EXHIBIT 4.16
EXECUTION COPY
June 22, 2007
UNDERTAKING LETTER
To:
Brothers Capital Limited
TPG Growth AC Ltd.
TPG Biotech II, Ltd.
This letter agreement is being delivered by the undersigned in
connection with your investment in Agria Corporation (the "Company").
We hereby agree to the following:
1. Each signatory will use reasonable best efforts to, and the Company will
use its reasonable best efforts to cause each shareholder of the Company
(including TPG Growth AC Ltd., TPG Biotech II, Ltd. and Dubai Investment Group)
to, enter into a new agreement regarding share transfers, the memorandum and
articles of association of the Company (the "M&A") and a new registration rights
agreement, in each case, that supplements prior similar agreements or the
relevant provisions of each such agreements to which such shareholder is a
party, as soon as possible but no later than the public filing date of the
Company's Registration Statement on Form F-1 with the United States Securities
and Exchange Commission (or the public filing date of the Company's offering
circulars in other jurisdictions). The parties intend that the agreement
regarding share transfers and the M&A will grant each shareholder of the Company
substantially similar co-sale rights, rights of first refusal and pre-emptive
rights and will impose on each shareholder of the Company substantially similar
restrictions on transfer of its shares as well as (to the extent applicable to
such shareholder) clarify the relationship between the M&A and the investment
agreements of certain of the shareholders. The parties intend that the
registration rights agreement will grant each shareholder of the Company
equivalent piggyback and demand registration rights (to the extent such
shareholder currently enjoys demand registration rights). The rights of TPG
Growth AC Ltd. and TPG Biotech II, Ltd as holders of the preferred shares of the
Company will not be changed. Each party's put right (or redemption right) and
rights with respect to the Company's corporate governance will not be changed.
2. This letter agreement and, to the fullest extent permitted by applicable
law, all matters arising out of or relating to this letter agreement, shall be
governed by and construed in accordance with the law of the State of New York,
United States of America.
3. Any dispute, controversy or claim (each, a "Dispute") arising out of or
relating to this letter agreement, or the interpretation, breach, termination or
validity hereof, shall be resolved at the first instance through consultation
between the parties to such Dispute. Such consultation shall begin immediately
after any party has delivered written notice to any other
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party to the Dispute requesting such consultation. If the Dispute is not
resolved within 60 days following the date on which such notice is given, the
Dispute shall be submitted to arbitration upon the request of any party to the
Dispute with notice to each other party to the Dispute (the "Arbitration
Notice"). The arbitration shall be conducted in Hong Kong under the auspices of
the Hong Kong International Arbitration Centre (the "Centre"). There shall be
three arbitrators. The claimants in the Dispute shall collectively choose one
arbitrator, and the respondents shall collectively choose one arbitrator. The
Secretary General of the Centre shall select the third arbitrator, who shall be
qualified to practice law in the State of New York. If any of the members of the
arbitral tribunal have not been appointed within 30 days after the Arbitration
Notice is given, the relevant appointment shall be made by the Secretary General
of the Centre. The arbitration proceedings shall be conducted in English. The
arbitration tribunal shall apply the Arbitration Rules of the United Nations
Commission on International Trade Law, as in effect at the time of the
arbitration, which rules shall be deemed to have been incorporated by reference
into this section. However, if such rules are in conflict with the provisions of
this section, including the provisions concerning the appointment of arbitrator,
the provisions of this section shall prevail. Each party to the arbitration
shall cooperate with each other party to the arbitration in making full
disclosure of and providing complete access to all information and documents
requested by such other party in connection with such arbitration proceedings,
subject only to any confidentiality obligations binding on such party. The award
of the arbitration tribunal shall be final and binding upon the parties, and the
prevailing party may apply to a court of competent jurisdiction for enforcement
of such award. Any party to the Dispute shall be entitled to seek preliminary
injunctive relief, if possible, from any court of competent jurisdiction pending
the constitution of the arbitral tribunal. During the course of the arbitration
tribunal's adjudication of the dispute, this letter agreement shall continue to
be performed except with respect to the part in dispute and under adjudication.
The cost of arbitration (including legal, accounting and other professional fees
and expenses reasonably incurred by any prevailing party with respect to the
investigation, collection, prosecution and/or defense of any claim in the
Dispute) shall be borne by the losing party or parties unless otherwise
determined by the arbitration award.
Please indicate your acceptance of the provisions hereof by signing
the enclosed copy of this letter agreement and returning to the Company.
[Signature page to follow]
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Very truly yours,
Agria Corporation
By: /s/
------------------------------------
Name:
Title:
Date
ACKNOWLEDGED AND AGREED TO:
Brothers Capital Limited
By: /s/
---------------------------------
Name:
Title:
TPG Growth AC Ltd.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President and Secretary
TPG Biotech II, Ltd.
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Vice President and Secretary
Signature Page to the Undertaking Letter
