|
|
|
|
-
|
|
|
|
100.0
|
%
|
Technology Services
|
|
|
136
|
|
|
|
-
|
|
|
|
100.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
$
|
21,042
|
|
|
$
|
26,082
|
|
|
|
(19.3
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Advertising
|
|
|
98.3
|
%
|
|
|
100.0
|
%
|
|
|
|
|
License
|
|
|
1.0
|
%
|
|
|
-
|
|
|
|
|
|
Technology Services
|
|
|
0.7
|
%
|
|
|
-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100.0
|
%
|
|
|
100.0
|
%
|
|
|
|
|
For the year ended
December 31, 2018, we had revenue of $21,042,363, as compared to revenue of $26,082,417 for the year ended December 31, 2017, a
change of $5,040,054, or 19.3%, which was primarily due to most of our on-train Wi-Fi equipment being dissembled in the fourth
quarter of 2018 for upgrade projects, and we were not able to provide the on-train advertising through the Luokuang mobile application, which
caused the advertising revenue to decrease.
Cost of revenue
Our cost of revenue
primarily consists of depreciation, Wi-Fi equipment installation fees, amortization, spare parts, annual payments to local railway
bureau and other overhead costs.
|
|
Year Ended December 31,
|
|
|
|
2018
|
|
|
2017
|
|
|
|
(dollars in thousands)
|
|
|
|
Amount
|
|
|
% of cost
of revenue
|
|
|
% of
revenue
|
|
|
Amount
|
|
|
% of cost
of revenue
|
|
|
% of
revenue
|
|
Depreciation
|
|
$
|
2,807
|
|
|
|
40.4
|
%
|
|
|
13.3
|
%
|
|
$
|
2,423
|
|
|
|
43.6
|
%
|
|
|
9.3
|
%
|
Wi-Fi equipment installation fees
|
|
|
1,884
|
|
|
|
27.2
|
%
|
|
|
9.0
|
%
|
|
|
1,070
|
|
|
|
19.3
|
%
|
|
|
4.1
|
%
|
Spare parts
|
|
|
1,006
|
|
|
|
14.5
|
%
|
|
|
4.8
|
%
|
|
|
348
|
|
|
|
6.3
|
%
|
|
|
1.3
|
%
|
Amortization
|
|
|
414
|
|
|
|
6.0
|
%
|
|
|
2.0
|
%
|
|
|
610
|
|
|
|
11.0
|
%
|
|
|
2.3
|
%
|
Resource cost
|
|
|
557
|
|
|
|
8.0
|
%
|
|
|
2.6
|
%
|
|
|
686
|
|
|
|
12.4
|
%
|
|
|
2.6
|
%
|
Others
|
|
|
270
|
|
|
|
3.9
|
%
|
|
|
1.3
|
%
|
|
|
411
|
|
|
|
7.4
|
%
|
|
|
1.6
|
%
|
Total cost of revenue
|
|
$
|
6,938
|
|
|
|
100.0
|
%
|
|
|
33.0
|
%
|
|
$
|
5,548
|
|
|
|
100.0
|
%
|
|
|
21.3
|
%
|
Cost of revenue for
the year ended December 31, 2018 was $6,938,063, representing an increase of $1,390,284 or 25.1% as compared to $5,547,779 for
the year ended December 31, 2017. The increase was primarily attributable to the increase in Wi-Fi equipment installation fees
and spare parts for the Wi-Fi equipment upgrade program we conducted in 2018.
Selling and marketing expense
Our selling and marketing
expense mainly include promotional and marketing expenses and compensation for our sales and marketing personnel.
Selling expense totaled $14,695,165 for the year ended December 31, 2018, as compared to $23,908,733 for
the year ended December 31, 2017, a decrease of $9,213,568 or 38.5%. The decrease was primarily attributable to a decrease in promotional
and marketing activities of approximately $9,100,000, which was due to the popularity of Luokuang APP remaining quite stable, and
we determined to reduce the promotional and marketing activities at this stage.
General and administrative expense
Our general and administrative
expenses consist primarily of salaries and benefits for our general and administrative personnel, rent, fees and expenses for
legal, accounting and other professional services.
General and administrative expense totaled $6,750,417 for the year ended December 31, 2018, as compared
to $2,451,249 for the year ended December 31, 2017, an increase of $4,299,168 or 175.4%. The increase was primarily attributable
to an increase of impairment loss of approximately $3,579,000 including the bad debts written off of approximately $869,000, the
allowance for doubtful receivables of approximately $1,783,000, and impairment loss over the intangible assets of approximately
$724,000 as we are no longer using the software system that we purchased in 2014, and an impairment loss over the property, plant
and equipment of approximately $203,000, as we wrote off certain Wi-Fi equipment that is no longer in use.
Research and development expenses.
Research and development
expenses primarily consist of salaries and benefits for research and development personnel.
Research and development
expenses totaled $3,478,570 for the year ended December 31, 2018, as compared to $1,046,198 for the year ended December 31, 2017,
an increase of $2,432,372 or 232.5%. The increase was primarily attributable to the amortization of the intangible assets of approximately
$1,809,000, which was recognized as a result of the acquisition of Super Engine Holdings Limited in accordance to PPA.
Loss from operations
As a result of the factors described above, for the year ended December 31, 2018, loss from operations
amounted to $10,819,852, as compared to loss from operations of $6,871,542 for the year ended December 31, 2017, an increase of
$3,948,310, or 57.5%.
Other income/expense
Other income/expense
mainly include interest expenses from other loans and foreign currency gains/losses.
For the year ended December 31, 2018, other expense, net, amounted to $1,033,675 as compared to other
income, net, of $61,088 for the year ended December 31, 2017, a change of $1,094,763, or 1,792.1%, which was primarily attributable
to an increase in foreign currency transaction loss of approximately $1,555,000 and an increase in interest expenses of approximately
$54,000, offset by an increase in other income of approximately $513,000, which mainly constitutes the government subsidy of approximately
$360,000, investment income of approximately $37,000 and other income of approximately $116,000.
Income tax
We had income tax expense
of $74,009, $0 and $0 for the years ended 2018, 2017 and 2016, respectively. We are subject to various rates of income tax under
different jurisdictions. The following summarizes the major factors affecting our applicable tax rates in the BVI, Hong Kong and
the PRC.
BVI
We are an exempted
company incorporated in the British Virgin Islands. Under the current laws of the British Virgin Islands, we are not subject to
income, corporation or capital gains tax in the British Virgin Islands. In addition, our payment of dividends to our shareholders,
if any, is not subject to withholding tax in the British Virgin Islands.
Hong Kong
Our subsidiaries in
Hong Kong are subject to the uniform tax rate of 16.5%. Under Hong Kong tax law, our subsidiaries in Hong Kong are exempted from
income tax on their foreign-derived income and there is no withholding tax in Hong Kong on remittance of dividends.
PRC
Generally, our PRC
subsidiaries, our consolidated affiliated entities and their subsidiaries are subject to enterprise income tax on their taxable
income in the PRC at a rate of 25%. The enterprise income tax is calculated based on the entity’s global income as determined
under PRC tax laws and accounting standards.
An enterprise may benefit
from a preferential tax rate of 15% under the EIT Law if it qualifies as a High and New Technology Enterprise, which is normally
effective for a period of three years. Our subsidiaries, Beijing Zhong Chuan Shi Xun Technology Limited and Superengine Graphics
Software Technology Development (Suzhou) Co., Ltd are a High-tech enterprise and enjoy a favorable income tax rate of 15%.
Net loss
As a result of the factors described above, our net loss was $11,927,536 for the year ended December 31,
2018, compared to net loss of $6,810,454 for the year ended December 31, 2017, an increase of $5,117,082 or 75.1%.
Foreign currency translation adjustment
Our reporting currency
is the U.S. dollar. The functional currency of our parent company and subsidiaries of LK Technology, MMB and Mobile Media is the
U.S. dollar and the functional currency of the Company’s subsidiaries incorporated in China is the Chinese Renminbi (“RMB”).
The financial statements of our subsidiaries incorporated in China are translated to U.S. dollars using period end rates of exchange
for assets and liabilities, and average rates of exchange (for the period) for revenue, costs, and expenses. Net gains and losses
resulting from foreign exchange transactions are included in the consolidated statements of operations and comprehensive loss.
As a result of foreign currency translations, which are a non-cash adjustment, we reported a foreign currency translation gain
of $447,246 for the year ended December 31, 2018, as compared to a foreign currency translation gain of $ 90,671 for the year
ended December 31, 2017. This non-cash gain had the effect of increasing/decreasing our reported comprehensive income/loss.
Comprehensive loss
As a result of our
foreign currency translation adjustment, we had comprehensive loss for the year ended December 31, 2018 of $11,480,290, compared
to comprehensive loss of $ 6,719,783 for the year ended December 31, 2017.
Comparison of results of operations
for the year ended December 31, 2017 and 2016
Revenue
For the year ended December
31, 2017, we had revenue of $26,082,417, as compared to revenue of $5,233,145 for the year ended December 31, 2016, an increase
of $20,849,272, or 398.4%, which was primarily due to the increase in sales to our advertising clients as we deployed more Wi-Fi
equipment on more trains and caused the growth of the users of Luokuang APP.
Cost of revenue
Our cost of revenue
primarily consists of depreciation, labor cost, Wi-Fi equipment installation fees, data charges, annual payments to local railway
bureau, other overhead costs.
Cost of revenue for
the year ended December 31, 2017 was $5,547,779, representing a decrease of $767,725 or 12.2% as compared to $6,315,504 for the
year ended December 31, 2016. The decrease was primarily attributable to the decrease in labor cost as a result of our cost control
and a decrease in the number of maintenance staff. Additionally, data charges decreased as train passengers prefer using their
mobile data, leading to a decrease in 3G and 4G data.
Selling and marketing expense
Our selling and marketing
expense mainly include promotional and marketing expenses and compensation for our sales and marketing personnel.
Selling expense totaled
$23,908,733 for the year ended December 31, 2017, as compared to $6,209,804 for the year ended December 31, 2016, an increase of
$17,698,929 or 285.0%. The increase was primarily attributable to the increase in promotional and marketing activities conducted
by the Company to promote the Luokuang APP to attract more off-train users.
General and administrative expense
Our general and administrative
expenses consist primarily of salaries and benefits for our general and administrative personnel, rent, fees and expenses for
legal, accounting and other professional services
General and administrative
expense totaled $2,451,249 for the year ended December 31, 2017, as compared to $2,108,854 for the year ended December 31, 2016,
an increase of $342,395 or 16.2%.
Research and development expenses.
Research and development
expenses primarily consist of salaries and benefits for research and development personnel.
Research and development expenses totaled
$1,046,198 for the year ended December 31, 2017, as compared to $2,882,202 for the year ended December 31, 2016, a decrease of
$1,836,004 or 63.7%. The decrease was primarily attributable to the Company reducing its expenses in research and development
temporarily as our products were quite stable.
Loss from operations
As a result of the
factors described above, for the year ended December 31, 2017, loss from operations amounted to $6,871,542, as compared to loss
from operations of $12,283,219 for the year ended December 31, 2016, a decrease of $5,411,677, or 44.1%.
Other income/expense
Other income/expense mainly include interest expense from loans, foreign currency gains/losses, and loss from
investment.
Net loss
As a result of the
factors described above, our net loss was $6,810,454 for the year ended December 31, 2017, compared to net loss of $13,049,031
for the year ended December 31, 2016, a decrease of $6,238,577 or 47.8%.
Foreign currency translation adjustment
Our reporting currency
is the U.S. dollar. The functional currency of our parent company and subsidiaries of LK Technology, MMB and Mobile Media is the
U.S. dollar and the functional currency of the Company’s subsidiaries incorporated in China is the Chinese Renminbi (“RMB”).
The financial statements of our subsidiaries incorporated in China are translated to U.S. dollars using period end rates of exchange
for assets and liabilities, and average rates of exchange (for the period) for revenue, costs, and expenses. Net gains and losses
resulting from foreign exchange transactions are included in the consolidated statements of operations and comprehensive loss.
As a result of foreign currency translations, which is a non-cash adjustment, we reported a foreign currency translation gain of
$90,671 for the year ended December 31, 2017, as compared to a foreign currency translation gain of $387,375 for the year ended
December 31, 2016. This non-cash gain had the effect of increasing/decreasing our reported comprehensive income/loss.
Comprehensive loss
As a result of our
foreign currency translation adjustment, we had comprehensive loss for the year ended December 31, 2017 of $6,719,783, compared
to comprehensive loss of $12,661,656 for the year ended December 31, 2016.
Critical accounting policies
The methods, estimates
and judgments we use in applying our most critical accounting policies have a significant impact on the results we report in our
financial statements. The SEC has defined the most critical accounting policies as the ones that are most important to the portrayal
of our financial condition and results and require us to make our most difficult and subjective judgments, often as a result of
the need to make estimates of matters that are inherently uncertain. Based on this definition, our most critical policies include
revenue recognition, impairment of long-lived assets and goodwill, allowance for doubtful accounts and valuation allowance for
deferred tax assets.
Below, we discuss these
policies further, as well as the estimates and judgments involved. We believe that our other policies either do not generally require
us to make estimates and judgments that are as difficult or as subjective, or it is less likely that they would have a material
impact on our reported financial condition and results of operations for a given period. For a discussion of all our significant
accounting policies, see footnote 2 to the Consolidated Financial Statements included elsewhere in this Annual Report.
Revenue recognition
Adoption of ASC Topic 606, “Revenue
from Contracts with Customers”
On January 1, 2018,
the Company adopted ASC Topic 606 using the modified retrospective method applied to those contracts which were not completed as
of January 1, 2018. Results for reporting periods beginning after December 31, 2017 are presented under Topic 606, while prior
period amounts are not adjusted and continue to be reported in accordance with our historic accounting under Topic 605. There was
no material effect from the adoption of ASC 606 to our financial statements.
Display-based online advertising services
The Company
provides display-based online advertising services to customers by integrating text description, image and video, and
displaying the advertisements in a prominent position of Luokuang mobile application on a cost-per-click basis. The customers
pay us only when a user clicks on an advertisement on the Luokuang mobile application. The Company recognizes revenue over
time because the customer receives and consumes the benefit of our advertising services throughout the contract period.
Software and services
The Company generates revenues primarily
in the form of sale of software license and provision of technology solution services. License fees include perpetual license fees,
term license fees and royalties. Technology services primarily consist of fees for providing technology solution services that
enable customers to gain real-time operational intelligence by harnessing the value of their data.
Revenue for the sale of software licenses
is recognized at the point in time when the control of the provided goods is provided to our customers.
Technology solution revenue is recognized over time, as the services are performed because the customer
receives and consumes the benefit of our performance throughout the contract period. Milestones with corresponding payment are
stated in the contracts with customers. We bill for the services we have performed when the milestones reached are accepted by
the customer in accordance with the terms of the contract. We recognize the revenues associated with these professional services
as we deliver each agreed portion of the services.
The Company does not offer credits or refunds
and therefore has not recorded any sales return allowance for any of the periods presented. Upon a periodic review of outstanding
accounts receivable, amounts that are deemed to be uncollectible are written off against the allowance for doubtful accounts. The
Company’s policy is to record revenues net of any applicable sales, use or excise taxes.
Impairment of long-lived assets
Long-lived assets other than goodwill are
included in impairment evaluations when events and circumstances exist that indicate the carrying value of these assets may not
be recoverable. In accordance with FASB ASC 360, Property, Plant and Equipment, the Company assesses the recoverability of the
carrying value of long-lived assets by first grouping its long-lived assets with other assets and liabilities at the lowest level
for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities (the asset group) and,
secondly, estimating the undiscounted future cash flows that are directly associated with and expected to arise from the use of
and eventual disposition of such asset group. If the carrying value of the asset group exceeds the estimated undiscounted cash
flows, the Company recognizes an impairment loss to the extent the carrying value of the long-lived asset exceeds its fair value.
The Company determines fair value through quoted market prices in active markets or, if quotations of market prices are unavailable,
through the performance of internal analysis using a discounted cash flow methodology or obtains external appraisals from independent
valuation firms. The undiscounted and discounted cash flow analyses are based on a number of estimates and assumptions, including
the expected period over which the asset will be utilized, projected future operating results of the asset group, discount rate
and long-term growth rate.
As of December 31, 2018 and 2017, the Company assessed the impairment of its long-lived assets and identified
impairment indications. For intangible assets, as the Company is not going to use a software system that purchased in 2014, an
impairment loss of $724,437 on intangible assets was recorded for the year ended December 31, 2018 ($nil for the years ended December
31, 2017 and 2016). For property plant and equipment, the Company recorded an impairment loss for Wi-Fi equipment that will not
be used of $1,228,362 ($nil for the year ended December 31, 2017 and 2016).
Impairment of goodwill
The Company assesses
goodwill for impairment in accordance with ASC 350-20, Intangibles—Goodwill and Other: Goodwill, which requires that goodwill
to be tested for impairment at the reporting unit level at least annually and more frequently upon the occurrence of certain events,
as defined by ASC 350-20.
The Company has the option to assess qualitative
factors first to determine whether it is necessary to perform the two-step test in accordance with ASC 350-20. If the Company believes,
as a result of the qualitative assessment, that it is more-likely-than-not that the fair value of the reporting unit is less than
its carrying amount, the two-step quantitative impairment test described below is required. Otherwise, no further testing is required.
In the qualitative assessment, the Company considers primary factors such as industry and market considerations, overall financial
performance of the reporting unit, and other specific information related to the operations. In performing the two-step quantitative
impairment test, the first step compares the carrying amount of the reporting unit to the fair value of the reporting unit based
on either quoted market prices of the ordinary shares or estimated fair value using a combination of the income approach and the
market approach. If the fair value of the reporting unit exceeds the carrying value of the reporting unit, goodwill is not impaired
and we are not required to perform further testing. If the carrying value of the reporting unit exceeds the fair value of the reporting
unit, then we must perform the second step of the impairment test in order to determine the implied fair value of the reporting
unit’s goodwill. The fair value of the reporting unit is allocated to its assets and liabilities in a manner similar to a
purchase price allocation in order to determine the implied fair value of the reporting unit goodwill. If the carrying amount of
the goodwill is greater than its implied fair value, the excess is recognized as an impairment loss.
In 2018, the Company performed a qualitative
assessment for goodwill. Based on the requirements of ASC350-20, the Company evaluated all relevant factors, including but not
limited to macroeconomic conditions, industry and market conditions, financial performance. The Company weighed all factors in
their entirety and concluded that it was not more-likely-than-not the fair value was less than the carrying amount of the reporting
unit, and further impairment testing on goodwill was unnecessary as of December 31, 2018 and 2017.
Accounts receivable, net of allowance
Accounts receivable are recognized and
carried at the original invoiced amount less an allowance for any potential uncollectible amounts. An estimate for doubtful debts
is made when collection of the full amount is no longer probable. Bad debts are written off as incurred. The Company generally
does not require collateral from its customers.
The Company maintains allowances for doubtful
accounts for estimated losses resulting from the failure of customers to make payments on time. The Company reviews the accounts
receivable on a periodic basis and makes specific allowances when there is doubt as to the collectability of individual balances.
In evaluating the collectability of individual receivable balances, the Company considers many factors, including the age of the
balance, the customer’s payment history, its current credit-worthiness and current economic trends.
Income taxes
Deferred income taxes are recognized for
temporary differences between the tax bases of assets and liabilities and their reported amounts in the financial statements, net
operating loss carry forwards and credits, by applying enacted statutory tax rates applicable to future years. Deferred tax assets
are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of
the deferred tax assets will not be realized. Current income taxes are provided for in accordance with the laws and regulations
applicable to the Company as enacted by the relevant tax authorities.
The impact of an uncertain income tax position
on the income tax return must be recognized at the largest amount that is more-likely-than not to be sustained upon audit by the
relevant tax authorities. An uncertain income tax position will not be recognized if it has less than a 50% likelihood of being
sustained. Additionally, the Company classifies the interest and penalties, if any, as a component of income tax expense. For years
ended December 31, 2018, 2017 and 2016, the Company did not have any material interest or penalties associated with tax positions
nor did the Company have any significant unrecognized uncertain tax positions.
Recent accounting pronouncements
In February 2016, the
FASB issued ASU No. 2016-02, “Leases (Subtopic 842).” The new guidance requires lessees to recognize assets and liabilities
arising from leases as well as extensive quantitative and qualitative disclosures. A lessee will need to recognize on its balance
sheet a right-of-use asset and a lease liability for the majority of its leases (other than leases that meet the definition of
a short-term lease). The lease liabilities will be equal to the present value of lease payments. The right-of-use asset will be
measured at the lease liability amount, adjusted for lease prepayment, lease incentives received and the lessee’s initial
direct costs. The standard is effective for fiscal years beginning after December 15, 2018, and interim periods within those fiscal
years. Early adoption is permitted. ASU 2016-02 is required to be applied using the modified retrospective approach for all leases
existing as of the effective date and provides for certain practical expedients. The Company will adopt the new standard on January
1, 2019 using the modified retrospective approach. Due to its immaterial lease commitments at December 31, 2018, the Company expect
the impact of the standard adoption to increase its assets and liabilities within its consolidated balance sheet. These increases
will result from the recognition of its existing right-of-use and liabilities required by ASU 2016-02.
In June 2016, the FASB
issued ASU 2016-13, “Financial Instruments—Credit Losses (Topic 326), Measurement of Credit Losses on Financial Instruments”,
which will be effective for fiscal years beginning after December 15, 2019, including interim periods within those fiscal years.
The guidance replaces the incurred loss impairment methodology with an expected credit loss model for which a company recognizes
an allowance based on the estimate of expected credit loss. The Company is currently evaluating the impact of adopting this standard
on its consolidated financial statements.
In January 2017, the
FASB issued ASU 2017-04, “Intangibles—Goodwill and Other (Topic 350): simplifying the test for goodwill impairment”,
the guidance removes Step 2 of the goodwill impairment test, which requires a hypothetical purchase price allocation. Goodwill
impairment will now be the amount by which a reporting unit’s carrying value exceeds its fair value, not the difference between
the fair value and carrying amount of goodwill which was the step 2 test before. The ASU should be adopted on a prospective basis
for the annual or any interim goodwill impairment tests beginning after December 15, 2019. Early adoption is permitted for interim
or annual goodwill impairment tests performed on testing dates after January 1, 2017. The Company is currently evaluating the impact
of adopting this standard on its consolidated financial statements.
B.
LIQUIDITY AND CAPITAL RESOURCES
Liquidity is the ability
of a company to generate funds to support its current and future operations, satisfy its obligations and otherwise operate on
an ongoing basis. We historically relied on cash flow provided by operations and financing to supplement our working capital.
At December 31, 2018 and 2017, we had cash balances of approximately $1,192,218 and $72,379, respectively. The significant portion
of these funds are located in financial institutions located in the PRC and will continue to be indefinitely reinvested in our
operations in the PRC.
The following table
sets forth a summary of changes in our working capital from December 31, 2017 to December 31, 2018:
|
|
|
|
|
|
|
|
December 31, 2017 to
December 31, 2018
|
|
|
|
December 31,
2018
|
|
|
December 31,
2017
|
|
|
Change
|
|
|
Percentage
Change
|
|
Working capital deficit:
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
$
|
31,538,510
|
|
|
$
|
23,939,441
|
|
|
$
|
7,599,069
|
|
|
|
31.7
|
%
|
Total current liabilities
|
|
|
33,733,887
|
|
|
|
25,311,113
|
|
|
|
8,422,774
|
|
|
|
33.3
|
%
|
Working capital deficit:
|
|
$
|
(2,195,377
|
)
|
|
$
|
(1,371,672
|
)
|
|
$
|
(823,705
|
)
|
|
|
60.1
|
%
|
Our working capital deficit increased by $823,705 to working capital deficit of $2,195,377 at December
31, 2018 from working capital deficit of $1,371,672 at December 31, 2017. This increase in working capital deficit is primarily
attributable to a decrease in amounts due from related party of approximately $6,825,000, an increase in accrued liabilities and
other payables of approximately $11,751,000, which was mainly due to the increase of the advertising payable, offset by an increase
in accounts receivable of approximately $12,932,000, an increase in other receivables of approximately $372,000, and a decrease
in accounts payable of approximately $2,174,000.
We intend to meet the cash requirements for the next 12 months from the issuance date of this report through
a combination of debt and equity financing such as by way of private placements.
Cash flows for the year ended December
31, 2018 compared to the year ended December 31, 2017
The following summarizes
the key components of our cash flows for the years ended December 31, 2018 and 2017:
|
|
Year Ended December 31,
|
|
|
|
2018
|
|
|
2017
|
|
Net cash used in operating activities
|
|
$
|
(6,924,876
|
)
|
|
$
|
(8,973,695
|
)
|
Net cash provided by investing activities
|
|
|
1,184,468
|
|
|
|
17,253
|
|
Net cash provided by financing activities
|
|
|
6,874,994
|
|
|
|
8,938,290
|
|
Effect of foreign exchange rate changes
|
|
|
(14,747
|
)
|
|
|
6,688
|
|
Net increase (decrease) in cash
|
|
$
|
1,119,839
|
|
|
$
|
(11,464
|
)
|
Net cash flow used
in operating activities was $6,924,876 for the year ended December 31, 2018 as compared to net cash flow used in operating activities
was $8,973,695 for the year ended December 31, 2017, a decrease of $2,048,819.
Net cash flow used in operating activities for the year ended December 31, 2018 primarily reflected our
net loss of approximately $11,927,000, and the add-back of non-cash items, mainly consisting of depreciation and amortization of
approximately $5,121,000, allowance for doubtful receivables of approximately $1,845,000, bad debts written off of approximately
$944,000 impairment of intangible assets of approximately $724,000, impairment of PPE of approximately $1,228,000, exchange difference
of approximately $1,339,000, and changes in operating assets and liabilities primarily consisting of an increase in accounts receivable
of approximately $16,319,000, a decrease in deferred revenue of approximately $963,000, and a decrease in accounts payable of approximately
$2,109,000, offset by a decrease in other receivables and prepayment of approximately $2,433,000 and an increase in accrued liabilities
and other payables of approximately $10,684,000.
Net cash flow used
in operating activities for the year ended December 31, 2017 primarily reflected our net loss of approximately $6,810,000, and
the add-back of non-cash items, mainly consisting of depreciation and amortization of approximately $3,316,000, loss on disposal
of property and equipment of approximately $115,000, allowance for doubtful accounts of approximately $445,000, exchange difference
of approximately $906,000 and changes in operating assets and liabilities primarily consisting of an increase in accounts receivable
of approximately $7,934,000, an increase in other receivables and prepayment of approximately $2,203,000 and a decrease in accounts
payable of approximately $1,674,000, offset by an increase in accrued liabilities and other payables of approximately $4,732,000
and an increase in deferred revenue of approximately $1,945,000.
Net cash flow
provided by investing activities was $1,184,468 for the year ended December 31, 2018 as compared to $17,253 for the year
ended December 31, 2017. During the year ended December 31, 2018, we made payments for the purchase of property, plant and
equipment of approximately $33,000, offset by proceeds received from disposal of deposits of approximately $604,000 and cash
received from acquisition subsidiaries of approximately $613,000. During the year ended December 31, 2017, we made payments
for the purchase of property and equipment of approximately $13,000, offset by proceeds from disposal of property and
equipment of approximately $30,000.
Net cash flow provided by financing activities was $6,874,994 for the year ended December 31, 2018 as compared
to net cash flow provided by financing activities of $8,938,290 for the year ended December 31, 2017. During the year ended December
31, 2018, we received advances from related parties of approximately $6,875,000. During the year ended December 31, 2017, we received
advances from related parties of approximately $8,938,000.
C. RESEARCH
AND DEVELOPMENT, PATENTS AND LICENSES, ETC.
The discussions of
our research and development activities were contained in “Item 4. Information about our Company – B. Business
Overview – Research and Development” and “Item 5. Operating and Financial Review and Prospects –
A. Operating Results – Operating Expenses – Research and Development Expenses” are incorporated herein by reference. In
the years ended December 31, 2018, 2017 and 2016, we spent $3,478,570, $1,046,198 and $2,882,202, respectively, on research and
development activities.
D. TREND INFORMATION.
Industry and Market
Outlook
China has awarded
licenses to mobile phone companies to provide the superfast 4G network to customers. The licenses, which are designed to give
mobile phone users faster access to services, were granted by the government to China Mobile, China Unicom Hong Kong and China
Telecom. Since the grants, China Mobile has offered 4G to subscribers from December 18, 2013. China Unicom and China Telecom,
the country’s other two major carriers, also offer 4G wireless. The number of China Mobile 4G customers has exceeded 900
million by the end of October in 2017. The move greatly bolstered business for telecom equipment makers and a range of other companies.
Under China’s
12th Five-Year Plan, a key priority is for China to transition from “Made in China” to “Designed in China.”
In order to achieve this goal, the government plans to heavily invest in science and technology education and R&D so as to
further develop China’s intellectual property rights system and support “Next-Generation IT” as a Strategic
Emerging Industry (SEI). Additionally, China plans to upgrade the technological capabilities of private and public services, including
“triple play” services (the convergence of telecom, broadcasting and Internet networks), ecommerce, and e-government
and statistics systems. Furthermore, the government plans to invest in R&D of the “Internet of things” and cloud
computing, and develop digital and virtual technologies.
E. OFF-BALANCE
SHEET ARRANGEMENTS
We have not entered
into any financial guarantees or other commitments to guarantee the payment obligations of any third parties. We have not entered
into any derivative contracts that are indexed to our shares and classified as shareholders’ equity, or that are not reflected
in our consolidated financial statements. We do not have any retained or contingent interest in assets transferred to an unconsolidated
entity that serves as credit, liquidity or market risk support to such entity. We do not have any variable interest in any unconsolidated
entity that provides financing, liquidity, market risk or credit support to us or engages in leasing, hedging or research and development
services with us.
F. TABULAR
DISCLOSURE OF CONTRACTUAL OBLIGATIONS
Contractual obligations
We have certain fixed
contractual obligations and commitments that include future estimated payments. Changes in our business needs, cancellation provisions,
changing interest rates, and other factors may result in actual payments differing from the estimates. We cannot provide certainty
regarding the timing and amounts of payments. We have presented below a summary of the most significant assumptions used in our
determination of amounts presented in the tables, in order to assist in the review of this information within the context of our
consolidated financial position, results of operations, and cash flows.
The following tables
summarize our contractual obligations as of December 31, 2018 (dollars in thousands), and the effect these obligations are expected
to have on our liquidity and cash flows in future periods.
|
|
Payments Due by Period
|
|
Contractual obligations:
|
|
Total
|
|
|
Less than 1 year
|
|
|
1-2 years
|
|
|
3-5 years
|
|
|
More than
5 years
|
|
Accounts payable
|
|
$
|
758
|
|
|
$
|
758
|
|
|
$
|
-
|
|
|
$
|
-
|
|
|
$
|
-
|
|
Accrued liabilities and other payables
|
|
|
23,469
|
|
|
|
23,224
|
|
|
|
245
|
|
|
|
-
|
|
|
|
-
|
|
Operating lease
|
|
|
268
|
|
|
|
268
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
Total
|
|
$
|
24,495
|
|
|
$
|
24,250
|
|
|
$
|
245
|
|
|
$
|
-
|
|
|
$
|
-
|
|
ITEM 6. DIRECTORS,
SENIOR MANAGEMENT AND EMPLOYEES.
A. DIRECTORS
AND SENIOR MANAGEMENT.
Executive Officers
and Directors
The following table
sets forth the names and ages as of the date of this annual report of each of our executive officers and directors:
Name
|
|
Age
|
|
Position
|
Xuesong Song
|
|
50
|
|
Chief Executive
Officer, Chairman and Director
|
Dongpu Zhang
|
|
50
|
|
President
|
Baomin Li
|
|
49
|
|
Chief Technical Officer
|
Jie Yu
|
|
34
|
|
Chief Financial
Officer
|
Kegang Peng
|
|
46
|
|
Vice President and
Director
|
Chuang Tao
|
|
51
|
|
Director (Independent)
|
Dennis Galgano (1)(2)
|
|
70
|
|
Director (Independent)
|
Jin Shi (1)(2)
|
|
49
|
|
Director (Independent)
|
Jiming Ha (1)(3)
|
|
56
|
|
Director (Independent)
|
Zhihao Xu (3)
|
|
42
|
|
Director (Independent)
|
(1)
|
Member of the Audit
Committee.
|
|
|
(2)
|
Member of the Compensation
Committee.
|
|
|
(3)
|
Member of the Nominating
and Corporate Governance Committee.
|
Set forth below is
biographical information concerning our executive officers and directors.
Xuesong Song
is a co-founder of C Media Limited and served as its Chairman of the board of directors and Chief Executive Officer from
2012 until the consummation of the AEA. From February 2014 through April 2017, Mr. Song served as a director of Seven Stars Cloud
Group, Inc. (NASDAQ: SSC) and from January 2013 through February 2015, Mr. Song served as a director of Pingtan Marine Enterprise
Ltd. (NASDAQ: PME). From May 2006 through January 2009, Mr. Song served as the Chairman of the Board of ChinaGrowth North Acquisition
Corporation, a special purpose acquisition company, which acquired UIB Group Limited in January 2009, in which he remains a director.
Mr. Song has been a principal of Chum Capital Group Limited since August 2001, a merchant banking firm that invests in growth
Chinese companies and advises them in financings, mergers & acquisitions and restructurings, and Chief Executive Officer of
Beijing Chum Investment Co., Ltd. since December 2001. Mr. Song has been a director of Mobile Vision Communication Ltd. since
July 2004. Mr. Song received a Master’s of Business Administration degree from Oklahoma City/Tianjin Program.
Dongpu Zhang
was appointed as the President of the Company effective on August 25, 2018. Mr. Dongpu Zhang has served as the General
Manager of Superengine Graphics Software Technology Development (Suzhou) Co., Ltd. (“Superengine Suzhou”) and the
Chief Executive Officer of Superengine Holding Limited since September 2016. From February, 2014 to August, 2016, Mr. Zhang served
as vice president of Industrial Development Group under China Fortune Land Development Co., Ltd. From March, 2009 to February,
2014, Mr. Zhang served as the vice president of Aerospace Science and Technology Holding Group Co., Ltd. Mr. Zhang receive his
Master Degree of Computer Science from Harbin Institute of Technology in 1994 and his Bachelor Degree of information system from
Changsha Institute of technology in 1991.
Baomin Li
serves as the chief technology officer of the Company
since February 1, 2019. From 2017 to 2019, Mr. Li served at Amazon as Sr. Software Development Manager, in charge of Amazon’s
advertising targeting systems, overseeing infrastructure, data ingestion & modeling, and targeting products utilizing comprehensive
Amazon’s ecommerce data. Prior to Amazon, Mr. Li served as the chief technology officer at C Media Limited from 2016 to
2017. Mr. Li worked at CreditEase Inc. as VP of Engineering in the Big Data Innovation Center from 2014 to 2016, and at Google
as Engineering Manager in advertising quality from 2013 to 2014. From 1999 to 2012, Mr. Li worked at Microsoft Corporation and
lastly served as Senior Development Manager. Mr. Li graduated from Peking University with a Bachelor’s Degree in Mechanics
and a Master’s Degree in Applied Mathematics, and from University of Missouri with a Master’s Degree in Computer Science.
Jie Yu
served
as the chief financial officer of C Media Limited from January 2018 until the consummation of the asset exchange transactions.
From June 2016 to January 2018, Mr. Yu served as chief financial officer and secretary of the board of directors of MTI Environment
Group Limited. Prior to joining MTI, Mr. Yu served as the senior manager at DA HUA CPA from November 2012 to May 2016. Previously,
Mr. Yu served as the manager at Crowe Horwath (Hong Kong) CPA. Mr. Yu holds a bachelor degree in accounting and finance from University
of Auckland and postgraduate diploma in accounting from University of Auckland.
Kegang Peng
served as the Vice Chairman of the board of directors C Media Limited from October 2014 to the consummation of the asset
exchange transactions, and is now a member of the Company’s board of directors. Previously, from 2012 to 2014, Mr. Peng
was Chairman of the board and founder of Jiangsu Suqian Jinghaiboyuan Information and Technology Co., Ltd. Mr. Peng studied at
Beijing University of Aeronautics and Astronautics majoring computer and application.
Chuang (Vincent)
Tao
was appointed as a member of the Board effective on August 25, 2018. Dr. Tao was the Chairman of Superengine Suzhou
from 2014 to 2017. Dr. Tao has been the president of the Seasky Angel Investment Alliance of Shanghai since 2015. Dr. Tao received
his Bachelor Degree of geographic information and telemetry from Wuhan University in China in 1990 and received his Ph.D. from
University of Calgary, Canada in 1997.
Dennis Galgano
was appointed as a director of the Company following the consummation of the asset exchange agreement. He was a registered
consultant with Morgan Joseph Triartisan LLC from November 2016 until October 2017, and previously served as vice Chairman and
head of international investment banking for Morgan Joseph Triartisan LLC, which is a registered broker dealer engaged in the
investment banking and financial advisory industry. Mr. Galgano received a B.S. degree in Chemistry from St. John’s University
and an M.B.A. from The Wharton School in 1972.
Jin Shi
was
appointed as a director of the Company following the consummation of the asset exchange transactions. Mr. Shi has served as the
managing partner of Chum Capital Group, a merchant bank focused on helping Chinese growth companies to access global capital,
since January 2013. Mr. Shi has also served as a director of Seven Stars Cloud Group, Inc. (NASDAQ: SSC), a premium video on demand
service provider, since January 2014, and joined the audit committee of its board of directors in March 2016. He also served as
a director and member of the audit committee of Pingtan Marine Enterprise, Ltd. (NASDAQ: PME), a marine enterprise group primarily
engaged in ocean fishing through its subsidiaries. Mr. Shi received an EMBA degree from the Guanghua Management School of Beijing
University, and a Bachelor’s degree of science in Chemical Engineering from Tianjin University.
Jiming Ha
was
appointed as a director of the Company following the consummation of the asset exchange agreement, and has also served as a senior
research fellow for the China Finance 40 Forum since March 1, 2018, and previously served as a managing director of Goldman Sachs
from January 2017 to April 2017. Mr. Ha served as a vice Chairman and chief investment strategist of the Investment Strategy Group
for Private Wealth Management at Goldman Sachs from 2010 to January 2017. Mr. Ha holds a PhD in Economics from the University
of Kansas and Master’s and Bachelor’s degrees of science from Fudan University.
Zhihao Xu
was appointed as a director of the Company following the consummation of the asset exchange transactions. Mr. Xu has served as
the Chief Executive Officer of Geely Group Co., Ltd., in Hangzhou, China, since December 2017, and previously served as the Chairman
and Chief Executive Officer of Beijing Dingchengrenhe Investment Co., Ltd., a funds management company, from January 2017 to December
2017. Mr. Xu served as the Chairman of president of HNA USOLV CO., LTD., and the chief innovation officer of HNA Logistics Group
from January 2014 to December 2016, and prior to that as the Chairman of Gopay Innovation Technology Co. Ltd., an online payment
system operator supporting online money transfers, from April 2012 to January 2014. Mr. Xu graduated from the Business School
of Renmin University of China and from the Wudaokou Finance College of Tsinghua University with a fund qualification certificate
and securities qualification certificate.
B. COMPENSATION.
Compensation of
Directors and Executive Officers
For the fiscal
year ended December 31, 2018, we paid an aggregate of approximately $53,885 in cash compensation to our executive officers
and accrued an aggregate of approximately $67,629 of compensation to our independent directors for serving on our board of
directors.
Other than non-employee
directors, we do not intend to compensate directors for serving on our board of directors or any of its committees. We do, however,
intend to reimburse each member of our board of directors for out-of-pocket expenses incurred by each director in connection with
attending meetings of the board of directors and its committees.
Administration
The Incentive Plan
is administered by our board of directors, or at the discretion of the board, by our compensation committee. Our board of directors
has delegated authority to our compensation committee to administer the Incentive Plan. Subject to the terms of the Incentive
Plan, the compensation committee may select participants to receive awards, determine the types of awards and terms and conditions
of awards, and interpret provisions of the Incentive Plan.
The ordinary shares
issued or to be issued under the Incentive Plan consist of authorized but unissued shares. If any ordinary shares covered by an
award are not purchased or are forfeited, or if an award otherwise terminates without delivery of any ordinary shares, then the
number of ordinary shares counted against the aggregate number of ordinary shares available under the plan with respect to the
award will, to the extent of any such forfeiture or termination, again be available for making awards under the Incentive Plan.
Eligibility
Awards may be made
under the Incentive Plan to our employees, officers, directors, consultants or advisers or to any of our affiliates, and to any
other individual whose participation in the Incentive Plan is determined to be in our best interests by our board of directors.
Amendment or Termination of the
Plan
Our board of directors
may terminate or amend the Incentive Plan at any time and for any reason. No amendment, however, may adversely impair the rights
of grantees with respect to outstanding awards. The Incentive Plan has a term of ten years. Amendments will be submitted for shareholder
approval to the extent required by applicable stock exchange listing requirements or other applicable laws.
Options
The Incentive Plan
permits the granting of options to purchase ordinary shares intended to qualify as incentive share options under the Internal
Revenue Code and share options that do not qualify as incentive share options, or non-qualified share options.
The exercise price of each share option may not be less than 100% of the fair market value of our ordinary
shares representing ordinary shares on the date of grant. In the case of certain 10% shareholders who receive incentive share options,
the exercise price may not be less than 110% of the fair market value of our ordinary shares representing ordinary shares on the
date of grant. An exception to these requirements is made for options that we grant in substitution for options held by employees
of companies that we acquire. In such a case the exercise price is adjusted to preserve the economic value of the employee’s
share option from his or her former employer.
The term of each share
option is fixed by the compensation committee and may not exceed ten years from the date of grant. The compensation committee
determines at what time or times each option may be exercised and the period of time, if any, after retirement, death, disability
or termination of employment during which options may be exercised.
Options may be made
exercisable in installments. The award agreement provides the vesting of the options. Exercisability of options may be accelerated
by the compensation committee.
In general, an optionee
may pay the exercise price of an option by (1) cash or check (in U.S. dollars or Renminbi or other local currency as approved
by the compensation committee), (2) ordinary shares held for such period of time as may be required by the compensation committee,
(3) delivery of a notice of a market order with a broker with respect to ordinary shares then issuable upon exercise of an option,
and that the broker has been directed to pay us a sufficient portion of net proceeds of the sale in satisfaction of the exercise
price, provided that payment of such proceeds is then made to us upon settlement of such sale, (4) other property acceptable to
the compensation committee with a fair market value equal to the exercise price, (5) cashless exercise or (6) any combination
of the foregoing.
Share options granted
under the Incentive Plan may not be sold, transferred, pledged, or assigned other than by will or under applicable laws of descent
and distribution. However, we may permit limited transfers of non-qualified options for the benefit of immediate family members
of grantees to help with estate planning concerns or pursuant to a domestic relations order in settlement of marital property
rights.
Other Awards
The compensation committee
may also award under the Incentive Plan:
|
1.
|
ordinary shares
subject to restrictions;
|
|
|
|
|
2.
|
deferred ordinary
shares, credited as deferred ordinary share units, but ultimately payable in the form of unrestricted ordinary shares in accordance
with the terms of the grant or with the participant’s deferral election;
|
|
|
|
|
3.
|
ordinary share units
subject to restrictions;
|
|
|
|
|
4.
|
unrestricted ordinary
shares, which are ordinary shares issued at no cost or for a purchase price determined by the compensation committee which
are free from any restrictions under the 2011 Omnibus Incentive Plan;
|
|
|
|
|
5.
|
dividend equivalent
rights entitling the grantee to receive credits for dividends that would be paid if the grantee had held a specified number
of ordinary shares; or
|
|
6.
|
a right to receive
a number of ordinary shares or, in the discretion of the compensation committee, an amount in cash or a combination of ordinary
shares and cash, based on the increase in the fair market value of the ADSs representing ordinary shares underlying the right
during a stated period specified by the compensation committee.
|
Effect of Certain Corporate Transactions
Certain change of
control transactions involving us may cause awards granted under the Incentive Plan to vest, unless the awards are continued or
substituted for by the surviving company in connection with the corporate transaction.
Unless otherwise provided
in the appropriate option agreement on the date of grant or provided by our board of directors thereafter with the consent of
the grantee, options granted under the Incentive Plan become exercisable in full following (1) a dissolution of our company or
a merger, consolidation or reorganization of our company with one or more other entities in which we are not the surviving entity,
(2) a sale of substantially all of our assets to another person or entity, or (3) any transaction (including without limitation
a merger or reorganization in which we are the surviving entity) which results in any person or entity owning 50% or more of the
combined voting power of all classes of our shares.
Adjustments for Dividends and Similar
Events
The compensation committee
will make appropriate adjustments in outstanding awards and the number of ordinary shares available for issuance under the Incentive
Plan, including the individual limitations on awards, to reflect ordinary share dividends, stock splits and other similar events.
C. BOARD
PRACTICES.
Board of Directors
Our board of directors consists of seven members being Messrs. Xuesong Song, Kegang Peng, Dennis Galgano,
Jin Shi, Jiming Ha, Chuang Tao and Zhihao Xu. Our directors hold office until our annual meeting of shareholders, where their successors
will be duly elected and qualified, or until the directors’ death, resignation or removal, whichever is earlier. Our directors
are subject to a four-year term of office and hold office until their resignation, death or incapacity or until their respective
successors have been elected and qualified in accordance with our fourth amended and restated memorandum of association and articles
of association. A director will be removed from office if, among other things, the director (1) becomes bankrupt, (2) dies or becomes
of unsound mind, or (3) is absent from meetings of our board of directors for six consecutive months without leave and our board
of directors resolves that the office is vacated. A director is not entitled to any special benefits upon termination of service
with the company.
Director Independence
Our board of directors
consists of seven members; Messrs. Dennis Galgano, Jin Shi, Jiming Ha, Chuang Tao and Zhihao Xu have been determined by us to
be independent directors within the meaning of the independent director guidelines of the NASDAQ Corporate Governance Rules (the
“NASDAQ Rules”).
Committees of Our Board of Directors
To enhance our corporate
governance, we established three committees under our board of directors: an audit committee, a compensation committee, and a
nominating and corporate governance committee. We have adopted a charter for each of these committees. The committees have the
following functions and members.
Audit Committee
Our audit committee
reports to our board of directors regarding the appointment of our independent public accountants, the scope and results of our
annual audits, compliance with our accounting and financial policies and management’s procedures and policies relating to
the adequacy of our internal accounting controls. Our audit committee consists of Messrs. Dennis Galgano, Jin Shi, and Jiming
Ha. Mr. Galgano, having accounting and financial management expertise, serves as the Chairman of the audit committee and is an
“audit committee financial expert” as defined by the rules and regulations of the SEC. Our board of directors has
determined that each of these persons meet the definition of an “independent director” under the applicable NASDAQ
Rules and under Rule 10A-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Our audit committee
is responsible for, among other things:
|
●
|
the appointment,
evaluation, compensation, oversight and termination of the work of our independent auditor (including resolution of disagreements
between management and the independent auditor regarding financial reporting);
|
|
●
|
an annual performance
evaluation of the audit committee;
|
|
●
|
establishing procedures
for the receipt, retention and treatment of complaints regarding accounting, internal accounting controls, auditing matters
or potential violations of law, and the confidential, anonymous submission by our employees of concerns regarding questionable
accounting or auditing matters or potential violations of law;
|
|
●
|
ensuring that it
receives an annual report from our independent auditor describing our internal control procedures and any steps taken to deal
with material control deficiencies and attesting to the auditor’s independence and describing all relationships between
the auditor and us;
|
|
●
|
reviewing our annual
audited financial statements and quarterly financial statements with management and our independent auditor;
|
|
●
|
reviewing and approving
all proposed related party transactions;
|
|
●
|
reviewing our policies
with respect to risk assessment and risk management;
|
|
●
|
meeting separately
and periodically with management and our independent auditor; and
|
|
●
|
reporting regularly
to our board of directors.
|
Compensation Committee
Our compensation committee
assists the board of directors in reviewing and approving the compensation structure of our directors and executive officers,
including all forms of compensation to be provided to our directors and executive officers. In addition, the compensation committee
reviews share compensation arrangements for all of our other employees. Members of the compensation committee are not prohibited
from direct involvement in determining their own compensation. Our Chief Executive Officer is not permitted to be present at any
committee meeting during which his or her compensation is deliberated. Our compensation committee consists of Dennis Galgano and
Jin Shi, with Mr. Shi serving as the Chairman of the compensation committee. Our board of directors has determined that each of
these persons meet the definition of “independent director” under the applicable requirements of the NASDAQ Rules.
Our compensation committee
is responsible for, among other things:
|
●
|
reviewing and approving
corporate goals and objectives relevant to the compensation of our Chief Executive Officer, evaluating the performance of
our Chief Executive Officer in light of those goals and objectives and setting the compensation level of our Chief Executive
Officer based on this evaluation;
|
|
●
|
reviewing and making
recommendations to the board with respect to the compensation of our executives, incentive compensation and equity-based plans
that are subject to board approval; and
|
|
●
|
providing annual
performance evaluations of the compensation committee.
|
Nominating and Corporate Governance
Committee
Our nominating and corporate governance committee assists the board of directors in identifying and selecting
or recommending individuals qualified to become our directors, developing and recommending corporate governance principles and
overseeing the evaluation of our board of directors and management. Our nominating and corporate governance committee consists
of Jiming Ha and Zhihao Xu, with Mr. Ha serving as the Chairman of the nominating and corporate governance committee. Our board
of directors has determined that each of these persons meet the definition of “independent director” under the applicable
requirements of the NASDAQ Rules.
Our nominating and
corporate governance committee is responsible for, among other things:
|
●
|
selecting and recommending
to our board nominees for election or re-election to our board, or for appointment to fill any vacancy;
|
|
●
|
reviewing annually
with our board the current composition of the board of directors with regards to characteristics such as independence, age,
skills, experience and availability of service to us;
|
|
●
|
selecting and recommending
to our board the names of directors to serve as members of the audit committee and the compensation committee, as well as
the nominating and corporate governance committee itself; advising our board of directors periodically with regards to significant
developments in the law and practice of corporate governance as well as our compliance with applicable laws and regulations,
and making recommendations to our board of directors on all matters of corporate governance and on any remedial action to
be taken; and
|
|
●
|
monitoring compliance
with our code of business conduct and ethics, including reviewing the adequacy and effectiveness of our procedures to ensure
proper compliance.
|
Code of Business Conduct and Ethics
Our board of directors
adopted a code of business conduct and ethics applicable to our directors, officers and employees.
Duties of Directors
Under British Virgin
Islands law, our directors have a duty to act honestly, in good faith and with a view to our best interests. Our directors also
have a duty to exercise care, diligence and skills that a reasonably prudent person would exercise in comparable circumstances.
In fulfilling their duty of care to us, our directors must ensure compliance with our memorandum of association and articles of
association. We have the right to seek damages if a duty owed by our directors is breached.
The functions and
powers of our board of directors include, among others:
|
●
|
appointing officers
and determining the term of office of the officers;
|
|
●
|
authorizing the
payment of donations to religious, charitable, public or other bodies, clubs, funds or associations as deemed advisable;
|
|
●
|
exercising the borrowing
powers of the company and mortgaging the property of the company;
|
|
●
|
executing cheques,
promissory notes and other negotiable instruments on behalf of the company; and
|
|
●
|
maintaining or registering
a register of mortgages, charges or other encumbrances of the company.
|
Remuneration and Borrowing
The directors may
receive such remuneration as our board of directors may determine from time to time. Each director is entitled to be repaid or
prepaid all traveling, hotel and incidental expenses reasonably incurred or expected to be incurred in attending meetings of our
board of directors or committees of our board of directors or shareholder meetings or otherwise in connection with the discharge
of his or her duties as a director. The compensation committee will assist the directors in reviewing and approving the compensation
structure for the directors.
Our board of directors
may exercise all the powers of the company to borrow money and to mortgage or charge our undertakings and property or any part
thereof, to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability
or obligation of the company or of any third party.
Qualification
A director is not
required to hold shares as a qualification to office.
Limitation on Liability and Other Indemnification
Matters
British Virgin Islands
law does not limit the extent to which a company’s memorandum of association and 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 civil fraud or the consequences of committing a crime.
Under our memorandum
of association and articles of association, we may indemnify our directors, officers and liquidators against all expenses, including
legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred in connection with civil,
criminal, administrative or investigative proceedings to which they are party or are threatened to be made a party by reason of
their acting as our director, officer or liquidator. To be entitled to indemnification, these persons must have acted honestly
and in good faith with a view to the best interest of the company and, in the case of criminal proceedings, they must have had
no reasonable cause to believe their conduct was unlawful.
Compensation Committee Interlocks and
Insider Participation
None of the members
of our compensation committee is an officer or employee of our company. None of our executive officers currently serves, or in
the past year has served, as a member of the board of directors or compensation committee of any entity that has one or more executive
officers serving on our board of directors or compensation committee.
Employment Agreements
On August 19, 2018,
the Company entered into an Employment Agreement (the “Song Agreement”) with Mr. Xuesong Song, to serve as the Chief
Executive Officer of the Company for a four-year term, subject to renewal. Under the terms of the Song Agreement, Mr. Song will
receive no salary for his services but will be eligible for an annual cash bonus in the Board’s sole discretion.
On August 19, 2018,
the Company entered into an Employment Agreement (the “Yu Agreement”) with Mr. Jie Yu, to serve as the Chief Financial
Officer of the Company for a four-year term, subject to renewal. Under the terms of the Yu Agreement, Mr. Yu will receive an annual
salary of RMB700,000, and will be eligible for an annual cash bonus in the Board’s sole discretion.
D. EMPLOYEES.
As of December 31,
2018 and 2017, we had a total of 111 and 37 full-time employees, including 51 and 13 in research and development, 17 and 2 in
sales and marketing and the rest in a variety of other divisions, respectively. All of our employees are full-time employees.
None of our employees is currently represented by a union and/or collective bargaining agreements. We believe that we have good
relations with our employees and since our inception we have had no history of work stoppages or union organizing campaigns.
E. SHARE
OWNERSHIP.
The following table
provides information as to the beneficial ownership of our ordinary shares as of December 31, 2018, by the persons listed. Beneficial
ownership of shares is determined under the rules of the SEC and generally includes any shares over which a person exercises sole
or shared voting or investment power. For purposes of the following table, a person is deemed to have beneficial ownership of
any ordinary shares if such person has the right to acquire such shares within 60 days of December 31, 2018. For purposes of computing
the percentage of outstanding shares held by each person, any shares that such person has the right to acquire within 60 days
after of December 31, 2018 are deemed to be outstanding, but are not deemed to be outstanding for the purpose of computing the
percentage ownership of any other person. Except as otherwise noted, the persons named in the table have sole voting and investment
power with respect to all of the ordinary shares beneficially owned by them. Unless otherwise indicated, the address of each person
listed is c/o Luokung Technologies, LAB 32, SOHO 3Q, No 9, Guanghua Road, Chaoyang District, Beijing, People’s Republic
of China.
Percentage ownership of the ordinary shares in the following table is based on 199,317,558 ordinary shares
outstanding on December 31, 2018.
|
|
Number of shares
|
|
|
Percent of class
|
|
Directors and named executive officers
|
|
|
|
|
|
|
Xuesong Song, Chairman, Chief Executive Officer and Director (1)
|
|
|
38,156,430
|
|
|
|
19.14
|
%
|
Kegang Peng, Vice President and Director (2)
|
|
|
17,231,955
|
|
|
|
8.64
|
%
|
Dennis Galgano, Director
|
|
|
75,796
|
|
|
|
*
|
%
|
Jin Shi, Director (3)
|
|
|
1,278,420
|
|
|
|
*
|
%
|
Zhihao Xu, Director (4)
|
|
|
6,962,832
|
|
|
|
3.49
|
%
|
Dongpu Zhang, President (5)
|
|
|
2,321,792
|
|
|
|
1.16
|
%
|
Chuang Tao, Director (6)
|
|
|
1,221,996
|
|
|
|
*
|
%
|
Directors and executive officers as a group (10 persons)
|
|
|
67,249,221
|
|
|
|
33.74
|
%
|
(1)
|
Consists of (i) 4,030,882 shares owned directly by Charm Dragon International Limited, a British Virgin Islands company and (ii) 22,624,793 shares owned directly by Bravo First Development Limited, a British Virgin Islands company. Mr. Xuesong Song is the controlling shareholder of Bravo First Development Limited. Mr. Xuesong Song is the sole director of Charm Dragon International Limited. Mr. Xuesong Song also owns all 1,000,000 of the Company’s outstanding preferred shares, and each preferred share has the right to 399 votes at a meeting of the shareholders of the Company. Mr. Song therefore is the controlling shareholder of the Company.
|
|
(2)
|
Consists
of 17,231,955 shares owned directly by Plenty Prestige Enterprises Limited, a British
Virgin Islands company. Mr. Kegang Peng is the sole director of Plenty Prestige Enterprises
Limited.
|
|
(3)
|
Consists of 1,278,420 shares owned directly by Utmost Vantage Ventures Limited, a British Virgin Islands company.
These shares are held in a partnership and Mr. Shi serves as a general partner of the partnership on behalf of the partners and
therefore disclaims any beneficial ownership.
|
(4)
|
Consists of 6,962,832 shares directly owned by Geely Group Limited., a Chinese company. Mr. Zhihao Xu is the Chief Executive Officer of Geely Group Limited.
|
|
(5)
|
Consists
of 2,321,792 shares owned directly by Genoa Peak Limited, a British Virgin Islands company.
Mr. Dongpu Zhang controls Genoa Peak Limited.
|
|
(6)
|
Consists
of 1,221,996 shares owned directly by Globalearth Holdings Limited, a British Virgin
Islands company. Mr. Chuang Tao controls Globalearth Holdings Limited.
|
|
*
|
Represents
less than 1% of shares outstanding
|
ITEM 7. MAJOR SHAREHOLDERS
AND RELATED PARTY TRANSACTIONS.
A. MAJOR
SHAREHOLDERS
Please refer to Item
6.E “Directors, Senior Management and Employees — Share Ownership.”
To our knowledge,
(A) we are not directly or indirectly owned or controlled by (i) another corporation or (ii) any foreign government
and (B) there are no arrangements (including any announced or expected takeover bid), the operation of which may at a subsequent
date result in a change in our control.
The voting rights
of our major shareholders do not differ from the voting rights of other holders of the same class of shares.
B. RELATED
PARTY TRANSACTIONS. BUSINESS RELATIONSHIPS.
Our subsidiaries,
consolidated affiliated entities, and the subsidiaries of the consolidated affiliated entities have engaged, during the ordinary
course of business, in a number of customary transactions with each other. All of these inter-company balances have been eliminated
in consolidation.
As of December 31,
2018, we had amounts due from related parties, C Media Limited and Ya Tuo Ji International Consultancy (Beijing) Limited, in the
amounts of $4.7 million and $0.2 million, respectively. These amounts due from related parties are short term in nature, non-interest
bearing, unsecured and repayable on demand.
As of December 31,
2018, we had amounts due to related parties, Mr. Xuesong Song, our Chairman and Chief Executive Officer, Thumb Beijing Branch and
Vision Capital Profits Limited, in the amounts of $1.0 million, $0.6 million and $1.8 million, respectively. These amounts due
to related parties are short term in nature, non-interest bearing, unsecured and payable on demand.
Our Chairman and Chief Executive Officer, Mr. Xuesong Song, serves as an officer of Beijing Zhong Chuan
Shi Xun and is one of the legal owners of Beijing Zhong Chuan Shi Xun. The following table sets forth the relationship of Mr. Song
with Beijing Zhong Chuan Shi Xun:
Name
|
|
Relationship with
Luokung
Technology
|
|
Relationship with
Beijing
Zhong Chuan Shi Xun
|
|
Percentage
Ownership Interest in
Beijing
Zhong Chuan Shi Xun
|
|
Xuesong Song
|
|
Chief Executive Officer
|
|
Chief Executive Officer
|
|
|
61.82
|
%
|
C. INTERESTS
OF EXPERTS AND COUNSEL.
None.
ITEM 8. FINANCIAL INFORMATION.
A. CONSOLIDATED
STATEMENTS AND OTHER FINANCIAL INFORMATION.
See “Item 18. Financial
Statements.”
Legal Proceedings
To our knowledge,
other than as described below there are no material legal proceedings threatened against us. From time to time, we may be subject
to various claims and legal actions arising in the ordinary course of business. Following the consummation of the AEA, we became
successor in interest to the legal proceedings described below.
Lawsuit with Gansu Jinlun Culture Media
Co., Ltd.
On August 22, 2014,
Zhong Chuan Rui You and Gansu Jinlun Culture Media Co., Ltd. (“Gansu Jinlun”) signed a “Lanzhou Railway Bureau
Air-conditioned Train Wi-Fi Network System Advertising Operation Rights Agreement” for advertising on 72
trains of $1,467,880 (RMB9,604,633). Due to the dispute on the project implementation, Zhong Chuan Rui You did not pay
the advertising fee. On August 23, 2017, Gansu Jinlun filed a lawsuit with Gansu Intermediate People’s Court. On December
19, 2017, Gansu Intermediate People’s Court issued a verdict, ruling that Zhong Chuan Rui You settle the overdue advertising
fee.
Zhong Chuan Rui You
and Gansu Jinlun are negotiating a potential settlement to resume the contract. According to the legal counsel, it is probable
that the settlement will amount to approximately $459,000 (RMB3,000,000); therefore, this amount has been accrued in accounts
payable as at December 31, 2018.
Dividend Policy
We currently intend
to retain all of our available funds and future earnings for use in the operation and expansion of our business and do not anticipate
paying cash dividends in the foreseeable future. Under the terms of our Amended and Restated Memorandum and Articles of Association
the declaration and payment of any dividends in the future will be determined by our board of directors, in its discretion, and
will depend on a number of factors, including our earnings, capital requirements and overall financial condition and our ability
to receive dividends from our subsidiaries. If we pay any dividends, we will pay our ADS holders’ dividends with respect
to their underlying shares to the same extent as holders of our ordinary shares, subject to the terms of the deposit agreement,
including the fees and expenses payable thereunder. Cash dividends on our ordinary shares, if any, will be paid in U.S. dollars.
Our ability to receive
dividends from our subsidiaries may limit our ability to pay dividends on our ordinary shares. See Risk Factors – Risks
Related to Doing Business in China – Our holding company structure may limit the payment of dividends” and
“Item 10. Additional Information – D. Exchange Controls – Dividend Distribution”.
B. SIGNIFICANT
CHANGES.
N/A
ITEM 9. THE OFFER AND
LISTING
A. OFFER AND LISTING
DETAILS.
Markets and Share Price History
The primary trading market for our ordinary
shares, as represented by American Depositary Shares or ADSs is the NASDAQ Capital Market, where our shares have been listed and
traded under the symbol KONE since May 14, 2010. On August 17, 2018, we completed the transactions contemplated by the Asset Exchange
Agreement (“AEA”) with C Media Limited (“C Media”) entered into on January 25, 2018. On August 20, 2018,
we changed our name to Luokung Technology Corp., our American Depository Shares (“ADSs”) were voluntarily delisted
from the NASDAQ Capital Market on September 19, 2018 and on January 3, 2019 our ordinary shares started trading on NASDAQ under
the ticker symbol “LKCO”.
The table below sets
forth the high and low reported sales prices in dollars of our ordinary shares, which are represented by ADSs, as reported by
NASDAQ in the periods as indicated:
|
|
ADS
|
|
|
|
High
|
|
|
Low
|
|
Annual Highs and Lows (as of the fiscal year end 09/30
for the five most recent full financial years)*
|
|
|
|
|
|
|
2017
|
|
|
5.59
|
|
|
|
2.67
|
|
2016
|
|
|
10.2
|
|
|
|
1.62
|
|
|
|
|
|
|
|
|
|
|
Quarterly Highs
and Lows (for the two most recent full financial years and any subsequent period, based on calendar quarter end)*
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2018
|
|
|
|
|
|
|
|
|
Third Quarter
|
|
|
8.00
|
|
|
|
6.30
|
|
Second Quarter
|
|
|
8.82
|
|
|
|
4.25
|
|
First Quarter
|
|
|
6.40
|
|
|
|
3.70
|
|
|
|
|
|
|
|
|
|
|
2017
|
|
|
|
|
|
|
|
|
Fourth Quarter
|
|
|
5.59
|
|
|
|
2.91
|
|
Third Quarter
|
|
|
3.99
|
|
|
|
2.67
|
|
Second Quarter
|
|
|
4.06
|
|
|
|
3.07
|
|
First Quarter
|
|
|
5.15
|
|
|
|
2.83
|
|
|
|
|
|
|
|
|
|
|
2016
|
|
|
|
|
|
|
|
|
Fourth Quarter
|
|
|
6.59
|
|
|
|
4.20
|
|
Third Quarter
|
|
|
10.20
|
|
|
|
1.62
|
|
Second Quarter
|
|
|
3.10
|
|
|
|
1.97
|
|
First Quarter
|
|
|
3.60
|
|
|
|
2.12
|
|
|
|
|
|
|
|
|
|
|
Monthly Highs and Lows (for the most recent six months)
|
|
|
|
|
|
|
|
|
September 2018
|
|
|
8.00
|
|
|
|
6.41
|
|
August 2018
|
|
|
7.70
|
|
|
|
6.63
|
|
July 2018
|
|
|
7.50
|
|
|
|
6.30
|
|
June 2018
|
|
|
8.82
|
|
|
|
7.55
|
|
May 2018
|
|
|
7.80
|
|
|
|
5.92
|
|
April 2018
|
|
|
7.45
|
|
|
|
4.25
|
|
|
*
|
The
Company effected a 1-for-10 reverse stock split of its ordinary shares on November 6,
2012 (the “Reverse Split”). The ratio between each American Depositary Share
(“ADS”) and its underlying ordinary share post-Reverse Split remains the
same, namely, one ADR remains to represent one ordinary share post the Reverse Split.
The price listed here after November 6, 2012 reflected the effect from the Reverse Split.
|
B. PLAN
OF DISTRIBUTION.
Not Applicable.
C. MARKETS.
The primary trading market for our ordinary shares is the NASDAQ Capital Market, where our ordinary shares
are listed and traded since May 14, 2010. On August 17, 2018, we completed the transactions contemplated by the Asset Exchange
Agreement (“AEA”) with C Media Limited (“C Media”) entered into on January 25, 2018. On August 20, 2018,
we changed our name to Luokung Technology Corp., our American Depository Shares (“ADSs”) were voluntarily delisted
from the NASDAQ Capital Market on September 19, 2018 and on January 3, 2019 our ordinary shares started trading on NASDAQ under
the ticker symbol “LKCO”.
D. SELLING SHAREHOLDERS.
Not applicable.
E. DILUTION.
Not applicable.
F. EXPENSES OF
THE ISSUE.
Not applicable.
ITEM 10. ADDITIONAL
INFORMATION.
A. SHARE
CAPITAL
Not applicable.
B. MEMORANDUM
AND ARTICLES OF ASSOCIATION
We are a British Virgin
Islands company incorporated with limited liability and our affairs are governed by the provisions of our memorandum of association
and articles of association, as amended and restated from time to time, and by the provisions of applicable British Virgin Islands
law.
Our memorandum of
association and articles of association authorize the issuance of up to 251,000,000 shares, which are designated into (i) 250,000,000
ordinary shares of the Company (“
Ordinary Shares
”), and (ii) 1,000,000 preferred shares of the Company (“
Preferred
Shares
”), in each case with the rights, preferences and privileges as set out in the memorandum and articles of association
of the Company.
The following is a
summary of the material provisions of our ordinary shares and our memorandum of association and articles of association.
Ordinary Shares
All of our issued
and outstanding ordinary shares are fully paid and non-assessable. Holders of our ordinary shares who are non-residents of the
British Virgin Islands may freely hold and vote their shares.
Subject to the memorandum
and articles of association (and, for greater clarity, without prejudice to any special rights conferred thereby on the holders
of any other shares), an Ordinary Share of the Company confers on the holder:
|
(a)
|
the right to one
vote at a meeting of the members or on any resolution of members;
|
|
(b)
|
the right to an
equal share in any distribution paid by the Company; and
|
|
(c)
|
the right to an
equal share in the distribution of the surplus assets of the Company on a winding up.
|
Subject to the memorandum
and articles of association (and, for greater clarity, without prejudice to any special rights conferred thereby on the holders
of any other shares), a Preferred Share of the Company confers on the holder:
|
(a)
|
the right to 399
votes at a meeting of the members or on any resolution of members;
|
|
(b)
|
the right to an
equal share in any distribution paid by the Company;
|
|
(c)
|
the right to an
equal share in the distribution of the surplus assets of the Company on a winding up;
|
|
(d)
|
be freely transferable,
in whole or in part, by Mr. Xuesong Song to any third party through one or more Private Transactions, subject to Applicable
Law; and
|
|
(e)
|
be freely transferable,
in whole or in part, by Mr. Xuesong Song to any third party through one or more Public Transactions, subject to Applicable
Law and Automatic Conversion of such Preferred Share(s) into Ordinary Share(s).
|
Each Preferred Share
shall be automatically converted at any time after issue and without the payment of any additional sum into an equal number of
fully paid Ordinary Shares upon the conclusion of any transfer by Mr. Xuesong Song to any third party through one or more Public
Transactions.
Limitation on Liability and Indemnification
Matters
Under British Virgin
Islands law, each of our directors and officers, in performing his or her functions, is required to act honestly and in good faith
with a view to our best interests and exercise the care, diligence and skill that a reasonably prudent person would exercise in
comparable circumstances. Our memorandum of association and articles of association provide that, to the fullest extent permitted
by British Virgin Islands law or any other applicable laws, our directors will not be personally liable to us or our shareholders
for any acts or omissions in the performance of their duties. Such limitation of liability does not affect the availability of
equitable remedies such as injunctive relief or rescission. These provisions will not limit the liability of directors under United
States federal securities laws.
We may indemnify any
of our directors or anyone serving at our request as a director of another entity 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. We may only indemnify a director if he or she acted honestly and in good faith with the view to
our best interests and, in the case of criminal proceedings, the director had no reasonable cause to believe that his or her conduct
was unlawful. The decision of our board of directors as to whether the director acted honestly and in good faith with a view to
our best interests and as to whether the director had no reasonable cause to believe that his or her conduct was unlawful, is
in the absence of fraud sufficient for the purposes of indemnification, unless a question of law is involved. The termination
of any proceedings by any judgment, order, settlement, conviction or the entry of no plea does not, by itself, create a presumption
that a director did not act honestly and in good faith and with a view to our best interests or that the director had reasonable
cause to believe that his or her conduct was unlawful. If a director to be indemnified has been successful in defense of any proceedings
referred to above, the director is entitled to be indemnified against all expenses, including legal fees, and against all judgments,
fines and amounts paid in settlement and reasonably incurred by the director or officer in connection with the proceedings.
We may purchase and
maintain insurance in relation to any of our directors or officers against any liability asserted against the directors or officers
and incurred by the directors or officers in that capacity, whether or not we have or would have had the power to indemnify the
directors or officers against the liability as provided in our memorandum of association and articles of association.
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted for our directors or officers under the foregoing provisions,
we have been informed that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable as a matter of United States law.
Differences in Corporate Law
We were incorporated
under, and are governed by, the laws of the British Virgin Islands. The corporate statutes of the State of Delaware and the British
Virgin Islands are similar, and the flexibility available under British Virgin Islands law has enabled us to adopt memorandum
of association and articles of association that will provide shareholders with rights that do not vary in any material respect
from those they would enjoy if we were incorporated under the Delaware General Corporation Law, or Delaware corporate law. Set
forth below is a summary of some of the differences between provisions of the BVI Act applicable to us and the laws application
to companies incorporated in Delaware and their shareholders.
Director’s Fiduciary Duties
Under Delaware corporate
law, a director of a Delaware corporation has a fiduciary duty to the corporation and its stockholders. This duty has two components:
the duty of care and the duty of loyalty. The duty of care requires that a director act in good faith, with the care that an ordinarily
prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of, and disclose to
stockholders, all material information reasonably available regarding a significant transaction. The duty of loyalty requires
that a director act in a manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate
position for personal gain or advantage. This duty prohibits self-dealing by a director and mandates that the best interest of
the corporation and its stockholders take precedence over any interest possessed by a director, officer or controlling stockholder
and not shared by the stockholders generally. In general, actions of a director are presumed to have been made on an informed
basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation. However, this
presumption may be rebutted by evidence of a breach of one of the fiduciary duties. Should such evidence be presented concerning
a transaction by a director, a director must prove the procedural fairness of the transaction, and that the transaction was of
fair value to the corporation.
British Virgin
Islands law provides that every director of a British Virgin Islands company in exercising his powers or performing his
duties shall act honestly and in good faith and in what the director believes to be in the best interests of the company.
Additionally, the director shall exercise the care, diligence and skill that a reasonable director would exercise in the same
circumstances taking into account the nature of the company, the nature of the decision and the position of the director and
his responsibilities. In addition, British Virgin Islands law provides that a director shall exercise his powers as a
director for a proper purpose and shall not act, or agree to the company acting, in a manner that contravenes the BVI Act or
the memorandum of association or articles of association of the company.
Amendment of Governing Documents
Under Delaware corporate
law, with very limited exceptions, a vote of the stockholders is required to amend the certificate of incorporation. Under British
Virgin Islands law and our memorandum of association and articles of association, (i) our shareholders may amend our memorandum
of association and articles of association by a resolution of shareholders, or (ii) our board of directors may amend our memorandum
of association and articles of association by a resolution of directors without a requirement for a resolution of shareholders
so long as the amendment does not:
|
●
|
restrict the rights
of the shareholders to amend the memorandum of association and articles of association;
|
|
|
|
|
●
|
change the percentage
of shareholders required to pass a resolution of shareholders to amend the memorandum of association and articles of association;
|
|
|
|
|
●
|
amend the memorandum
of association and articles of association in circumstances where the memorandum of association and articles of association
cannot be amended by the shareholders; or
|
|
|
|
|
●
|
amend the provisions
of memorandum of association or the articles of association pertaining to “rights attaching to shares,” “rights
not varied by the issue of the shares pari passu,” “variation of rights” and “amendment of memorandum
and articles”.
|
Written Consent of Directors
Under Delaware corporate law, directors may act by written consent only on the basis of a unanimous vote.
Under British Virgin Islands law, directors’ consents need only a majority of directors signing to take effect under our
article of association, directors may act by written consents of all directors.
Written Consent of Shareholders
Under Delaware corporate
law, unless otherwise provided in the certificate of incorporation, any action to be taken at any annual or special meeting of
stockholders of a corporation, may be taken by written consent of the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to take such action at a meeting. As permitted by British Virgin Islands law, shareholders’
consents need only a majority of shareholders signing to take effect. Our memorandum of association and articles of association
provide that shareholders may approve corporate matters by way of a resolution consented to at a meeting of shareholders or in
writing by a majority of shareholders entitled to vote thereon.
Shareholder Proposals
Under Delaware corporate law, a shareholder has the right to put any proposal before the annual meeting
of shareholders, provided it complies with the notice provisions in the governing documents. A special meeting may be called by
the board of directors or any other person authorized to do so in the governing documents, but shareholders may be precluded from
calling special meetings. British Virgin Islands law and our memorandum of association and articles of association provide that
our directors shall call a meeting of the shareholders if requested in writing to do so by shareholders entitled to exercise 30%
or more of the voting rights in respect of the matter for which the meeting is requested.
Sale of Assets
Under Delaware corporate
law, a vote of the stockholders is required to approve the sale of assets only when all or substantially all assets are being
sold. In the British Virgin Islands, shareholder approval is required when more than 50% of the company’s total assets by
value are being disposed of or sold.
Dissolution; Winding Up
Under Delaware corporate
law, unless the board of directors approves the proposal to dissolve, dissolution must be approved by shareholders holding 100%
of the total voting power of the corporation. Only if the dissolution is initiated by the board of directors may it be approved
by a simple majority of the corporation’s outstanding shares. Delaware corporate law allows a Delaware corporation to include
in its certificate of incorporation a supermajority voting requirement in connection with dissolutions initiated by the board.
As permitted by British Virgin Islands law and our memorandum of association and articles of association, we may be voluntarily
liquidated under Part XII of the BVI Act by resolution of directors and resolution of shareholders if we have no liabilities and
we are able to pay our debts as they fall due.
Redemption of Shares
Under Delaware corporate
law, any stock may be made subject to redemption by the corporation at its option or at the option of the holders of such stock
provided there remains outstanding shares with full voting power. Such stock may be made redeemable for cash, property or rights,
as specified in the certificate of incorporation or in the resolution of the board of directors providing for the issue of such
stock. As permitted by British Virgin Islands law, and our memorandum of association and articles of association, shares may be
repurchased, redeemed or otherwise acquired by us. Our directors must determine that immediately following the redemption or repurchase
we will be able to satisfy our debts as they fall due and the value of our assets exceeds our liabilities.
Variation of Rights of Shares
Under Delaware corporate
law, a corporation may vary the rights of a class of shares with the approval of a majority of the outstanding shares of such
class, unless the certificate of incorporation provides otherwise. As permitted by British Virgin Islands law, and our memorandum
of association and articles of association, if our share capital is divided into more than one class of shares, we may vary the
rights attached to any class only with the consent in writing of holders of not less than three-fourths of the issued shares of
that class and holders of not less than three-fourths of the issued shares of any other class of shares which may be affected
by the variation.
Removal of Directors
Under Delaware corporate law, a director of a corporation with a classified board may be removed only
for cause with the approval of a majority of the outstanding shares entitled to vote, unless the certificate provides otherwise.
As permitted by British Virgin Islands law and our memorandum of association and articles of association, directors may be removed
with or without cause by resolution of directors or resolution of shareholders.
Mergers
Under the BVI Act,
two or more companies may merge or consolidate in accordance with the statutory provisions. A merger means the merging of two
or more constituent companies into one of the constituent companies, and a consolidation means the uniting of two or more constituent
companies into a new company. In order to merger or consolidate, the directors of each constituent company must approve a written
plan of merger or consolidation which must be authorized by a resolution of shareholders.
Shareholders not otherwise
entitled to vote on the merger or consolidation may still acquire the right to vote if the plan of merger or consolidation contains
any provision which, if proposed as an amendment to the memorandum association or articles of association, would entitle them
to vote as a class or series on the proposed amendment. In any event, all shareholders must be given a copy of the plan of merger
or consolidation irrespective of whether they are entitled to vote at the meeting or consent to the written resolution to approve
the plan of merger or consolidation.
Inspection of Books and Records
Under Delaware corporate
law, any shareholder of a corporation may for any proper purpose inspect or make copies of the corporation’s stock ledger,
list of shareholders and other books and records. Holders of our shares have no general right under British Virgin Islands law
to inspect or obtain copies of our list of shareholders or our corporate records. However, we will provide holders of our shares
with annual audited financial statements. See “Where You Can Find Additional Information.”
Conflict of Interest
The BVI Act provides
that a director shall, after becoming aware that he is interested in a transaction entered into or to be entered into by the company,
disclose that interest to the board of directors of the company. The failure of a director to disclose that interest does not
affect the validity of a transaction entered into by the director or the company, so long as the director’s interest was
disclosed to the board prior to the company’s entry into the transaction or was not required to be disclosed (for example
where the transaction is between the company and the director himself or is otherwise in the ordinary course of business and on
usual terms and conditions). As permitted by British Virgin Islands law and our memorandum of association and articles of association,
a director interested in a particular transaction may vote on it, attend meetings at which it is considered, and sign documents
on our behalf which relate to the transaction.
Transactions with Interested Shareholders
Delaware corporate
law contains a business combination statute applicable to Delaware public corporations whereby, unless the corporation has specifically
elected not to be governed by such statute by amendment to its certificate of incorporation, it is prohibited from engaging in
certain business combinations with an “interested shareholder” for three years following the date that such person
becomes an interested shareholder. An interested shareholder generally is a person or group who or that owns or owned 15% or more
of the target’s outstanding voting stock within the past three years. This has the effect of limiting the ability of a potential
acquirer to make a two-tiered bid for the target in which all shareholders would not be treated equally. The statute does not
apply if, among other things, prior to the date on which such shareholder becomes an interested shareholder, the board of directors
approves either the business combination or the transaction that resulted in the person becoming an interested shareholder. This
encourages any potential acquirer of a Delaware public corporation to negotiate the terms of any acquisition transaction with
the target’s board of directors.
British Virgin Islands
law has no comparable provision. As a result, we cannot avail ourselves of the types of protections afforded by the Delaware business
combination statute. However, although British Virgin Islands law does not regulate transactions between a company and its significant
shareholders, it does provide that such transactions must be entered into bona fide in the best interests of the company and not
with the effect of constituting a fraud on the minority shareholders.
Independent Directors
There are no provisions
under Delaware corporate law or under the BVI Act that require a majority of our directors to be independent.
Cumulative Voting
Under Delaware corporate
law, cumulative voting for elections of directors is not permitted unless the company’s certificate of incorporation specifically
provides for it. Cumulative voting potentially facilitates the representation of minority shareholders on a board of directors
since it permits the minority shareholder to cast all the votes to which the shareholder is entitled on a single director, which
increases the shareholder’s voting power with respect to electing such director. There are no prohibitions to cumulative
voting under the laws of the British Virgin Islands, but our memorandum of association and articles of association do not provide
for cumulative voting
Anti-takeover Provisions in Our
Memorandum of association and articles of association
Some provisions of
our memorandum of association and articles of association may discourage, delay or prevent a change in control of our company
or management that shareholders may consider favorable, including provisions that authorize our board of directors to issue preference
shares in one or more series and to designate the price, rights, preferences, privileges and restrictions of such preference shares.
C. MATERIAL CONTRACTS.
On January 25, 2018,
the Company executed an Asset Exchange Agreement (“AEA”) with C Media Limited, a corporation organized under the laws
of the Cayman Islands (“C Media”), whereby the Company agreed to purchase all the capital stock and equity interests
of LK Technology Ltd, together with its wholly-owned subsidiaries MMB Limited and Mobile Media (China) Limited and all respective
subsidiaries from C Media in exchange for (i) 185,412,599 ordinary shares of the Company, par value $0.01 per share (“Ordinary
Shares”), (ii) 1,000,000 preferred shares of Kingtone (“Preferred Shares”) and (iii) all issued and outstanding
capital stock or equity interests of the Company’s subsidiary, Topsky Info-Tech Holdings Pte Ltd., and its wholly-owned
subsidiary Xi’an Softech Co., Ltd., including all entities effectively controlled by Xi’an Softech Co., Ltd. through
contractual arrangements and variable business entities.
To consummate the
contemplated transactions described above, the Company obtained shareholder consent at a special meeting held on May 20, 2018,
(i) to authorize 1,000,000 Preferred Shares, (ii) to authorize additional Ordinary Shares so that total authorized Ordinary Shares
is equal to 250,000,000 shares, (iii) to list such Ordinary Shares on NASDAQ, and (iv) to approve the transactions contemplated
in the Asset Exchange Agreement. Additionally, NASDAQ needed to approve the contemplated transactions prior to consummation thereof.
C Media had the right to terminate the AEA if the closing had not occurred (other than through the failure of C Media to comply
fully with its obligations under the AEA) on or before July 31, 2018. The transactions contemplated by the AEA were consummated
on August 17, 2018.
On January 25, 2018,
five shareholders of the Company including its largest shareholder and its Chief Executive Officer executed a Securities Purchase
Agreement, whereby such shareholders agreed to sell a total of 617,988 Ordinary Shares and 282,694 American Depository Shares
of the Company to Redstone YYL Management Limited, a company incorporated in the British Virgin Islands, in exchange for an aggregate
purchase price of $1,897,860.09.
On August 25, 2018, LK Technology entered into a Stock Purchase Agreement (the “Agreement”)
with the shareholders (“Shareholders”) of Superengine Holding Limited, a limited liability company incorporated under
the laws of the British Virgin Islands (the “Superengine”), pursuant to which LK Technology acquired all of the issued
and outstanding shares of Superengine for an aggregate purchase price of US$60 million (the “Purchase Price”), which
was paid by the issuance of our Ordinary Shares in an amount equal to the quotient of (x) the Purchase Price divided by (y) the
average of the closing prices of the Ordinary Shares on the NASDAQ Capital Market over the 12 months period preceding July 31,
2018. We are a party to the Agreement in connection with the issuance of the Ordinary Shares and certain other limited purposes.
D. EXCHANGE
CONTROLS.
This section sets
forth a summary of the most significant regulations or requirements that affect our business activities in China or our shareholders’
right to receive dividends and other distributions from us.
Regulations on Internet Content Providers
The Administrative
Measures on Internet Information Services, or the Internet Content Measures, which was promulgated by the State Council on September
25, 2000 and amended on January 8, 2011, set out guidelines on the provision of internet information services. The Internet Content
Measures specifies that internet information services regarding news, publications, education, medical and health care, pharmacy
and medical appliances, among other things, are required to be examined, approved and regulated by the relevant authorities. Internet
information providers are prohibited from providing services beyond those included in the scope of their licenses or filings.
Furthermore, the Internet Content Measures specifies a list of prohibited content. Internet information providers are prohibited
from producing, copying, publishing or distributing information that is humiliating or defamatory to others or that infringes
the legal rights of others. Internet information providers that violate such prohibition may face criminal charges or administrative
sanctions. Internet information providers must monitor and control the information posted on their websites. If any prohibited
content is found, they must remove the content immediately, keep a record of such content and report to the relevant authorities.
The Internet Content
Measures classifies internet information services into commercial internet information services and non-commercial internet information
services. Commercial internet information services refer to services that provide information or services to internet users with
charge. A provider of commercial internet information services must obtain an ICP License.
Regulations on Internet Audio-video
Program Services
On December 20, 2007,
the MII and the State Administration of Press, Publication, Radio, Film and Television, or the SAPPRFT, jointly issued the Administrative
Provisions for the Internet Audio-Video Program Service, or the Audio-video Program Provisions, which came into effect on January
31, 2008 and was amended on August 28, 2015. The Audio-video Program Provisions defines “internet audio-video program services”
as producing, editing and integrating of audio-video programs, supplying audio-video programs to the public via the internet,
and providing audio-video programs uploading and transmission services to a third party. Entities providing internet audio-video
programs services must obtain an internet audio video program transmission license. Applicants for such licenses shall be state-owned
or state-controlled entities unless an internet audio-video program transmission license has been obtained prior to the effectiveness
of the Audio-video Program Provisions in accordance with the then-in-effect laws and regulations. In addition, foreign-invested
enterprises are not allowed to engage in the above-mentioned services. According to the audio video Program Provisions and other
relevant laws and regulations, audio-video programs provided by the entities supplying Internet audio-video program services shall
not contain any illegal content or other content prohibited by the laws and regulations, such as any content against the basic
principles in the PRC Constitution, any content that damages the sovereignty of the country or national security, and any content
that disturbs social order or undermine social stability. An audio-video program that has already been broadcast shall be retained
in full for at least 60 days. Movies, television programs and other media content used as Internet audio-video programs shall
comply with relevant administrative regulations on programs broadcasts through radio, movie and television channels. Entities
providing services related to Internet audio-video programs shall immediately delete the audio-video programs violating laws and
regulations, keep relevant records, report relevant authorities and implement other regulatory requirements.
The Categories of
the Internet Audio-Video Program Services, or the Audio-video Program Categories, promulgated by SAPPRFT on March 10, 2017, classifies
internet audio/video programs into four categories: (I) Category I internet audio/video program service, which is carried out
with a form of radio station or television station; (II) Category II internet audio/video program service, including (a) re-broadcasting
service of current political news audio/video programs; (b) hosting, interviewing, reporting and commenting service of arts, entertainment,
technology, finance and economics, sports, education and other specialized audio/video programs; (c) producing (interviewing not
included) and broadcasting service of arts, entertainment, technology, finance and economics, sports, education and other specialized
audio/video programs; (d) producing and broadcasting service of internet films/dramas; (e) aggregating and broadcasting service
of films, television dramas and cartoons; (f) aggregating and broadcasting service of arts, entertainment, technology, finance
and economics, sports, education and other specialized audio/video programs; and (g) live audio/video broadcasting service of
cultural activities of common social organizations, sport events or other organization activities; and (III) Category III internet
audio/video program service, including (a) aggregating service of online audio/video contents, and (b) re-broadcasting service
of the audio/video programs uploaded by internet users; and (IV) Category III internet audio/video program service, including
(a) re-broadcasting of the radio/television program channels; and (b) re-broadcasting of internet audio/video program channels.
On May 27, 2016, the
SAPPRFT issued the Notice on Relevant Issues concerning Implementing the Approval Works of Upgrading Mobile Internet Audio-Video
Program Service, or the Mobile Audio-Video Program Notice. The Mobile Audio-Video Program Notice provides that the mobile Internet
audio-video program services shall be deemed Internet audio-video program service. Entities which have obtained the approvals
to provide the Internet audio-video program services may use mobile WAP websites or mobile applications to provide audio-video
program services. Entities with regulatory approvals may operate mobile applications to provide the audio-video program services.
The types of the programs shall be within the permitted scope as provided in the licenses and such mobile applications shall be
filed with the SAPPRFT.
Regulations on Production and Operation
of Radio/Television Programs
On July 19, 2004,
the SAPPRFT promulgated the Administrative Measures on the Production and Operation of Radio and Television Programs, or the Radio
and Television Program Production Measures, which came into effect on August 20, 2004 and was amended on August 28, 2015. The
Radio and Television Program Production Measures provides that any business that produces or operates radio or television programs
must first obtain a Radio and Television Program Production and Operation Permit. Entities holding such permits shall conduct
their business within the permitted scope as provided in their permits. In addition, foreign-invested enterprises are not allowed
to engage in the above-mentioned services.
Regulations on Online Advertising Services
On April 24, 2015,
the Standing Committee of the National People’s Congress enacted the Advertising Law of the People’s Republic of China,
or the New Advertising Law, effective on September 1, 2015. The New Advertising Law increases the potential legal liability of
advertising services providers and strengthens regulations of false advertising. On July 4, 2016, the State Administration for
Industry and Commerce, or the SAIC, issued the Interim Measures of the Administration of Online Advertising, or the SAIC Interim
Measures, effective on September 1, 2016. The New Advertising Law and the SAIC Interim Measures require that online advertisements
may not affect users’ normal internet use and internet pop-up ads must display a “close” sign prominently and
ensure one-key closing of the pop-up windows. The SAIC Interim Measures provides that all online advertisements must be marked
“Advertisement” so that viewers can easily identify them as such. Moreover, the SAIC Interim Measures treats paid
search results as advertisements that are subject to PRC advertisement laws, and requires that paid search results be conspicuously
identified on search result pages as advertisements. The New Advertising Law and SAIC Interim Measures require us to conduct more
stringent examination and monitoring of our advertisers and the content of their advertisements.
Regulations on Online Games
In September 2009,
the GAPP (currently known as the SAPPRFT), together with the National Copyright Administration, and the National Office of Combating
Pornography and Illegal Publications jointly issued the Notice on Further Strengthening on the Administration of Pre-examination
and Approval of Online Game and the Examination and Approval of Imported Online Game, or the Circular 13. The Circular 13 states
that foreign investors are not permitted to invest in online game operating businesses in the PRC via wholly foreign-owned entities,
Sino-foreign equity joint ventures or cooperative joint ventures or to exercise control over or participate in the operation of
domestic online game businesses through indirect means, such as other joint venture companies or contractual or technical arrangements.
If the our contractual arrangements were deemed under the Circular 13 to be an “indirect means” for foreign investors
to exercise control over or participate in the operation of a domestic online game business, our contractual arrangements might
be challenged by the SAPPRFT. We are not aware of any online game companies which use the same or similar contractual arrangements
having been challenged by the SAPPRFT as using those contractual arrangements as an “indirect means” for foreign investors
to exercise control over or participate in the operation of a domestic online game business or having been penalized or ordered
to terminate operations since the Circular 13 became effective. However, it is unclear whether and how the Circular 13 might be
interpreted or implemented in the future. See “Risk Factors—If the PRC government finds that the agreements that establish
the structure for operating certain of our operations in China do not comply with PRC regulations relating to the relevant industries,
or if these regulations or the interpretation of existing regulations change in the future, we could be subject to severe penalties
or be forced to relinquish our interests in those operations.”
The Interim Measures for the Administration of Online Games, or the Online Game Measures, issued by the
MOC, which took effect on August 1, 2010 and amended on December 15, 2017, regulates a broad range of activities related to the
online games business, including the development, production and operation of online games, the issuance of virtual currencies
used for online games, and the provision of virtual currency trading services. The Online Game Measures provides that any entity
that is engaged in online game operations must obtain a Network Cultural Business Permit, and require the content of an imported
online game to be examined and approved by the MOC prior to the game’s launch and require a domestic online game to be filed
with the MOC within 30 days after its launch. The Notice of the Ministry of Culture on the Implementation of the Interim Measures
for the Administration of Online Games, which was issued by the MOC on July 29, 2010 to implement the Online Game Measures, (i)
requires online game operators to protect the interests of online game users and specifies that certain terms that must be included
in service agreements between online game operators and the users of their online games, (ii) requires content review of imported
online games and filing procedures for domestic online games, (iii) emphasizes the protection of minors playing online games, and
(iv) requests online game operators to promote real-name registration by their game users.
Regulations on Information Security,
Censorship and Privacy
The Standing Committee
of the National People’s Congress, China’s national legislative body, enacted the Decisions on the Maintenance of
Internet Security on December 28, 2000 that may subject persons to criminal liabilities in China for any attempt to use the internet
to: (i) gain improper entry to a computer or system of strategic importance; (ii) disseminate politically disruptive information;
(iii) leak state secrets; (iv) spread false commercial information or (v) infringe upon intellectual property rights. In 1997,
the Ministry of Public Security issued the Administration Measures on the Security Protection of Computer Information Network
with International Connections which prohibits using the internet to leak state secrets or to spread socially destabilizing materials.
If an ICP license holder violates these measures, the PRC government may revoke its ICP license and shut down its websites. Pursuant
to the Ninth Amendment to the Criminal Law issued by the Standing Committee of the National People’s Congress on August
29, 2015, effective on November 1, 2015, any ICP provider that fails to fulfill the obligations related to internet information
security as required by applicable laws and refuses to take corrective measures, will be subject to criminal liability for (i)
any large-scale dissemination of illegal information; (ii) any severe effect due to the leakage of users’ personal information;
(iii) any serious loss of evidence of criminal activities; or (iv) other severe situations, and any individual or entity that
(i) sells or provides personal information to others unlawfully or (ii) steals or illegally obtains any personal information will
be subject to criminal liability in severe situations.
The Cybersecurity
Law of the PRC, or the Cybersecurity Law, which was promulgated on November 7, 2016 by the Standing Committee of the National
People’s Congress and came into effect on June 1, 2017, provides that network operators shall meet their cyber security
obligations and shall take technical measures and other necessary measures to protect the safety and stability of their networks.
Under the Cybersecurity Law, network operators are subject to various security protection-related obligations, including: (i)
network operators shall comply with certain obligations regarding maintenance of the security of internet systems; (ii) network
operators shall verify users’ identities before signing agreements or providing certain services such as information publishing
or real-time communication services; (iii) when collecting or using personal information, network operators shall clearly indicate
the purposes, methods and scope of the information collection, the use of information collection, and obtain the consent of those
from whom the information is collected; (iv) network operators shall strictly preserve the privacy of user information they collect,
and establish and maintain systems to protect user privacy; (v) network operators shall strengthen management of information published
by users, and when they discover information prohibited by laws and regulations from publication or dissemination, they shall
immediately stop dissemination of that information, including taking measures such as deleting the information, preventing the
information from spreading, saving relevant records, and reporting to the relevant governmental agencies.
Relevant Regulations of the High-tech
Enterprise
The Ministry of Information
Industry, the Ministry of Science and Technology and the State Tax Bureau collectively promulgated and issued the “Certifying
Standard and Managing Measures for High-tech Enterprises” and “the High-tech Areas of Main National Support”
on April 14, 2008 to certify the High-tech enterprise and encourage and support the development of the Chinese High-tech enterprises.
Under the High-tech Enterprises Measures, the enterprise can enjoy the favorable tax policy when it is certified as a High-tech
enterprise by the Ministry of Information Industry, the Ministry of Science and Technology and the State Tax Bureau or with its
provincial branch according to the stipulated standard. The software and computer and network technology are recognized as the
main national supported High-tech field. Our subsidiaries, Beijing Zhong Chuan Shi Xun Technology Limited and Superengine Graphics
Software Technology Development (Suzhou) Co., Ltd are a High-tech enterprise and enjoys a favorable income tax rate of 15%.
Laws and Regulations of Intellectual
Property Rights
China has adopted
legislation governing intellectual property rights, including patents, copyrights and trademarks. China is a signatory to the
main international conventions on intellectual property rights and became a member of the Agreement on Trade Related Aspects of
Intellectual Property Rights upon its accession to the WTO in December 2001.
Patents
The “Patent
Law of the People’s Republic of China” promulgated by the Standing Committee of the National People’s Congress,
adopted in 1985 and revised in 1992, 2001 and 2008, protects registered patents. The State Intellectual Property Office of PRC
handles granting patent rights, providing for a twenty-year patent term for inventions and a ten-year patent term for utility
models and designs. As we disclosed in Item 4, of this annual report on Form 20-F, through Luokung Technology, we have been granted
20 patents by the State Intellectual Property Office (“SIPO”) of PRC and therefore such invention is entitled to all
the protections provided under the Patent Law for twenty years.
Computer Software Copyright and
Administration
On December 20, 2001,
the State Council of PRC issued the “Regulation for Computer Software Protection of the People’s Republic of China”
(the “Regulation for Computer Software Protection”) which became effective on January 1, 2002 to protect the interests
of copyright owners, to promote the research and application and to encourage the development of the Chinese software industry.
Under the Regulation for Computer Software Protection, natural persons, legal persons or any other organizations shall have a
copyright on the software developed by such persons no matter whether such software has been published. The protection period
of software copyrights owned by the legal person or other organization is fifty years and expires on December 31 of the fiftieth
year from the initial publication date of such computer software. Currently, Luokung Technology has 34registration certificates
for software copyrights.
Trademarks
The “Trademark
Law of the People’s Republic of China” promulgated by the State Council of PRC, adopted in 1982 and revised in 1993
and 2001, protects registered trademarks. The Trademark Office under the Chinese State Administration for Industry and Commerce
handles trademark registrations and grants a term of ten years to registered trademarks which are renewable for another ten years
after the application to the Trademark Office by the owners of the trademarks. Trademark license agreements must be filed with
the Trademark Office for record. China has a “first-to-register” system that requires no evidence of prior use or
ownership. Luokung Technology has its registered trademarks as described in Item 4 of this annual report on Form 20-F. Accordingly,
such trademarks are entitled to the protection under the Trademark Law.
Foreign Currency Exchange
On August 29, 2008,
the SAFE issued the Notice of the General Affairs Department of the State Administration of Foreign Exchange on the Relevant Operating
Issues concerning the Improvement of the Administration of Payment and Settlement of Foreign Currency Capital of Foreign-funded
Enterprises, or Circular 142. Pursuant to Circular 142, RMB converted from the foreign currency-denominated capital of a foreign-invested
company may only be used for purposes within the business scope approved by the applicable governmental authority and may not
be used for equity investments within the PRC unless specifically provided for otherwise. The use of such Renminbi capital may
not be changed without SAFE’s approval and may not in any case be used to repay Renminbi loans if the proceeds of such loans
have not been used.
See “Risk Factors — Risks
Related to Doing Business in China — PRC regulation of loans and direct investment by offshore holding companies
to PRC entities may delay or prevent us from using the proceeds of our initial public offering to make loans or additional capital
contributions to our PRC operating subsidiaries, which could materially and adversely affect our liquidity and our ability to
fund and expand our business”.
Dividend Distribution
We are a British Virgin
Islands holding company and substantially all of our operations are conducted through LK Technology. We rely on dividends and
other distributions from our LK Technology and its subsidiaries to provide us with our cash flow and allow us to pay dividends
on the shares underlying our ADSs and meet our other obligations. The principal regulations governing distribution of dividends
paid by wholly foreign-owned enterprises include:
|
1.
|
Wholly
Foreign-Owned Enterprise Law (1986), as amended; and
|
|
|
|
|
2.
|
Implementation
Rules on Wholly Foreign-Owned Enterprise Law (1990), as amended.
|
Under these regulations,
wholly foreign-owned enterprises in China may pay dividends only out of their accumulated profits, if any, determined in accordance
with PRC accounting standards and regulations. In addition, wholly foreign-owned enterprises in China are required to set aside
at least 10% of their after-tax profit based on PRC accounting standards each year to its general reserves until the accumulative
amount of such reserves reach 50% of its registered capital. These reserves are not distributable as cash dividends. The board
of directors of a FIE has the discretion to allocate a portion of its after-tax profits to staff welfare and bonus funds, which
may not be distributed to equity owners except in the event of liquidation.
Regulation of Foreign Exchange in Certain
Onshore and Offshore Transactions
In October 2005, the
SAFE issued the Notice on Issues Relating to the Administration of Foreign Exchange in Fund-raising and Return Investment Activities
of Domestic Residents Conducted via Offshore Special Purpose Companies, or SAFE Notice 75, which became effective as of November
1, 2005, and was further supplemented by two implementation notices issued by the SAFE on November 24, 2005 and May 29, 2007,
respectively. Under Circular 75, prior registration with the local SAFE branch is required for PRC residents to establish or to
control an offshore company for the purposes of financing that offshore company with assets or equity interests in an onshore
enterprise located in the PRC. An amendment to the registration or filing with the local SAFE branch by such PRC resident is also
required for the injection of equity interests or assets of an onshore enterprise in the offshore company or overseas funds raised
by such offshore company, or any other material change with respect to the offshore company in connection with any increase or
decrease of capital, transfer of shares, merger, division, equity investment, debt investment, or creation of any security interest
over any assets located in the PRC.
Under SAFE Notice
75, PRC residents are further required to repatriate into the PRC all of their dividends, profits or capital gains obtained from
their shareholdings in the offshore entity within 180 days of their receipt of such dividends, profits or capital gains. The registration
and filing procedures under SAFE Notice 75 are prerequisites for other approval and registration procedures necessary for capital
inflow from the offshore entity, such as inbound investments or shareholders loans, or capital outflow to the offshore entity,
such as the payment of profits or dividends, liquidating distributions, equity sale proceeds, or the return of funds upon a capital
reduction. Therefore, failure to comply with such registration may subject us to certain restrictions on, including but not limited
to, the increase of the registered capital of our PRC subsidiary, making loans to our PRC subsidiary, and making distributions
to us from our on-shore companies.
Regulations of Overseas Investments
and Listings
On August 8, 2006,
six PRC regulatory agencies, including the MOFCOM, the State Assets Supervision and Administration Commission, the State Administration
for Taxation, the State Administration for Industry and Commerce, the CSRC and the SAFE, jointly adopted the New M&A Rule,
which became effective on September 8, 2006. This regulation, among other things, includes provisions that purport to require
that an offshore SPV formed for purposes of overseas listing of equity interests in PRC companies and controlled directly or indirectly
by PRC companies or individuals obtain the approval of the CSRC prior to the listing and trading of such SPV’s securities
on an overseas stock exchange.
On September 21, 2006,
the CSRC published on its official website procedures regarding its approval of overseas listings by SPVs. The CSRC approval procedures
require the filing of a number of documents with the CSRC and it would take several months to complete the approval process.
The application of
the New M&A Rule with respect to overseas listings of SPVs remains unclear with no consensus currently existing among the
leading PRC law firms regarding the scope of the applicability of the CSRC approval requirement.
We believe that, based
on our understanding of the current PRC laws, regulations and rules and the procedures announced on September 21, 2006, there
is no requirement in this regulation that would require an application to be submitted to the MOFCOM or the CSRC for the approval
of the listing and trading of our ADSs on the NASDAQ Capital Market.
See “Risk Factors — Risks
Related to Doing Business in China — If we were required to obtain the prior approval of the China Securities
Regulatory Commission, or CSRC, of the listing and trading of our ADSs on the NASDAQ Capital Market, we may face regulatory actions
or other sanctions from the CSRC or other PRC regulatory agencies.”
E. TAXATION
The following discussion
sets forth the material British Virgin Islands, PRC and U.S. federal income tax consequences of an investment in our ADSs and
the ordinary shares represented by our ADSs, sometimes referred to collectively as the “securities”. It is based upon
laws and relevant interpretations thereof in effect as of the date of this report, all of which are subject to change. This discussion
does not deal with all possible tax consequences relating to an investment in the securities, such as the tax consequences under
state, local and other tax laws. As used in this discussion, “we,” “our” and “us” refers only
to Luokung Technology Corp..
British Virgin Islands Taxation
Under the law of the
British Virgin Islands as currently in effect, a holder of the securities who is not a resident of the British Virgin Islands
is not liable for British Virgin Islands tax on dividends paid with respect to the securities and all holders of the securities
are not liable to the British Virgin Islands for tax on gains realized during that year on the sale or disposal of such ordinary
shares. The British Virgin Islands does not impose a withholding tax on dividends paid by a company incorporated or re-registered
under the BVI Act.
There are no capital
gains, gift or inheritance taxes levied by the British Virgin Islands on companies incorporated under the BVI Act. In addition,
shares of companies incorporated under the BVI Act are not subject to transfer taxes, stamp duties or similar charges.
There is no income
tax treaty or convention currently in effect between the United States and the British Virgin Islands or between China and the
British Virgin Islands.
People’s Republic of China Taxation
In 2007, the PRC National
People’s Congress enacted the new Enterprise Income Tax Law (the “EIT Law”), which became effective on January
1, 2008. The new EIT Law imposes a single uniform income tax rate of 25% on all Chinese enterprises, including foreign-invested
enterprises, and levies a withholding tax rate of 10% on dividends payable by Chinese subsidiaries to their foreign shareholders
unless any such foreign shareholders’ jurisdiction of incorporation has a tax treaty with China that provides for a different
withholding agreement. Under the new EIT Law, enterprises established outside China but deemed to have a “de facto management
body” within the country may be considered “resident enterprises” for Chinese tax purposes and, therefore, may
be subject to an enterprise income tax rate of 25% on their worldwide income. Pursuant to the implementation rules of the new
EIT Law, a “de facto management body” is defined as a body that has material and overall management control over the
business, personnel, accounts and properties of the enterprise. Although substantially all members of our management are located
in China, it is unclear whether Chinese tax authorities would require (or permit) us to be treated as PRC resident enterprises.
If we are deemed a Chinese tax resident enterprise, we may be subject to an enterprise income tax rate of 25% on our worldwide
income, excluding dividends received directly from another Chinese tax resident enterprise, as well as PRC enterprise income tax
reporting obligations. If we are not deemed to be a Chinese tax resident enterprise, we may be subject to certain PRC withholding
taxes. See “Risk Factors — Risks Related to Doing Business in China — Our holding company
structure may limit the payment of dividends.” As a result of such changes, our historical tax rates may not be indicative
of our tax rates for future periods and the value of our ADSs or ordinary shares may be adversely affected. If we are deemed a
PRC resident enterprise and investors’ gain from the sales of the securities and dividends payable by us are deemed sourced
from China, such gains and dividends payable by us may be subject to PRC tax. See “Risk Factors — Risks
Related to Doing Business in China — If we were deemed a “resident enterprise” by PRC tax authorities,
we could be subject to tax on our global income at the rate of 25% under the New EIT Law and our non-PRC shareholders could be
subject to certain PRC taxes.
United States Federal Income Taxation
General
The following is a
discussion of the material U.S. federal income tax consequences to an investor of purchasing, owning and disposing of our securities.
This discussion does not address any aspects of U.S. federal gift or estate tax or the state, local or non-U.S. tax consequences
of an investment in the securities.
YOU SHOULD CONSULT
YOUR OWN TAX ADVISORS CONCERNING THE U.S. FEDERAL, STATE, LOCAL AND NON-U.S. TAX CONSEQUENCES OF PURCHASING, OWNING AND DISPOSING
OF THE SECURITIES IN YOUR PARTICULAR SITUATION.
This discussion applies
only to those investors that purchase the securities in this offering and that hold the securities as capital assets within the
meaning of section 1221 of the Internal Revenue Code of 1986, as amended (the “Code”). This section does not apply
to holders that may be subject to special tax rules, including but not limited to:
|
1.
|
dealers in securities
or currencies;
|
|
2.
|
traders in securities
that elect to use a mark-to-market method of accounting;
|
|
3.
|
banks, insurance
companies or certain financial institutions;
|
|
4.
|
tax-exempt organizations;
|
|
5.
|
governments or agencies
or instrumentalities thereof;
|
|
6.
|
partnerships or
other entities treated as partnerships or other pass-through entities for U.S. federal income tax purposes or persons holding
the securities through such entities;
|
|
7.
|
regulated investment
companies or real estate investment trusts;
|
|
8.
|
holders subject
to the alternative minimum tax;
|
|
9.
|
holders that actually
or constructively own 10% or more of the total combined voting power of all classes of our shares entitled to vote;
|
|
10.
|
holders that acquired
the securities pursuant to the exercise of employee stock options, in connection with employee stock incentive plans or otherwise
as compensation;
|
|
11.
|
holders that hold
the securities as part of a straddle, hedging or conversion transaction; or
|
|
12.
|
holders whose functional
currency is not the U.S. dollar.
|
This section is based
on the Code, its legislative history, existing and proposed U.S. Treasury regulations, published rulings and other administrative
guidance of the U.S. Internal Revenue Service (the “IRS”) and court decisions, all as in effect on the date hereof.
These laws are subject to change or different interpretation by the IRS or a court, possibly on a retroactive basis.
We have not sought,
and will not seek, a ruling from the IRS as to any U.S. federal income tax consequence described herein. The IRS may disagree
with the discussion herein, and its determination may be upheld by a court. Moreover, there can be no assurance that future legislation,
regulation, administrative rulings or court decisions will not adversely affect the accuracy of the statements in this discussion.
The discussion below
of the U.S. federal income tax consequences to “U.S. Holders” will apply to a beneficial owner of the securities that
is for U.S. federal income tax purposes:
|
1.
|
a
citizen or resident of the United States;
|
|
|
|
|
2.
|
a
corporation (or other entity treated as a corporation) that is created or organized (or treated as created or
|
|
|
|
|
3.
|
organized)
under the laws of the United States, any state thereof or the District of Columbia;
|
|
|
|
|
4.
|
an
estate whose income is subject to U.S. federal income tax regardless of its source; or
|
|
|
|
|
5.
|
a
trust if (a) a U.S. court can exercise primary supervision over the trust’s administration and one or more U.S.
|
|
|
|
|
6.
|
persons
are authorized to control all substantial decisions of the trust, or (b) if the trust has a valid election in effect under
applicable U.S.
|
Treasury regulations
to be treated as a U.S. person.
If a beneficial owner
of the securities is not described as a U.S. Holder and is not an entity treated as a partnership or other pass-through entity
for U.S. federal income tax purposes, such owner will be considered a “Non-U.S. Holder.” The material U.S. federal
income tax consequences applicable specifically to Non-U.S. Holders are described below under the heading “Tax Consequences
to Non-U.S. Holders.”
If a partnership (including
for this purpose any entity treated as a partnership for U.S. tax purposes) is a beneficial owner of the securities, the U.S.
tax treatment of a partner in the partnership generally will depend on the status of the partner and the activities of the partnership.
A holder of the securities that is a partnership or partners in such a partnership should consult their own tax advisors about
the U.S. federal income tax consequences of holding and disposing of the securities.
This discussion assumes
that any distributions made (or deemed made) on the securities and any consideration received by a holder in consideration for
the sale or other disposition of the securities will be in U.S. dollars. This discussion also assumes that the representations
contained in the Deposit Agreement are true and that the obligations in the Deposit Agreement and any related agreement will be
complied with in accordance with their terms. Finally, this discussion assumes that each ADS will only represent ordinary shares
in us, and will not represent any other type of security, such as a bond, cash or other property.
For U.S. federal income
tax purposes, a holder of an ADS will be treated as the beneficial owner of the shares represented by such ADS and an exchange
of an ADS for ordinary shares will not be subject to U.S. federal income tax. The U.S. Treasury has expressed concerns that parties
to whom ADSs are pre-released, or intermediaries in the chain of ownership between holders of ADSs and the issuer of the securities
underlying the ADSs may be taking actions that are inconsistent with the claiming of foreign tax credits by U.S. Holders of ADSs.
Such actions would also be inconsistent with the claiming of the reduced rate of tax applicable to dividends received by certain
non-corporate U.S. Holders, including individual U.S. Holders, as described below under “Tax Consequences to U.S. Holders — Taxation
of Distributions.” Accordingly, the availability of foreign tax credits or the reduced tax rate for dividends received by
certain non-corporate U.S. Holders, including individual U.S. Holders, could be affected by actions taken by parties to whom the
ADSs are released, or by future actions by the U.S. Treasury.
Tax Consequences to U.S. Holders
Taxation of Distributions
Subject to the passive
foreign investment company, or PFIC, rules discussed below, the gross amount of any cash distributions we make with respect to
a U.S. Holder in respect of such U.S. Holder’s ADSs or shares will generally be treated as dividend income if the distributions
are made from our current or accumulated earnings and profits, calculated according to U.S. federal income tax principles. Cash
dividends will generally be subject to U.S. federal income tax as ordinary income on the day the U.S. Holder actually or constructively
receives such income. With respect to non-corporate U.S. Holders for taxable years beginning before January 1, 2011, dividends
may be taxed at the lower applicable long-term capital gains rate provided that (a) our ADSs or shares are readily tradable on
an established securities market in the United States, or, in the event we are deemed to be a Chinese “resident enterprise”
under the EIT Law (as described above under “People’s Republic of China Taxation”), we are eligible for the
benefits of the income tax treaty between the United States and the PRC (the “U.S.-PRC Tax Treaty”), (b) we are not
a PFIC, as discussed below, for either the taxable year in which the dividend was paid or the preceding taxable year, and (c)
certain holding period requirements are met. Under published IRS authority, ADSs are considered for purposes of clause (a) above
to be readily tradable on an established securities market in the United States only if they are listed on certain exchanges,
which presently include the NASDAQ Capital Market. U.S. Holders should consult their own tax advisors regarding the availability
of the lower rate for any dividends paid with respect to our ADSs or shares.
Dividends will not
be eligible for the dividends-received deduction allowed to U.S. corporations in respect of dividends received from other U.S.
corporations. Generally, if we distribute non-cash property as a dividend (other than pro rata distributions of our shares) out
of our current or accumulated earnings and profits (as determined for U.S. federal income tax purposes), a U.S. Holder generally
will include in income an amount equal to the fair market value of the property, on the date that it is distributed.
Distributions in excess
of current and accumulated earnings and profits, as determined for U.S. federal income tax purposes, will be treated as a non-taxable
return of capital to the extent of the U.S. Holder’s basis in its shares or ADSs and thereafter as capital gain. However,
we do not plan on calculating our earnings and profits in accordance with U.S. federal income tax principles. U.S. holders therefore
should generally assume that any distributions paid by us will be treated as dividends for U.S. federal income tax purposes.
If PRC taxes apply
to dividends paid by us to a U.S. Holder (see “People’s Republic of China Taxation,” above), such taxes may
be treated as foreign taxes eligible for credit against such holder’s U.S. federal income tax liability (subject to certain
limitations), and a U.S. Holder may be entitled to certain benefits under the U.S.-PRC Tax Treaty. The rules relating to the U.S.
foreign tax credit are complex. U.S. Holders should consult their own tax advisors regarding the creditability of any such PRC
tax and their eligibility for the benefits of the U.S.-PRC Tax Treaty.
Taxation of Dispositions of Shares
Subject to the PFIC
rules discussed below, a U.S. holder that sells or otherwise disposes of its shares will recognize capital gain or loss for U.S.
federal income tax purposes equal to the difference between the amount realized and such U.S. Holder’s tax basis in its
shares. Prior to January 1, 2011, capital gains of a non-corporate U.S. holder are generally taxed at a maximum rate of 15% where
the property is held for more than one year (and 20% thereafter). The ability to deduct capital losses is subject to limitations.
If PRC taxes apply
to any gain from the disposition of our shares by a U.S. Holder, such taxes may be treated as foreign taxes eligible for credit
against such holder’s U.S. federal income tax liability (subject to certain limitations), and a U.S. Holder may be entitled
to certain benefits under the U.S.-PRC Tax Treaty. U.S. Holders should consult their own tax advisors regarding the creditability
of any such PRC tax and their eligibility for the benefits of the U.S.-PRC Tax Treaty.
Passive Foreign Investment Company
We do not expect to
be a PFIC for U.S. federal income tax purposes for our current tax year or in the foreseeable future. The determination of whether
or not we are a PFIC in respect of any of our taxable years is a factual determination that cannot be made until the close of
the applicable tax year and that is based on the types of income we earn and the value and composition of our assets (including
goodwill), all of which are subject to change. Therefore, we can make no assurances that we will not be a PFIC in respect of our
current taxable year or in the future.
In general, we will
be a PFIC in any taxable year if either:
|
1.
|
at
least 75% of our gross income for the taxable year is passive income; or
|
|
|
|
|
2.
|
at
least 50% of the value, determined on the basis of a quarterly average, of our assets is attributable to assets that produce
or are held for the production of passive income.
|
Passive income includes
dividends, interest, royalties, rents (other than certain rents and royalties derived in the active conduct of a trade or business),
the excess of gains over losses from certain types of transactions in commodities, annuities and gains from assets that produce
passive income. We will be treated as owning our proportionate share of the assets and earning our proportionate share of the
income of any corporation in which we own, directly or indirectly, at least 25% (by value) of the stock.
If we are treated
as a PFIC in any year during which a U.S. Holder owns the securities, and such U.S. Holder did not make a mark-to-market election,
as described below, the U.S. Holder will be subject to special rules with respect to:
|
1.
|
any gain recognized
by the U.S. Holder on the sale or other disposition of its shares; and any excess distribution that we make to the U.S. Holder
(generally, the excess of the amount of any distributions to such U.S. Holder during a single taxable year of such U.S. Holder
over 125% of the average annual distributions received by such U.S. Holder in respect of the shares during the three preceding
taxable years of such U.S. Holder or, if shorter, such U.S. Holder holding period for the shares).
|
|
|
|
|
|
Under these rules:
|
|
|
|
|
2.
|
the gain or excess
distribution will be allocated ratably over the U.S. Holder’s holding period for the shares;
|
|
|
|
|
3.
|
the amount allocated
to the U.S. Holder’s taxable year in which it realized the gain or excess distribution or to the period in the U.S.
Holder’s holding period before the first day of our first taxable year in which we are a PFIC will be taxed as ordinary
income;
|
|
|
|
|
4.
|
the amount allocated
to other taxable years (or portions thereof) of the U.S. Holder and included in its holding period will be taxed at the highest
tax rate in effect for that year; and
|
|
|
|
|
5.
|
the interest charge
generally applicable to underpayments of tax will be imposed in respect of the tax attributable to each such other taxable
year of the U.S. Holder.
|
|
|
|
|
6.
|
Special rules apply
for calculating the amount of the foreign tax credit with respect to excess distributions by a PFIC.
|
Alternatively, if
a U.S. Holder, at the close of its taxable year, owns ordinary shares in a PFIC that are treated as marketable stock, the U.S.
Holder may make a mark-to-market election with respect to such shares for such taxable year. Our shares will be “marketable”
to the extent that they remain regularly traded on a national securities exchange, such as the NASDAQ Capital Market. If a U.S.
Holder makes this election in a timely fashion, it will not be subject to the PFIC rules described above. Instead, in general,
the U.S. Holder will include as ordinary income each year the excess, if any, of the fair market value of its shares at the end
of the taxable year over its adjusted basis in its shares. Any ordinary income resulting from this election would generally be
taxed at ordinary income tax rates and would not be eligible for the reduced rate of tax applicable to qualified dividend income.
The U.S. Holder will also be allowed to take an ordinary loss in respect of the excess, if any, of the adjusted basis of its shares
over the fair market value at the end of the taxable year (but only to the extent of the net amount of previously included income
as a result of the mark-to-market election). The U.S. Holder’s basis in the shares will be adjusted to reflect any such
income or loss amounts. U.S. Holders should consult their own tax advisor regarding potential advantages and disadvantages of
making a mark-to-market election with respect to their shares.
Alternatively, a U.S.
Holder of stock in a PFIC may avoid the PFIC tax consequences described above in respect to our or shares by making a timely “qualified
electing fund” election to include in income its pro rata share of our net capital gains (as long-term capital gain) and
other earnings and profits (as ordinary income), on a current basis, in each case whether or not distributed, in the taxable year
of the U.S. Holder in which or with which our taxable year ends. However, the qualified electing fund election is available only
if the PFIC provides such U.S. Holder with certain information regarding its earnings and profits as required under applicable
U.S. Treasury regulations. We do not intend to furnish the information that a U.S. Holder would need in order to make a qualified
electing fund election. Therefore, U.S. Holders will not be able to make or maintain such election with respect to their or shares.
If a U.S. Holder owns
our shares or during any year that we are a PFIC, such holder must file U.S. Internal Revenue Service Form 8621 regarding such
holder’s shares or and the gain realized on the disposition of the shares. The reduced tax rate for dividend income, discussed
in “Taxation of Distributions,” is not applicable to dividends paid by a PFIC. U.S. Holders should consult with their
own tax advisors regarding reporting requirements with respect to their shares.
Tax Consequences to Non-U.S. Holders
Dividends paid to
a Non-U.S. Holder in respect of our or shares generally will not be subject to U.S. federal income tax, unless the dividends are
effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required
by an applicable income tax treaty, are attributable to a permanent establishment or fixed base that such holder maintains in
the United States).
In addition, a Non-U.S.
Holder generally will not be subject to U.S. federal income tax on any gain attributable to a sale or other disposition of our
or shares unless such gain is effectively connected with its conduct of a trade or business in the United States (and, if required
by an applicable income tax treaty, is attributable to a permanent establishment or fixed base that such holder maintains in the
United States) or the Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable
year of sale or other disposition and certain other conditions are met (in which case, such gain from United States sources generally
is subject to tax at a 30% rate or a lower applicable tax treaty rate).
Dividends and gains
that are effectively connected with the Non-U.S. Holder’s conduct of a trade or business in the United States (and, if required
by an applicable income tax treaty, are attributable to a permanent establishment or fixed base in the United States) generally
will be subject to tax in the same manner as for a U.S. Holder and, in the case of a Non-U.S. Holder that is a corporation for
U.S. federal income tax purposes, may also be subject to an additional branch profits tax at a 30% rate or a lower applicable
tax treaty rate.
Information Reporting and Backup
Withholding
In general, information
reporting for U.S. federal income tax purposes generally should apply to distributions made on the securities within the United
States to a non-corporate U.S. Holder and to the proceeds from sales and other dispositions of the securities by a non-corporate
U.S. Holder to or through a U.S. office of a broker. Payments made (and sales and other dispositions effected at an office) outside
the United States generally should be subject to information reporting in limited circumstances.
Dividend payments
made to U.S. Holders and proceeds paid from the sale or other disposition the securities may be subject to information reporting
to the IRS and possible U.S. federal backup withholding at a current rate of 28%. Certain exempt recipients, such as corporations,
are not subject to these information reporting requirements. Backup withholding will not apply to a U.S. Holder who furnishes
a correct taxpayer identification number and makes any other required certification, or who is otherwise exempt from backup withholding.
U.S. Holders who are required to establish their exempt status must provide a duly executed IRS Form W-9.
A Non-U.S. Holder
generally may eliminate the requirement for information reporting and backup withholding by providing certification of its foreign
status, under penalties of perjury, on a duly executed applicable IRS Form W-8 or by otherwise establishing an exemption.
Backup withholding
is not an additional tax. Rather, the amount of any backup withholding will be allowed as a credit against a U.S. Holder’s
or a non-U.S. Holder’s U.S. federal income tax liability and may entitle such holder to a refund, provided that certain
required information is timely furnished to the IRS.
PROSPECTIVE PURCHASERS
OF OUR SECURITIES SHOULD CONSULT WITH THEIR OWN TAX ADVISORS REGARDING THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO
THEIR PARTICULAR SITUATIONS AS WELL AS ANY ADDITIONAL TAX CONSEQUENCES RESULTING FROM PURCHASING, HOLDING OR DISPOSING OF OUR
SECURITIES, INCLUDING THE APPLICABILITY AND EFFECT OF THE TAX LAWS OF ANY STATE, LOCAL OR NON-U.S. JURISDICTION, INCLUDING ESTATE,
GIFT, AND INHERITANCE LAWS AND APPLICABLE TAX TREATIES.
F. DIVIDENDS
AND PAYING AGENTS.
Not applicable.
G. STATEMENT
BY EXPERTS.
None.
H. DOCUMENTS
ON DISPLAY.
We previously filed a registration statement
on Form F-1 (File No. 333-166056) with the SEC relating to our initial public offering in May 2010. This annual report does
not contain all of the information in the registration statement and the exhibits and financial statements included with the registration
statement. References in this annual report to any of our contracts, agreements or other documents are not necessarily complete,
and you should refer to the exhibits attached to the registration statement for copies of the actual contracts, agreements or
documents. In addition, we will file annual reports on Form 20-F and submit other information under cover of Form 6-K. As a foreign
private issuer, we are exempt from the proxy requirements of Section 14 of the Exchange Act and our officers, directors and principal
shareholders will be exempt from the insider short-swing disclosure and profit recovery rules of Section 16 of the Exchange Act.
You may read and copy the registration statement, the related exhibits and other materials we file with the SEC at the SEC’s
public reference room in Washington, D.C. at 100 F Street, Room 1580, N.E., Washington, D.C.20549. You can also request copies
of those documents, upon payment of a duplicating fee, by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference rooms. The SEC also maintains an Internet site that contains reports, proxy
and information statements and other information regarding issuers that file with the SEC. The website address is
http://www.sec.gov
.
You may also request a copy of these filings, at no cost, by writing us at LAB 32, SOHO 3Q, No 9, Guanghua Road, Chaoyang District,
Beijing, People’s Republic of China, 100020 or telephoning us at (86) 10-85866721.
I. SUBSIDIARY
INFORMATION
For a listing of our
subsidiaries, see “Item 4. Information on the Company – C. Organizational Structure.”
ITEM 11. QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Interest Rate Risk
As of December 31,
2018, we had no short-term or long-term borrowings. If we borrow money in future periods, we may be exposed to interest rate risk.
Our exposure to market risk for changes in interest rates relates primarily to the interest income generated by our cash deposits
with our banks and held-to-maturity investments. We have not used any derivative financial instruments in our investment portfolio.
Interest earnings instruments carry a degree of interest rate risk. We have not been exposed, nor do we anticipate being exposed
to material risks due to changes in interest rates. However, our future interest income may fall short of expectations due to
changes in interest rates.
Foreign Exchange Risk
Translation adjustments
amounted to $447,246 and $90,671 gain as of the fiscal year ended December 31, 2018 and 2017, respectively. The Company translated
balance sheet amounts with the exception of equity at December 31, 2018 at RMB6.8632 to $1.00 as compared to RMB 6.5342 to $1.00
at December 31, 2017. The Company stated equity accounts at their historical rate. The average translation rates applied to income
statement accounts for the fiscal year ended December 31, 2018 and 2017 were RMB6.6174 and RMB 6.7356 to US$1.00, respectively.
So far, the PRC government has been able to manage a stable exchange rate between RMB and the U.S. Dollar. Our future downward
translation adjustments may occur and can be significant due to changes in such exchange rate.
If we decide to convert
our RMB into U.S. dollars for the purpose of making payments for dividends on our ordinary shares or for other business purposes,
appreciation of the U.S. dollar against the RMB would have a negative effect on the U.S. dollar amount available to us.
The PRC government
imposes strict restrictions on PRC resident companies regarding converting RMB into foreign currencies and vice versa under capital
account transactions, such as receiving equity investments from outside of the PRC, making equity investments outside of the PRC,
borrowing money from or lending money outside of the PRC, and repaying debt or remitting liquidated assets and/or accumulated
profits outside of the PRC. These transactions have to be approved by the relevant PRC government authorities, including but not
limited to the commerce bureau, the tax bureau and the State Administration of Foreign Exchange, or SAFE, and have to be conducted
at banks entrusted by the local SAFE branch. As our business continues to grow, we may need to continuously finance our PRC subsidiaries
by raising capital from outside of the PRC. The restriction on converting RMB into foreign currencies, and vice versa, may limit
our ability to use capital resources from outside of the PRC. Such restrictions may also limit our ability to remit profits from
our PRC subsidiaries outside of the PRC, therefore potentially limiting our ability to pay dividends to our shareholders. In addition,
such restrictions will limit our ability to freely transfer temporary excess cash in our or our subsidiaries’ bank accounts
in and out of the PRC, therefore limiting our ability to conduct cross-border cash management activities to optimize the utilization
of our cash.
Inflation
Although China has
experienced an increasing inflation rate, inflation has not had a material impact on our results of operations in recent years.
According to the National Bureau of Statistics of China, the change in the consumer price index in China was 0.46%, (0.77%), and
1.16% in 2001, 2002 and 2003, respectively. However, in connection with a 3.9% increase in 2004, the PRC government announced
measures to restrict lending and investment in China in order to reduce inflationary pressures in China’s economy. Following
the government’s actions, the consumer price index decreased to 1.8% in 2005 and to 1.5% in 2006. In 2007, the consumer
price index increased to 4.8%. In response, China’s central bank, the People’s Bank of China, announced that the bank
reserve ratio would rise half a percentage point to 15.5% in an effort to reduce inflation pressures. China’s consumer price
index growth rate reached 8.7% year over year in 2008. In 2009 and 2010, the change in the consumer price index in China was minus
0.7% and 3.3%.
China consumer
price index in December 2018 was 0.1% higher than that of the same period in 2017.China consumer price index in December 2017
was 0.3% lower than that of the same period in 2016. China consumer price index in December 2016 was 0.5% higher than that of
the same period in 2015. China consumer price index in December 2015 was 0.1% higher than that of the same period in 2014.
The results of the PRC government’s actions to combat inflation are difficult to predict. Adverse changes in the
Chinese economy, if any, will likely impact the financial performance of a variety of industries in China that use, or would
be candidates to use, our software products and services.
ITEM 12. DESCRIPTION
OF SECURITIES OTHER THAN EQUITY SECURITIES.
A. DEBT SECURITIES.
Not applicable.
B. WARRANTS AND
RIGHTS.
Not applicable.
C. OTHER SECURITIES.
Not applicable.
D. AMERICAN DEPOSITARY
SHARES.
Not applicable.
Luokung Technology Corp. (the “Company”
or “LKCO”), formerly Kingtone Wirelessinfo Solution Holding Ltd (“Kingtone Wireless”) was incorporated
in the British Virgin Islands on October 27, 2009 under the name of Reizii Capital Management Limited. It has wholly-owned subsidiaries
and a variable interest entity (“VIE”). Its wholly-owned subsidiaries include: Topsky Info-tech Holdings Pte Ltd.
(“Topsky”), which was established in Singapore on November 3, 2009, and Xi’an Softech Co., Ltd. (“Softech”),
which was established in Xi’an, Shaanxi Province, China on November 27, 2009 by Topsky. Its VIE is Xi’an Kingtone
Information Technology Co., Ltd. (“Kingtone Information”) which was incorporated in Xi’an, Shaanxi province,
China on December 28, 2001.
On December 17, 2009, Reizii Capital Management
Limited changed its name to Kingtone Wirelessinfo Solution Holding Ltd.
On March 23, 2010, the board of directors
of Kingtone Wireless resolved to change the fiscal year end of Kingtone Wireless and its wholly-owned subsidiaries, Topsky and
Softech, from November 30 to September 30 so as to have the same fiscal year end as Kingtone Information.
On May 14, 2010, Kingtone Wireless completed
the initial public offering of its American Depositary Shares (“ADSs”) at a price of $4.00 per ADS and listed its
ADSs on the NASDAQ Capital Market under the symbol “KONE.” Kingtone Wireless sold an aggregate of 4,000,000 ADSs,
representing 4,000,000 ordinary shares and received net proceeds of approximately $14.5 million, net of underwriting discounts
and other offering expenses.
On August 17, 2018, Kingtone Wireless
consummated an asset exchange transaction, pursuant to which it exchanged all issued and outstanding capital stock in Topsky Info-Tech
Holdings Pte Ltd., the parent of Softech, for the issued and outstanding capital stock of LK Technology Ltd. (“LK Technology”)
(the “Asset Exchange”). In connection with the Asset Exchange, Kingtone Wireless changed its name to Luokung Technology
Corp. on August 20, 2018, and on September 20, 2018, issued to the shareholders of C Media Limited, the former parent of LK Technology,
(i) 185,412,599 of its ordinary shares, par value $0.01 per share and (ii) 1,000,000 of its preferred shares. Upon the consummation
of the Asset Exchange, the Company ceased the previous business operations and became a company focused on the provision of Wi-Fi
and mobile application products for long distance rail travelers in China.
Following the consummation of the Asset
Exchange, on October 4, 2018, the Company changed its fiscal year end from September 30 to the fiscal year end of LK Technology,
December 31.
On August 25, 2018, LK Technology entered into a Stock Purchase Agreement (the “Agreement”)
with the shareholders (“Shareholders”) of Superengine Holding Limited, a limited liability company incorporated under
the laws of the British Virgin Islands (“Superengine”), pursuant to which LK Technology acquired all of the issued
and outstanding shares of Superengine for an aggregate purchase price of US$60 million (the “Purchase Price”), which
was paid by the issuance of its Ordinary Shares in an amount equal to the quotient of (x) the Purchase Price divided by (y) the
average of the closing prices of the Ordinary Shares on the NASDAQ Capital Market over the 12 months period preceding July 31,
2018. Further details are in Note 3.
Luokung Technology Corp., its subsidiaries
and its variable interest entities (“VIEs”) (collectively the “Company”) operate mobile application service
for long-distance travel in the People’s Republic of China (the “PRC”). The core mobile application product,
Luokuang mobile application, which is made as an LBS-social contents and services distribution platform. It offers functions based
on various travel scenarios, e.g. information, entertainment, travel, e-commerce, O2O, advertising, etc.
As of December 31, 2018, details of the Company’s
subsidiaries and VIEs are as follows:
The consolidated financial statements
of the Company have been prepared in accordance with accounting principles generally accepted in the United States of America
(“US GAAP”).
The Company incurred losses from operations of $10,819,852, $6,871,542 and $12,283,219 for the years ended
December 31, 2018, 2017 and 2016, respectively. As of December 31, 2018, the Company had cash of $1,192,218 and a working capital
deficit of $2,195,377. These conditions indicate the existence of substantial doubt over the Company’s ability to continue
as a going concern. In order to alleviate the substantial doubt, the Company intend to meet the cash requirements for the next
12 months from the issuance date of this report through a combination of debt and equity financing such as by way of private placements.
As disclosed in Note 17, on January 16, 2019, the Company entered into a Securities Purchase Agreement with Honbridge Holdings
Limited, and the Company agreed to sell 2,000,000 Ordinary Shares of the Company at a price of $6 per share for a total amount
of $12,000,000. From 2019 and onwards, the Company will focus on improving operational efficiency and cost reduction, and enhancing
marketing functions to attract more customers. The Company regularly monitors its current and expected liquidity requirements to
ensure that it maintains sufficient cash balances and accessible credit to meet its liquidity requirements in the short and long
term. Based on working capital conditions and forecast for future operations, the Company believes that it will be able to meet
its payment obligations and other commitments for at least the following twelve months.
The consolidated financial statements
include the financial statements of the Company, its subsidiaries, including the wholly-foreign owned enterprises (“WFOEs”),
entities we control by contract and VIEs for which the Company is the primary beneficiary. All transactions and balances among
the Company, its subsidiaries, entities controlled by contract and consolidated VIEs have been eliminated upon consolidation.
The results of subsidiaries, entities controlled by contract and consolidated VIEs acquired or disposed of are recorded in the
consolidated statements of operations from the effective date of acquisition or up to the effective date of disposal, as appropriate.
A subsidiary is an entity in which (i)
the Company directly or indirectly controls more than 50% of the voting power; or (ii) the Company has the power to appoint or
remove the majority of the members of the board of directors or to cast a majority of votes at the meeting of the board of directors
or to govern the financial and operating policies of the investee pursuant to a statute or under an agreement among the shareholders
or equity holders. An entity controlled by contract is required to be consolidated by the primary beneficiary of the entity if
the equity holders in the entity do not have controlling financial interest in the entity. A VIE is required to be consolidated
by the primary beneficiary of the entity if the equity holders in the entity do not have the characteristics of a controlling
financial interest or do not have sufficient equity at risk for the entity to finance its activities without additional subordinated
financial support from other parties.
Suzhou Superengine and its subsidiary,
Auhui Superengine are consolidated pursuant to an agreement signed between the legal owners of Suzhou Superengine and Zhong Chuan
Shi Xun giving all the rights and obligations and control of Suzhou Superengine to Zhong Chuan Shi Xun.
To comply with the PRC legal restrictions
on foreign ownership of companies that operate mobile application services, the Company operates in such restricted services in
the PRC through certain PRC domestic companies, whose equity interests are held by certain management members or founders of the
Company. Part of the registered capital of these PRC domestic companies was funded by certain management members or founders of
the Company. The Company has entered into certain exclusive business services agreements with these PRC domestic companies, which
entitle it to receive a majority of their residual returns and make it obligatory for the Company to absorb a majority of the
risk of losses from their activities. In addition, the Company has entered into certain agreements with those management members
or founders, including equity interest pledge agreements of the equity interests held by those management members or founders
and exclusive option agreements to acquire the equity interests in these companies when permitted by the PRC laws, rules and regulations.
Details of the typical VIE structure of
the Company’s significant consolidated VIEs, primarily domestic companies associated with the operations such as Zhong Chuan
Shi Xun, Zhong Chuan Rui You, Huoerguosi Luokuang, and Jiu Zhou Shi Dai, are set forth below:
The VIE equity holders have
granted the WFOEs exclusive call options to purchase their equity interest in the VIEs at an exercise price equal to the higher
of (i) the registered capital in the VIEs; and (ii) the minimum price as permitted by applicable PRC laws. Each relevant VIE has
further granted the relevant WFOE an exclusive call option to purchase its assets at an exercise price equal to the book value
of the assets or the minimum price as permitted by applicable PRC laws, whichever is higher. The WFOEs may nominate another entity
or individual to purchase the equity interest or assets, if applicable, under the call options. Each call option is exercisable
subject to the condition that applicable PRC laws, rules and regulations do not prohibit completion of the transfer of the equity
interest or assets pursuant to the call option. Each WFOE is entitled to all dividends and other distributions declared by the
VIE, and the VIE equity holders have agreed to give up their rights to receive any distributions or proceeds from the disposal
of their equity interests in the VIE which are in excess of the original registered capital that they contributed to the VIE,
and to pay any such distributions or premium to the WFOE. The exclusive call option agreements remain in effect until the equity
interest or assets that are the subject of such agreements are transferred to the WFOEs.
Pursuant to the relevant equity
pledge agreements, the relevant VIE equity holders have pledged all of their interests in the equity of the VIEs as a continuing
first priority security interest in favor of the corresponding WFOEs to secure the performance of obligations by the VIEs and/or
the equity holders under the other structure contracts. Each WFOE is entitled to exercise its right to dispose of the VIE equity
holders’ pledged interests in the equity of the VIE and has priority in receiving payment by the application of proceeds
from the auction or sale of such pledged interests, in the event of any breach or default under the loan agreement or other structure
contracts, if applicable. These equity pledge agreements remain in force for the duration of the relevant loan agreement and other
structure contracts.
Each relevant VIE has entered
into an exclusive business services agreement with the respective WFOE, pursuant to which the relevant WFOE provides exclusive
business services to the VIE. In exchange, the VIE pays a service fee to the WFOE which typically amounts to what would be substantially
all of the VIE’s pre-tax profit, resulting in a transfer of substantially all of the profits from the VIE to the WFOE.
The exclusive call option agreements
described above also enable the Company to receive substantially all of the economic benefits from the VIEs by typically entitling
the WFOEs to all dividends and other distributions declared by the VIEs and to any distributions or proceeds from the disposal
by the VIE equity holders of their equity interests in the VIEs that are in excess of the original registered capital that they
contributed to the VIEs.
Based on these contractual agreements,
the Company believes that the PRC domestic companies as described above should be considered as VIEs because the equity holders
do not have significant equity at risk nor do they have the characteristics of a controlling financial interest. Given that the
Company is the primary beneficiary of these PRC domestic companies, the Company believes that these VIEs should be consolidated
based on the structure as described above.
Under the contractual arrangements with
the consolidated VIEs, the Company has the power to direct activities of the consolidated VIEs and can have assets transferred
out of the consolidated VIEs under its control. Therefore, the Company considers that there is no asset in any of the consolidated
VIEs that can be used only to settle obligations of the consolidated VIEs, except for registered capital and PRC statutory reserves.
As all consolidated VIEs are incorporated as limited liability companies under the Company Law of the PRC, creditors of the consolidated
VIEs do not have recourse to the general credit of the Company for any of the liabilities of the consolidated VIEs.
Currently there is no contractual arrangement
which requires the Company to provide additional financial support to the consolidated VIEs. However, as the Company conducts
its businesses primarily based on the licenses and approvals held by its consolidated VIEs, the Company has provided and will
continue to provide financial support to the consolidated VIEs considering the business requirements of the consolidated VIEs,
as well as the Company’s own business objectives in the future.
The preparation of financial statements
in conformity with US GAAP requires the Company to make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts
of revenues and expenses during the reporting period. The most significant estimates are the allowance for doubtful accounts,
the useful lives of property and equipment and intangible assets, valuation allowance for deferred tax assets, impairment of long-lived
assets and goodwill. Actual results could differ from those estimates.
Fair value is the price that would be
received from selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement
date under current market conditions. When determining the fair value measurements for assets and liabilities required or permitted
to be recorded at fair value, the Company considers the principal or most advantageous market in which it would transact and it
considers assumptions that market participants would use when pricing the asset or liability.
Financial Accounting Standards Board (“FASB”)
Accounting Standards Codification (“ASC”) 820, Fair Value Measurements provides a fair value hierarchy which prioritizes
the inputs to valuation techniques used to measure fair value into three broad levels. The level in the hierarchy within which
the fair value measurement in its entirety falls is based upon the lowest level of input that is significant to the fair value
measurement as follows:
Level 1 applies to assets or liabilities
for which there are quoted prices in active markets for identical assets or liabilities.
Level 2 applies to assets or liabilities
for which there are inputs other than quoted prices included within Level 1 that are observable for the asset or liability such
as quoted prices for similar assets or liabilities in active markets; quoted prices for identical assets or liabilities in markets
with insufficient volume or infrequent transactions (less active markets); or model-derived valuations in which significant inputs
are observable or can be derived principally from, or corroborated by, observable market data.
Level 3 applies to assets or liabilities
for which there are unobservable inputs to the valuation methodology that are significant to the measurement of the fair value
of the assets or liabilities.
Cash primarily consist of cash, money
market funds, investments in interest bearing demand deposit accounts, time deposits and highly liquid investments with original
maturities of three months or less from the date of purchase and are stated at cost which approximates their fair value. As of
December 31, 2018 and 2017, the Company has no cash equivalents.
Accounts receivable are recognized and
carried at the original invoiced amount less an allowance for any potential uncollectible amounts. An estimate for doubtful debts
is made when collection of the full amount is no longer probable. Bad debts are written off as incurred. The Company generally
does not require collateral from its customers.
The Company maintains allowances for doubtful
accounts for estimated losses resulting from the failure of customers to make payments on time. The Company reviews the accounts
receivable on a periodic basis and makes specific allowances when there is doubt as to the collectability of individual balances.
In evaluating the collectability of individual receivable balances, the Company considers many factors, including the age of the
balance, the customer’s payment history, its current credit-worthiness and current economic trends.
Property and equipment are carried at
cost less accumulated depreciation. Depreciation is calculated on a straight-line basis over the following estimated useful lives:
Costs of repairs and maintenance are expensed
as incurred and asset improvements are capitalized. The gain or loss on disposal of property and equipment is the difference between
the net sales proceeds and the carrying amount of the relevant assets and is recognized in the consolidated income statement.
When property and equipment are retired or otherwise disposed of, the cost and accumulated depreciation are removed from the accounts
and any resulting gain or loss is included in the results of operations for the respective period.
Assets under construction are not depreciated
until construction is completed and the assets are ready for their intended use.
Intangible assets with finite lives are amortized
using the straight-line method over the estimated economic lives.
Intangible assets have weighted average economic
lives from the date of purchase as follows:
The Company assesses goodwill for impairment
in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”)
subtopic 350-20, Intangibles—Goodwill and Other: Goodwill (“ASC 350-20”), which requires that goodwill to be
tested for impairment at the reporting unit level at least annually and more frequently upon the occurrence of certain events,
as defined by ASC 350-20.
The Company has the option to assess qualitative
factors first to determine whether it is necessary to perform the two-step test in accordance with ASC 350-20. If the Company
believes, as a result of the qualitative assessment, that it is more-likely-than-not that the fair value of the reporting unit
is less than its carrying amount, the two-step quantitative impairment test described below is required. Otherwise, no further
testing is required. In the qualitative assessment, the Company considers primary factors such as industry and market considerations,
overall financial performance of the reporting unit, and other specific information related to the operations. In performing the
two-step quantitative impairment test, the first step compares the carrying amount of the reporting unit to the fair value of
the reporting unit based on either quoted market prices of the ordinary shares or estimated fair value using a combination of
the income approach and the market approach. If the fair value of the reporting unit exceeds the carrying value of the reporting
unit, goodwill is not impaired and we are not required to perform further testing. If the carrying value of the reporting unit
exceeds the fair value of the reporting unit, then we must perform the second step of the impairment test in order to determine
the implied fair value of the reporting unit’s goodwill. The fair value of the reporting unit is allocated to its assets
and liabilities in a manner similar to a purchase price allocation in order to determine the implied fair value of the reporting
unit goodwill. If the carrying amount of the goodwill is greater than its implied fair value, the excess is recognized as an impairment
loss.
In 2018, the Company performed a qualitative
assessment for goodwill. Based on the requirements of ASC350-20, the Company evaluated all relevant factors, including but not
limited to macroeconomic conditions, industry and market conditions, financial performance. The Company weighed all factors in
their entirety and concluded that it was not more-likely-than-not the fair value was less than the carrying amount of the reporting
unit, and further impairment testing on goodwill was unnecessary as of December 31, 2018 and 2017.
Long-lived assets other than goodwill
are included in impairment evaluations when events and circumstances exist that indicate the carrying value of these assets may
not be recoverable. In accordance with FASB ASC 360, Property, Plant and Equipment, the Company assesses the recoverability of
the carrying value of long-lived assets by first grouping its long-lived assets with other assets and liabilities at the lowest
level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities (the asset group)
and, secondly, estimating the undiscounted future cash flows that are directly associated with and expected to arise from the
use of and eventual disposition of such asset group. If the carrying value of the asset group exceeds the estimated undiscounted
cash flows, the Company recognizes an impairment loss to the extent the carrying value of the long-lived asset exceeds its fair
value. The Company determines fair value through quoted market prices in active markets or, if quotations of market prices are
unavailable, through the performance of internal analysis using a discounted cash flow methodology or obtains external appraisals
from independent valuation firms. The undiscounted and discounted cash flow analyses are based on a number of estimates and assumptions,
including the expected period over which the asset will be utilized, projected future operating results of the asset group, discount
rate and long-term growth rate.
As of December 31, 2018 and 2017, the
Company assessed the impairment of its long-lived assets and identified impairment indications. For intangible assets, as the
Company is not going to use a software system that was purchased in 2014, an impairment loss of $724,437 on intangible assets
was recorded for the year ended December 31, 2018 ($nil for the years ended December 31, 2017 and 2016). For property plant and
equipment, the Company recorded an impairment loss for Wi-Fi equipment that will not be used of $1,228,362 ($nil for the years
ended December 31, 2017 and 2016).
The Company accounts for business combinations
using the acquisition method of accounting in accordance with FASB ASC topic 805, Business Combinations
.
Acquisition method
accounting requires that the consideration transferred be allocated to the assets, including separately identifiable assets and
liabilities the Company acquired, based on their estimated fair values. The consideration transferred in an acquisition is measured
as the aggregate of the fair values at the date of exchange of the assets given, liabilities incurred, and equity instruments
issued as well as the contingent considerations and all contractual contingencies as of the acquisition date. The costs directly
attributable to the acquisition are expensed as incurred. Identifiable assets, liabilities and contingent liabilities acquired
or assumed are measured separately at their fair value as of the acquisition date, irrespective of the extent of any noncontrolling
interests. The excess of (i) the total cost of acquisition, fair value of the noncontrolling interests and acquisition date fair
value of any previously held equity interest in the acquiree over (ii) the fair value of the identifiable net assets of the acquiree,
is recorded as goodwill. If the cost of acquisition is less than the fair value of the net assets of the subsidiary acquired,
the difference is recognized directly in earnings.
On January 1, 2018, the Company adopted ASC Topic 606 using the modified retrospective method applied
to those contracts which were not completed as of January 1, 2018. Results for reporting periods beginning after December 31, 2017
are presented under Topic 606, while prior period amounts are not adjusted and continue to be reported in accordance with our historic
accounting under Topic 605. There was no material effect from the adoption of ASC 606 to our financial statements.
The Company provides display-based online
advertising services to customers by integrating text description, image and video, and displaying the advertisements in a prominent
position of Luokuang mobile application on a cost-per-click basis. The customers pay us only when a user clicks on an advertisement
on the Luokuang mobile application. The Company recognizes revenue over time because the customer receives and consumes the benefit
of our advertising services throughout the contract period.
The Company generates revenues primarily
in the form of sale of software license and provision of technology solution services. License fees include perpetual license fees,
term license fees and royalties. Technology services primarily consist of fees for providing technology solution services that
enable customers to gain real-time operational intelligence by harnessing the value of their data.
Revenue for the sale of software licenses
is recognized at the point in time when the control of the provided goods is provided to our customers.
Technology solution revenue is
recognized over time, as the services are performed because the customer receives and consumes the benefit of our performance
throughout the contract period. Milestones with corresponding payment are stated in the contracts with customers. We bill for
the services we have performed when the milestones reached are accepted by the customer in accordance with the terms of the
contract. We recognize the revenues associated with these professional services as we deliver each agreed portion of the
services.
The Company does not offer credits or
refunds and therefore has not recorded any sales return allowance for any of the periods presented. Upon a periodic review of
outstanding accounts receivable, amounts that are deemed to be uncollectible are written off against the allowance for doubtful
accounts. The Company’s policy is to record revenues net of any applicable sales, use or excise taxes.
Deferred revenue represents prepayments
from customers for advertising service and is recognized as revenue when the advertising services are rendered.
The functional and reporting currency
of the Company and the Company’s subsidiaries domiciled in BVI and Hong Kong is the United States dollar (“U.S. dollar”).
The financial records of the Company’s other subsidiaries and VIEs located in the PRC are maintained in their local currency,
the Chinese Renminbi (“RMB”), which is the functional currency of these entities.
Monetary assets and liabilities denominated
in currencies other than the functional currency are translated into the functional currency at the rates of exchange ruling at
the balance sheet date. Transactions in currencies other than the functional currency during the year are converted into the functional
currency at the applicable rates of exchange prevailing when the transactions occurred. Transaction gains and losses are recognized
in the statements of operations.
The Company’s entities with a functional
currency of RMB translate their operating results and financial position into the U.S. dollar, the Company’s reporting currency.
Assets and liabilities are translated using the exchange rates in effect on the balance sheet date. Revenues, expenses, gains
and losses are translated using the average rate for the year. Retained earnings and equity are translated using the historical
rate. Translation adjustments are reported as cumulative translation adjustments and are shown as a separate component of other
comprehensive income.
ASC Topic 260 “Earnings per Share,”
requires presentation of both basic and diluted earnings per share (“EPS”) with a reconciliation of the numerator
and denominator of the basic EPS computation to the numerator and denominator of the diluted EPS computation. Basic EPS excludes
dilution. Diluted EPS reflects the potential dilution that could occur if securities or other contracts to issue common stock
were exercised or converted into common stock or resulted in the issuance of common stock that then shared in the earnings of
the entity.
Basic net loss per share is computed by
dividing net loss available to common stockholders by the weighted average number of shares of common stock outstanding during
the period. Diluted net loss per share is computed by dividing net loss by the weighted average number of shares of common stock,
common stock equivalents and potentially dilutive securities outstanding during each period. Potentially dilutive common shares
consist of the common shares issuable upon the exercise of common stock warrants (using the treasury stock method). Common stock
equivalents are not included in the calculation of diluted earnings per share if their effect would be anti-dilutive. In
a period in which the Company has a net loss, all potentially dilutive securities are excluded from the computation of diluted
shares outstanding as they would have had an anti-dilutive impact. During the years ended December 31, 2018, 2017 and 2016, there
were no potentially dilutive securities. The following table presents a reconciliation of basic and diluted net loss per
share:
Deferred income taxes are recognized for
temporary differences between the tax bases of assets and liabilities and their reported amounts in the financial statements,
net operating loss carry forwards and credits, by applying enacted statutory tax rates applicable to future years. Deferred tax
assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or
all of the deferred tax assets will not be realized. Current income taxes are provided for in accordance with the laws and regulations
applicable to the Company as enacted by the relevant tax authorities.
The impact of an uncertain income tax
position on the income tax return must be recognized at the largest amount that is more-likely-than not to be sustained upon audit
by the relevant tax authorities. An uncertain income tax position will not be recognized if it has less than a 50% likelihood
of being sustained. Additionally, the Company classifies the interest and penalties, if any, as a component of income tax expense.
For years ended December 31, 2018, 2017 and 2016, the Company did not have any material interest or penalties associated with
tax positions nor did the Company have any significant unrecognized uncertain tax positions.
The Company records accruals for certain
of its outstanding legal proceedings or claims when it is probable that a liability will be incurred and the amount of loss can
be reasonably estimated. The Company evaluates the developments in legal proceedings or claims that could affect the amount of
any accrual, as well as any developments that would make a loss contingency both probable and reasonably estimable. The Company
discloses the amount of the accrual if it is material.
Operating segments are reported in a manner consistent with the internal reporting provided to our chief
operating decision maker, who is our Chief Executive Officer (“CEO”), who reviews financial information presented on
a consolidated basis for purposes of making operating decisions, assessing financial performance and allocating resources. The
Company had one single operating and reportable segment for the years ended December 31, 2018, 2017 and 2016. The Company’s
customers and assets are located in the PRC, therefore, no geographical segment information is presented.
Parties are considered to be related to
the Company if the parties, directly or indirectly, through one or more intermediaries, control, are controlled by, or are under
common control with the Company. Related parties also include principal owners of the Company, its management, members of the
immediate families of principal owners of the Company and its management and other parties with which the Company may deal with
if one party controls or can significantly influence the management or operating policies of the other to an extent that one of
the transacting parties might be prevented from fully pursuing its own separate interests. The Company discloses all significant
related party transactions.
Leases have been classified as either
capital or operating leases. Leases that transfer substantially all the benefits and risks incidental to the ownership of assets
are accounted for as if there was an acquisition of an asset and incurrence of an obligation at the inception of the lease. All
other leases are accounted for as operating leases wherein rental payments are expensed as incurred.
When the Company is the lessor, minimum
contractual rental from leases are recognized on a straight-line basis over the noncancelable term of the lease. With respect
to a particular lease, actual amounts billed in accordance with the lease during any given period may be higher or lower than
the amount of rental revenue recognized for the period. Straight-line rental revenue commences when the customer assumes control
of the leased premises. Accrued straight-line rents receivable represents the amount by which straight-line rental revenue exceeds
rents currently billed in accordance with lease agreements. Contingent rental revenue is accrued when the contingency is removed.
Advertising costs include expenses associated
with direct marketing. All advertising costs are expensed as incurred and included in selling and marketing expenses. During the
years ended December 31, 2018, 2017 and 2016, advertising costs amounted to $14,071,241, $23,171,170 and $4,537,653, respectively.
Comprehensive loss includes net loss and
foreign currency translation adjustments and is presented net of tax. The tax effect is nil for the three years ended December
31, 2018, 2017 and 2016 in the consolidated statements of comprehensive loss.
Financial instruments that potentially
expose the Company to concentrations of credit risk consist primarily of cash and accounts receivable. The Company places its cash
with financial institutions with high-credit rating and quality in China. For the year ended December 31, 2018, four customers
accounted for 91% of total revenue. For the year ended December 31, 2017, two customers accounted for 95% of total revenue. For
the year ended December 31, 2016, four customers accounted for 70% of total revenue. At December 31, 2018 and 2017, the Company
had credit risk exposure of uninured cash in banks of $1,192,218 and $72,379, respectively.
The following customers had balances of
at least 10% of the total trade receivables at the respective balance sheet dates set forth below:
In February 2016, the FASB issued ASU No. 2016-02, “Leases (Subtopic 842).” The new guidance
requires lessees to recognize assets and liabilities arising from leases as well as extensive quantitative and qualitative disclosures.
A lessee will need to recognize on its balance sheet a right-of-use asset and a lease liability for the majority of its leases
(other than leases that meet the definition of a short-term lease). The lease liabilities will be equal to the present value of
lease payments. The right-of-use asset will be measured at the lease liability amount, adjusted for lease prepayment, lease incentives
received and the lessee’s initial direct costs. The standard is effective for fiscal years beginning after December 15, 2018,
and interim periods within those fiscal years. Early adoption is permitted. ASU 2016-02 is required to be applied using the modified
retrospective approach for all leases existing as of the effective date and provides for certain practical expedients. The Company
will adopt the new standard on January 1, 2019 using the modified retrospective approach.
Due
to its immaterial lease commitments at December 31, 2018,
the Company expect the impact of the standard adoption to increase
its assets and liabilities within its consolidated balance sheet. These increases will result from the recognition of its existing
right-of-use and liabilities required by ASU 2016-02.
In June 2016, the FASB issued ASU 2016-13,
“Financial Instruments—Credit Losses (Topic 326), Measurement of Credit Losses on Financial Instruments”, which
will be effective for fiscal years beginning after December 15, 2019, including interim periods within those fiscal years. The
guidance replaces the incurred loss impairment methodology with an expected credit loss model for which a company recognizes an
allowance based on the estimate of expected credit loss. The Company is currently evaluating the impact of adopting this standard
on its consolidated financial statements.
In January 2017, the FASB issued ASU 2017-04,
“Intangibles—Goodwill and Other (Topic 350): simplifying the test for goodwill impairment”, the guidance removes
Step 2 of the goodwill impairment test, which requires a hypothetical purchase price allocation. Goodwill impairment will now
be the amount by which a reporting unit’s carrying value exceeds its fair value, not the difference between the fair value
and carrying amount of goodwill which was the step 2 test before. The ASU should be adopted on a prospective basis for the annual
or any interim goodwill impairment tests beginning after December 15, 2019. Early adoption is permitted for interim or annual
goodwill impairment tests performed on testing dates after January 1, 2017. The Company is currently evaluating the impact of
adopting this standard on its consolidated financial statements.
During the year ended December 31, 2018,
the Company completed a business combination, to complement its businesses and achieve synergies. Results of the acquired entities’
operations have been included in the Company’s consolidated financial statements since the acquisition dates.
Goodwill, which is non-deductible for
tax purpose, is primarily attributable to the synergies expected to be achieved from the acquisition. Refer to Note 9 for details.
The valuations used in the purchase price
allocation described above were determined by the Company with the assistance of an independent third-party valuation firm. The
valuation report considered generally accepted valuation methodologies such as the relief from royalty method. As the acquiree
is a private company, the fair value estimate is based on significant inputs that market participants would consider, which mainly
include (a) discount rates, (b) a projected terminal values based on future cash flows (c) financial multiples of companies in
the same industries and (d) adjustments for lack of control or lack of marketability.
The pro forma results of operations for
these subsidiaries have not been presented because they are not material to the consolidated results of operations, either individually
or in the aggregate.
At December 31, 2018, the Company had
unused net operating loss carryforwards of approximately $ 30,529,390 for income tax purposes, which expire between 2019 to 2023.
At December 31, 2018, 2017 and 2016, these net operating losses carryforwards may result in future income tax benefits of approximately$6,230,296,
$5,043,944 and $4,008,863, respectively, however, because realization is uncertain at this time, a valuation allowance in the
same amount has been established. Deferred income taxes reflect the net effects of temporary differences between the carrying
amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes.
Significant components of the Company’s
deferred tax liabilities and assets of December 31, 2018 and 2017 are as follows:
The Company is not subject to taxation
in BVI under the current BVI law. Subsidiaries operating in the PRC are subject to PRC Enterprise Income Tax at the statutory rate
of 25% for the years ended December 31, 2018, 2017 and 2016. Two of our subsidiaries qualify for high-technology enterprises and
benefit from a preferential tax rate of 15%. They are qualified as a “high-technology enterprise” until the end of
the November 2021 and October 2021, respectively. Subsidiaries operating in Hong Kong are subject to Hong Kong income taxes at
a rate of 16.5% for the years ended December 31, 2018, 2017 and 2016.
A reconciliation of the income tax expense to the amount computed by applying the current PRC statutory
tax rate of 25% to the loss before income taxes in the consolidated statements of comprehensive income is as follows:
For the years ended December 31, 2018,
2017 and 2016, depreciation expense amounted to $2,897,135, $2,628,884 and $2,474,434, respectively, of which $2,806,811, $2,423,655
and 2,194,582, respectively, was included in cost of revenue, and $5,872, $117,648 and 121,740, respectively, was included in
selling and marketing expenses and the remainder was included in general and administrative expense.
The Company recognized an impairment loss
on property and equipment of $1,228,362, $0 and $0 for the years ended December 31, 2018, 2017 and 2016, respectively, for idled
Wi-Fi equipment.
Included in construction-in-progress were
Wi-Fi equipment under construction.
The Company recognized an impairment loss
on software of $724,437, $0 and $0 for the years ended December 31, 2018, 2017 and 2016, respectively, for the railway platform
software which was replaced by the software developed by Suzhou Superengine.
Amortization expense of intangible assets
was $2,223,592, $613,066 and $642,913 for the years ended December 31, 2018, 2017 and 2016, respectively.
As of December 31, 2018, future minimum amortization
expenses in respect of intangible assets are as follows:
In September of 2014, Zhong Chuan Shi
Xun acquired a 100% interest in Zhong Chuan Rui You for a consideration of $7,391,894 (RMB48,000,000). Zhong Chuan Rui You is
primarily engaged in on-train Wi-Fi business, deploying Wi-Fi equipment on trains and providing passengers with entertainment
and information services on trains. The book value of the identifiable net assets of Zhong Chuan Rui You was $151,958 (RMB963,000)
and goodwill of $7,239,936 was recorded.
In August of 2018, LK Technology acquired
a 100% interest in Superengine Holding Limited for a consideration of $60,000,000, which was paid by the issuance of ordinary
shares of the Company in an amount equal to the quotient of (x) the Purchase Price divided by (y) the average of the closing prices
of the Ordinary Shares on the NASDAQ Capital Market over the 12 months period preceding July 31, 2018. Superengine possesses patented
technologies in spatial-temporal big data indexing, storage, transmission and visualization that can be used in vector maps, HD
intelligent maps, interactive location services, smart cities, intelligent transportation systems, mapping and surveying, remote
sensing and monitoring. The book value of the identifiable net assets of Superengine was $1,440,349, an intangible asset of $54,070,987
and goodwill of $4,488,664 were recorded. Refer to Note 3 for details.
Amounts due to related parties are non-interest
bearing, unsecured and payable on demand.
Prior to the Asset Exchange, Kingtone
Wireless had 1,685,000 common shares issued and outstanding.
On August 17, 2018, in connection with
the Asset Exchange, on September 20, 2018, the Company issued to the shareholders of C Media Limited, the former parent of LK
Technology, (i) 185,412,599 of ordinary shares, par value $0.01 per share and (ii) 1,000,000 of our preferred shares.
On September 20, 2018, the Company issued
to the shareholders of Superengine Holding Limited, 12,219,959 of ordinary shares, par value $0.01 per share.
As of December 31, 2018, we had
199,317,558 common shares issued and outstanding.
The Group’s full-time employees
are entitled to staff welfare benefits including medical care, casualty, housing benefits, education benefits, unemployment insurance
and pension benefits through a PRC government-mandated multi-employer defined contribution plan. The Group is required to accrue
the employer-portion for these benefits based on certain percentages of the employees’ salaries. The total provision for
such employee benefits of $289,679, $170,227 and $353,033 during the years ended December 31, 2018, 2017 and 2016, respectively,
of which $9,945, $23,392 and $30,455, respectively, was charged to cost of revenue, $76,971, $48,957 and $97,408, respectively
was charged to selling and marketing expenses, $75,104, $49,717 and $86,934, respectively, was charged to general and administrative
expenses and $127,660, $48,161 and $138,236, respectively was charged to research and development expenses. The Group is required
to make contributions to the plan out of the amounts accrued for all staff welfare benefits except for education benefits. The
PRC government is responsible for the staff welfare benefits including medical care, casualty, housing benefits, unemployment
insurance and pension benefits to be paid to these employees.
As stipulated by the relevant law and
regulations in the PRC, the Group’s subsidiaries and VIEs in the PRC are required to maintain a non-distributable statutory
surplus reserve. Appropriations to the statutory surplus reserve are required to be made at not less than 10% of profit after
taxes as reported in the subsidiaries’ statutory financial statements prepared under PRC GAAP. Once appropriated, these
amounts are not available for future distribution to owners or shareholders. Once the general reserve accumulates to 50% of the
subsidiaries’ registered capital, the subsidiaries can choose not to provide more reserves. The statutory reserve may be
applied against prior year losses, if any, and may be used for general business expansion and production and increase in registered
capital of the subsidiaries. The Group allocated $Nil to statutory reserves during the years ended December 31, 2018, 2017 and
2016, respectively. The statutory reserves cannot be transferred to the Company in the form of loans or advances and are not distributable
as cash dividends except in the event of liquidation.
We have entered into operating lease agreements
primarily for our office spaces in China. These leases expire through 2019 and are renewable upon negotiation. Future minimum
rental payment required under the Office Lease is as follows:
On August 22, 2014, Zhong Chuan Rui You
and Gansu Jinlun Culture Media Co., Ltd. (“Gansu Jinlun”) signed a “Lanzhou Railway Bureau Air-conditioned Train
Wi-Fi Network System Advertising Operation Rights Agreement” for advertising on 72 trains of $1,467,880 (RMB9,604,633).
Due to a dispute on the project implementation, Zhong Chuan Rui You did not pay the advertising fee. On August 23, 2017, Gansu
Jinlun filed a lawsuit with Gansu Intermediate People’s Court. On December 19, 2017, Gansu Intermediate People’s Court
issued a verdict, ruling that Zhong Chuan Rui You settle the overdue advertising fee.
Zhong Chuan Rui You and Gansu Jinlun are
negotiating a potential settlement to resume the contract. According to legal counsel, it is probable that the settlement will
amount to approximately $459,000 (RMB3,000,000); therefore, this amount has been accrued in accounts payable.
On January 16, 2019, the Company entered
into a Securities Purchase Agreement with Honbridge Holdings Limited, and the Company agreed to sell 2,000,000 Ordinary Shares
of the Company at a price of $6 per share for a total amount of $12,000,000.