EXCLUSIVE CALL OPTION CONTRACT
Exhibit 4.25
English Translation for Reference
This Exclusive Call Option Contract (hereinafter referred to as “this Contract”) is made on
November 7, 2008 in Shenzhen:
BY AND AMONG:
Party A:
|
Agria Brother Biotech (Shenzhen) Co., Ltd. | |
Address:
|
Xxxx 000, 0/X, Xxxxxxxx Xxxxxxxx, Xxxxx Water River Road, Luohu District, Shenzhen | |
Party B:
|
Xx Xxxx, a citizen of the PRC with ID card number: 420983197609010023 | |
Party C:
|
Shenzhen Guanli Agricultural Technology Co., Ltd. | |
Address:
|
Xxxx 0000, Xxxxx 0, Xxxxxxx Xxxxxxxx, Mintian Road, Futian Center District, Shenzhen |
WHEREAS:
| 1. | Party A is a wholly foreign-owned enterprise incorporated in Shenzhen under the laws of the
People’s Republic of China (hereinafter referred to as the “PRC”, and for the purpose of this
Contract, excluding the Hong Kong Special Administrative Region, Macao Special Administrative
Region and Taiwan); |
| 2. | Party B is a citizen of the PRC, who holds 51% equity interest of Shenzhen Guanli
Agricultural Technology Co., Ltd. (“Guanli”); |
| 3. | Guanli is a limited liability company established in Shenzhen under the laws of the PRC; |
| 4. | Party B intends to grant to Party A an exclusive call option so that Party A may request
Party B to sell her equity interest to it upon certain conditions are satisfied. |
NOW, THEREFORE, IT IS AGREED as follows after mutual consultation:
CHAPTER
1 SALE AND PURCHASE OF EQUITY INTEREST
| 1.1 | Grant of Option |
Party B hereby irrevocably grants to Party A an option to purchase or designate any person
or persons (hereinafter referred to as the “Designated Person”) to purchase from Party B all
or part of her equity interest in Guanli at any time according to the steps for exercise of
the option as determined by Party A at its sole discretion to the extent permitted by the
PRC laws and at the price specified in Article 1.3 hereof (hereinafter referred to as the
“Call Option”). Except for Party A and/or the Designated Person, Party B shall not sell,
offer to sell, transfer, offer as gift nor pledge any equity interest of Guanli to any other
third parties. Guanli hereby agrees to the grant of the Call Option by Party B to Party A
and/or the Designated Person. The term “person” specified in this Article and this Contract
shall include individuals, corporations, joint ventures, partnerships, enterprises, trusts
or non-corporate bodies.
| 1.2 | Steps for Exercise of the Call Option |
Subject to the provisions of the PRC laws and regulations, Party A and/or the Designated
Person may exercise the Call Option by giving written notice to Party B (hereinafter
referred to as the “Equity Purchase Notice”) and specifying the portion of equity interest
to be purchased from Party B (hereinafter referred to as the “Purchased Equity”) and the
manner in which the purchase is made.
| 1.3 | Purchase Price |
| 1.3.1 | When Party A exercises its Call Option, unless an appraisal is required to be
made in respect of the equity interest by applicable PRC laws and regulations then in
effect or there are other restrictions imposed by such PRC laws and regulations on the
price of equity interest, the purchase price payable by Party A to Party B in respect
of all of the equity interest (hereinafter referred to as the “Purchase Price”) shall
be RMB One (1). Party A shall also release the obligation of Party B to make repayment
under the Loan Contract dated October 6, 2008 between Party A and Party B,
respectively. |
| 1.3.2 | If an appraisal is required to be made in respect of the equity interest by
the PRC laws and regulations that are applicable at the time when Party A exercises its
Call Option or there are other restrictions imposed by such PRC laws and regulations on
the price of equity interest, the parties agree that the Purchase Price shall the
minimum price permitted by applicable laws. |
| 1.3.3 | If Party A chooses to purchase part of the equity interest, the exercise price
of the Call Option shall be adjusted according the ratio of the Purchased Equity to the
whole equity interests of Guanli. |
| 1.4 | Transfer of the Purchased Equity |
For each exercise of the Call Option:
| 1.4.1 | Party B shall cause Guanli to hold a shareholders’ meeting in a timely manner,
during which a resolution approving the transfer of equity interest by Party B to Party
A and/or the Designated Person shall be passed and she shall procure other shareholders
to give up their right of first refusal in respect of the Purchased Equity in writing; |
| 1.4.2 | Party B shall sign an equity transfer contract in relation to each transfer
with Party A and/or the Designated Person (as applicable) in accordance with the
requirements of this Contract and the Equity Purchase Notice in connection with the
Purchased Equity; |
| 1.4.3 | The relevant parties shall execute all other necessary contracts, agreements
or documents, obtain all necessary government approvals and consents, and take all
necessary actions to grant the valid ownership of the Purchased Equity to Party A
and/or the Designated Person without any security interest being attached thereto and
procure Party A and/or the Designated Person to become the legal owner of the Purchased
Equity. For the purpose of this Article and this Contract, “security interest” shall
include guarantees, mortgages, pledges, third parties’ rights or interests, any share
options, acquisition rights, right of first refusal, right to offset, ownership
retention or other security arrangements but exclude any security interest arising from
the Equity Pledge Contract dated November 7, 2008 by and among Party A, Party B and
Guanli (hereinafter referred to as the “Equity Pledge Contract”). |
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| 1.5 | Payment |
CHAPTER
2 UNDERTAKINGS RELATING TO EQUITY INTEREST
| 2.1 | Joint undertakings relating to Guanli |
Party B and Party C hereby jointly undertake as follows:
| 2.1.1 | Without the prior written consent of Party A, they shall not in any manner
supplement, change or amend the articles of association of Guanli, increase or decrease
its registered capital, or otherwise change the structure of its registered capital; |
| 2.1.2 | Guanli shall maintain its corporate existence in accordance with good
financial and business standards and practices by operating its business and handling
its affairs in a prudent and efficient manner; it shall make its best endeavour to
ensure that Guanli continues to own all permits, licenses and approvals that are
necessary for its operation and that such permits, licenses and approvals will not be
cancelled; it shall make its best endeavour to keep the current organizational
structure and the senior management of the company unchanged, and to maintain the
relationship with its customers so as to guarantee that there will not be any material
adverse effect on the goodwill and operation of Guanli after the delivery of equity
interest as agreed; |
| 2.1.3 | Without the prior written consent of Party A, Guanli shall not, at any time
after the date hereof, sell, transfer, mortgage or otherwise dispose of the legal or
beneficial interest in any assets, businesses or revenues of Guanli, nor allow any
other security interest to be created thereon; |
| 2.1.4 | Without the prior written consent of Party A, Guanli shall not incur, inherit,
guarantee or allow the existence of any debt, except for (i) debts incurred in the
normal or ordinary course of business other than through loans; and (ii) debts
disclosed to Party A for which Party A’s written consent has been obtained; |
| 2.1.5 | Guanli shall always operate all of its businesses during the ordinary course
of business to maintain its asset value, and shall refrain from any action/omission
that may affect its business operation and asset value; |
| 2.1.6 | Without the prior written consent of Party A, Guanli shall not enter into any
material contract, except for those contracts that are entered into in the ordinary
course of business (for the purpose of this paragraph, a contract with a value
exceeding RMB One Million (1,000,000) shall be deemed as a material contract); |
| 2.1.7 | Without the prior written consent of Party A, Guanli shall not provide any
loan or credit to any person; |
| 2.1.8 | Guanli shall, at the request of Party A, provide it with information relating
to the business operation and financial condition of Guanli; |
| 2.1.9 | Guanli shall take out and maintain insurance from an insurance company
recognized by Party A. The coverage and type of insurance shall be the same as those
of the insurance typically taken out by other companies that operate businesses similar
to Guanli in the same region and possess property or assets similar to Guanli; |
| 2.10 | Without the prior written consent of Party A, Guanli shall not merge or
consolidate with, or acquire or invest in any person; |
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| 2.1.11 | Guanli shall immediately notify Party A of the occurrence or possible occurrence of
any litigation, arbitration or administrative proceedings relating to Guanli’s assets,
businesses and revenues; |
| 2.1.12 | To maintain the ownership by Guanli of all of its assets, it shall execute all
necessary or appropriate documents, take all necessary or appropriate actions and make
all necessary or appropriate claims or raise necessary and appropriate defenses against
all claims; |
| 2.1.13 | Without the prior written consent of Party A, Guanli shall not in any manner
distribute dividends to its shareholders, provided that upon Party A’s written request,
it shall immediately distribute all or part of its distributable profits to its
shareholders; |
| 2.1.14 | Within the term hereof, Guanli shall operate its business in compliance with all
applicable laws, regulations, administrative rules and regulations of the PRC, and
there will not be any material adverse effect on the business operation or assets of
Guanli due to any breach of the above requirements; |
| 2.1.15 | If Party A exercises the Call Option according to the conditions of this Contract,
Guanli shall make its best endeavour to obtain all government approvals and other
consents (if applicable) that are necessary for the completion of the equity transfer
as soon as possible; |
| 2.1.16 | At the request of Party A, they shall appoint any persons designated by Party A as
directors of Guanli. |
| 2.2 | Undertakings relating to Party B |
Party B hereby undertakes that:
| 2.2.1 | Without the prior written consent of Party A, she will not, at any time after
the date hereof, sell, transfer, mortgage or otherwise dispose of any legal or
beneficial interest in the equity interest, nor allow any other security interest to be
created thereon, except for the pledge right under the Equity Pledge Contract; |
| 2.2.2 | Without the prior written consent of Party A, she will not vote in favor of
or support or execute any shareholders’ resolution at a shareholders’ meeting of Guanli
to approve the sale, transfer, mortgage or disposal in any other manner of any legal or
beneficial interest in the equity interest, nor allow any security interest to be
created thereon, except for the same is made to Party A or any person designated by it; |
| 2.2.3 | Without the prior written consent of Party A, she will not vote in favor of
or support or execute any shareholders’ resolution at a shareholders’ meeting of Guanli
to approve the merger or consolidation of Guanli with any person, or the acquisition of
or investment in any person; |
| 2.2.4 | She will immediately notify Party A of the occurrence or possible occurrence
of any litigation, arbitration or administrative proceedings relating to the equity
interest held by her; |
| 2.2.5 | She will procure the shareholders’ meeting of the company to vote in favor of
the transfer of the Purchased Equity as set forth in this Contract; |
| 2.2.6 | To maintain her ownership in the equity interest, she will execute all
necessary or appropriate documents, take all necessary or appropriate actions and make
all necessary or appropriate claims or raise necessary and appropriate defenses against
all claims; |
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| 2.2.7 | At the request of Party A, she will appoint any persons designated by Party A
as directors of Guanli; |
| 2.2.8 | At the request of Party A at any time, she will unconditionally and promptly
transfer her equity interest to Party A and/or the Designated Person at any time, and
give up her right of first refusal in respect of other equity interests to be
transferred; |
| 2.2.9 | She will strictly observe the provisions of this Contract and other contracts
jointly or separately executed by and among Party B, Guanli and Party A, perform her
obligations hereunder and thereunder, and refrain from action/omission that may affect
the effectiveness and enforceability thereof. |
CHAPTER 3 REPRESENTATIONS AND WARRANTIES
Party B and Guanli hereby represent and warrant to Party A as of the date hereof and each date of
transfer:
| 3.1 | They have the right to execute and deliver this Contract and any equity transfer contracts to
which they are a party and which are entered into in respect of each transfer of the Purchased
Equity hereunder (each, a “Transfer Contract”), and to perform their respective obligations
under this Contract and any Transfer Contracts. This Contract and the Transfer Contracts to
which they are a party, once executed, will constitute their legal, valid and binding
obligations and shall be enforceable against them in accordance with the provisions thereof; |
| 3.2 | The execution and delivery of this Contract or any Transfer Contracts and the performance of
their respective obligations under this Contract or any Transfer Contracts shall not: (i)
result in any violation of any applicable PRC laws and regulations; (ii) be in conflict with
their articles of association or other constituent documents; (iii) result in the violation of
any contracts or documents to which they are a party or which are binding upon them, or
constitute any breach under any contracts or documents to which they are a party or which are
binding upon them; (iv) result in the violation of any conditions for the grant and/or
continued effectiveness of any licenses or permits issued to either of them; or (v) result in
the suspension or revocation of or imposition of additional conditions to any licenses or
permits issued to either of them; |
| 3.3 | Guanli has a good and merchantable title to all of its assets. Guanli has not created any
security interest on its assets; |
| 3.4 | Guanli does not have any outstanding debts, except for (i) debts incurred in the ordinary
course of its business, and (ii) debts disclosed to Party A for which Party A’s written
consent has been obtained; |
| 3.5 | Guanli has complied with all PRC laws and regulations applicable to the acquisition of
assets; |
| 3.6 | There are no ongoing, pending or threatened litigation, arbitration or administrative
proceedings relating to Guanli or the equity interest in or assets of Guanli; and |
| 3.7 | Party B has a good and merchantable title and a complete and valid disposal right to all of
her equity interests (except for the restrictions under the PRC laws and regulations). Save
for the security interests under the Equity Pledge Contract, she has not created any security
interest on her equity interest and is free from any third party claims. |
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CHAPTER 4 ASSIGNMENT OF THIS CONTRACT
| 4.1 | Unless with the prior written consent of Party A, Party B and Guanli shall not transfer their
respective rights and obligations hereunder to any third parties. |
| 4.2 | Party B and Guanli hereby agree that Party A shall have the right to transfer its rights and
obligations hereunder to any third parties when necessary. Party A shall only be required to
serve written notice to Party B and Guanli when such transfer is made, and no consent shall be
further required from Party B or Guanli in respect of such transfer. |
CHAPTER
5 EFFECTIVENESS AND TERM
| 5.1 | This Contract shall become effective as of the date first written above. |
| 5.2 | This Contract shall be automatically terminated only after Party A exercises its option to
purchase all of the equity interests in Guanli pursuant to the requirements of this Contract,
except for the early termination by this Contract or pursuant to the provisions of the
relevant agreements separately signed by the parties hereto. |
| 5.3 | If, during the period stipulated in Article 5.2, the operation term of Party A or Guanli
(including any extended term) expires or either party terminates due to other reasons, this
Contract shall be terminated at the time of the termination of such party, except for the
circumstances where Party A has transferred its rights and obligations pursuant to Article 4.2
hereof. |
CHAPTER
6 APPLICABLE LAWS, DISPUTE RESOLUTION AND LIABILITIES FOR BREACH
| 6.1 | Applicable Laws |
The formation of this Contract, its effectiveness, interpretation and performance, as well
as the dispute resolution hereunder shall be protected and governed by the laws of the PRC.
| 6.2 | Dispute Resolution |
Any disputes between the parties arising from the interpretation and performance of any
provisions hereof shall be resolved in good faith by them through consultation. If no
agreement can be reached within thirty (30) days after a Party proposes to resolve a dispute
through consultation, either party may submit such dispute to China International Economic
and Trade Arbitration Commission for arbitration in accordance with its arbitration rules
then in force. The seat of arbitration shall be Shenzhen. The arbitration shall be
conducted in Chinese. The arbitral award shall be final and binding upon the parties.
| 6.3 | Liabilities for Breach |
A breach of this Contract shall be constituted if any party hereto violates the requirements
of this Contract by failing to fully perform this Contract, or making any false information,
or withholding or omitting significant facts in any undertaking, representation and warranty
made by her/it in this Contract, or refusing to perform any of her/its undertakings,
representations and warranties. The defaulting party shall bear the corresponding
liabilities for the breach according to laws.
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CHAPTER 7 TAXES AND FEES
Party A shall bear any and all transfer and registration tax and fees incurred by or levied on the
parties in accordance with the laws of the PRC in connection with the preparation and execution of
this Contract and the Transfer Contracts, as well as the consummation of the transactions
contemplated under this Contract and the Transfer Contracts.
CHAPTER 8 CONFIDENTIALITY OBLIGATION
The parties hereto acknowledge and confirm that any oral or written information exchanged between
them in connection with this Contract shall be confidential information. The parties shall keep
all such information confidential and shall not disclose any of the information to any third
parties without the written consent of the other parties, except for the following:
| a. | the information that are or will be known to the public (provided that they are
not disclosed to the public without authorization by the information receiving party); |
| b. | the information required to be disclosed by applicable laws, or the rules or
regulations of securities exchanges; or |
| c. | the information required to be disclosed by a party to its legal or financial
advisors with respect to the transaction mentioned herein, for which such legal or
financial advisors shall also comply with the confidentiality obligation as similar as
that described in this Article. Any divulgence of confidential information by the
employees of either party or any organization engaged by it shall be deemed as the
divulgence of confidential information by such party, and such party shall be liable
for the breach pursuant to this Contract. This article shall survive regardless of
whether this Contract is invalid, discharged, terminated or cannot be operated due to
any reason. |
CHAPTER 9 FURTHER ASSURANCE
The parties agree to promptly execute such documents and take such further action as are reasonably
required for or are conducive to the implementation of the provisions and purpose of this Contract.
CHAPTER 10 MISCELLANEOUS
| 10.1 | Modification, Amendment and Supplement |
All amendments and supplements to this Contract shall be made by the parties in writing.
Any amendment contracts and supplemental contracts hereto duly signed by the parties shall
be an integral part of this Contract, and shall have the same legal effect as this Contract.
| 10.2 | Integrity of this Contract |
The parties confirm that, once this Contract becomes effective, it shall constitute the
entire agreement and understanding between the parties hereto with respect to the contents
of this Contract, and shall completely supersede all previous oral or/and written agreement
and understanding between the parties hereto in connection with the contents of this
Contract.
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| 10.3 | Severability of this Contract |
If any provision or provisions of this Contract is/are held to be invalid, illegal or
unenforceable in any respect in accordance with any laws or regulations, the validity,
legality or enforceability of the remaining provisions of this Contract shall not be
affected or impaired in any respect. The parties shall, through amicable negotiations,
strive to replace those invalid, illegal or unenforceable provision or provisions with valid
provision or provisions, and the economic effect of such valid provision or provisions shall
be as close as possible to the economic effect of those invalid, illegal or unenforceable
provision or provisions.
| 10.4 | Headings |
The headings of this Contract are for convenience only, and shall not be used to interpret,
explain or otherwise affect the meanings of the provisions of this Contract.
| 10.5 | Language and Counterpart |
This Contract is executed in Chinese in six originals and each of them shall have the same
legal effect. Each party shall keep one original and the remaining three originals shall be
provided to the relevant government departments.
| 10.6 | Successors |
This Contract shall be binding on and shall inure to the interest of the respective
successors or heirs of the parties and the permitted assignees of such parties.
| 10.7 | Survival |
Any obligations that occur or are due as a result of this Contract prior to the expiration
or early termination of this Contract shall survive the expiration or early termination
hereof. The provisions of Chapters 6 and 8 and this Article 10.7 hereof shall survive the
termination of this Contract.
| 10.8 | Waivers |
Any party may waive the terms and conditions of this Contract, provided that such a waiver
must be provided in writing and shall require the signatures of the parties. No waiver by
any party in certain circumstances with respect to a breach by other parties shall operate
as a waiver by such a party with respect to any similar breach by other parties in other
circumstances.
IN WITNESS WHEREOF, the parties hereto have executed this Contract on the day first above written.
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Party A: Agria Brother Biotech (Shenzhen) Co., Ltd.
Legal Representative/Authorized Representative: /s/
Common Chop: [Chop of Agria Brother Biotech (Shenzhen) Co., Ltd. is affixed]
Party B: Xx Xxxx
Signature: /s/ Xx Xxxx
Party C: Shenzhen Guanli Agricultural Technology Co., Ltd.
Legal Representative/Authorized Representative: /s/
Common Chop: [Chop of Shenzhen Guanli Agricultural Technology Co., Ltd. is affixed]
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