EXHIBIT 4.9
TRANSLATED FOR REFERENCE ONLY.
EXCLUSIVE CALL OPTION AGREEMENT
This "Exclusive Call Option Agreement" (hereinafter referred to as "this
Agreement") was signed by the following parties on June 8, 2007 in Beijing:
Party A: Aero-Biotech Science & Technology Co., Ltd.
Domicile: No. A333 Sixth Floor, Golden Resources Shopping Mall, No. 1
Yuanda Road, Haidian District, Beijing
Party B: Xx Xxxx, the ID card number : 420983197609010023;
Party C: Xxxx Xxxx Hua, the ID card number : 130224670510033;
Party D: Xue Zhi Xin, the ID card number: 140102621023081;
Party E: Xxxxx Xxxx She, the ID card number: 000000000000000;
(Parties B, C, D, E above individually or collectively referred to as "the
Shareholder(s)")
Party F: Primalights III Agricultural Development Co. Ltd. (hereinafter referred
to as "P3A")
Domicile: Middle Area of Highway 73, Zhuang Xx Xxxxx Village, Xxxxx
Xxxx Rural Area, Xxxx Xxxx District , Taiyuan City
WHEREAS:
1. Party A is a wholly foreign owned enterprise registered and established in
China in accordance with the laws of the People's Republic of China
(hereinafter referred to as "China". In this Agreement, it does not include the
Hong Kong Special Administration Region, Macao Special Administration Region and
Taiwan Region);
2. P3A is a limited liability company duly registered and established and
validly existing in Taiyuan City, Shanxi Province of China;
3. Parties B, C, D, and E are Chinese citizens, who hold 40%, 30%, 25% and 5%,
respectively, of equity interest in P3A;
4. The Shareholders intend to grant an exclusive purchase option to Party A so
that Party A may request the Shareholders to sell their equity interest to it
upon certain conditions are satisfied.
NOW, THEREFORE, the parties to this Agreement, through unanimous agreement,
hereby agree as follows:
CHAPTER 1: PURCHASE AND SALE OF EQUITY
1.1 Granting of Rights
The Shareholder hereby irrevocably grants to Party A an option to purchase
or causes any person or persons designated by Party A (hereinafter the
"Designee") to purchase from the Shareholders at any time, to the extent
permitted by the laws of China and according to the steps determined by
Party A at its own discretion, all or part of the equity interests in P3A
(hereinafter the "Call Option"), at the price specified in Article 1.3 of
this Agreement. Except for Party A and/or the Designee, the Shareholder
shall not sell, offer to sell, transfer, donate equity, pledge any equity
interest of P3A to any other third party. P3A hereby agrees the
Shareholders to grant Party A and/or the Designee the Call Option. The
"person" sets forth in this clause and this Agreement includes an
individual, corporation, joint venture, partnership, enterprise, trust or
non-corporation organization.
1.2 Exercise Steps
Subject to PRC laws and regulations, Party A and/or the Designee may
exercise Call Option by issuing a written notice (hereinafter referred to
as "Equity Purchase Notice") to the Shareholders and specifying the amount
of equity interest to be purchased (the "Purchased Equity") from the
Shareholder(s) and the manner of purchase.
1.3 Purchase Price
1.3.1 When Party A exercises the Call Option, unless the applicable Chinese laws
and regulations require an appraisal of the equity interest or have other
restriction on the equity price, Party A shall pay RMB100,000 to the
Shareholders of P3A as the purchase price ("Purchase Price") for all the
equity interest.
1.3.2 If the applicable PRC laws and regulations require appraisal of the equity
interests or have other restrictions on the purchase price of the equity
interests at the time Party A exercises the Call Option, the Parties agree
that the Purchase Price shall be the lowest price allowed by the applicable
laws.
1.3.3 If Party A chooses to purchase part of the equity interests, the purchase
price should be adjusted according to the ratio of the Purchased Equity to
the whole equity interests of P3A.
1.4 Transfer of the Purchased Equity
At each exercise of Call Option:
1.4.1 Shareholders shall cause P3A to hold the shareholders' meeting in a timely
manner. The meeting should pass a resolution to approve the transfer of
equity interest from Shareholders to Party A and/or the Designee, and cause
other shareholders to waive pre-emptive right on the Purchased Equity in
writing;
1.4.2 Shareholders and Party A and/or the Designee (as applicable) should enter
into an equity transfer contract each time the share is transferred in
accordance with
the stipulations of this Agreement and the Equity Purchase Notice related
to the Purchased Equity;
1.4.3 The related parties should sign all other requisite contracts, agreements
or documents, obtain all requisite government approvals and consents, and
take all necessary actions, without any security interests, grant the valid
ownership of the Purchased Equity to Party A and/or the Designee and cause
Party A and/or the Designee to be the registered owner of the Purchased
Equity. In this clause and in this Agreement, "security interests" includes
guarantees, mortgages, pledges, the third-party rights or interests, any
share option, right of acquisition, right of first refusal, right of
offset, ownership detainment or other security arrangements. But it does
not include the security interest arising from the Equity Pledge Agreement
signed on June 8, 2007 by Party A, Shareholders and P3A (hereinafter
"Equity Pledge Agreement").
1.5 Payment
The Purchase Price and the payment method shall be negotiated and decided
by Party A and/or the Designee and the Shareholders according to the
prevailing laws at the time the Call Option is exercised.
CHAPTER 2: UNDERTAKING RELATING TO EQUITY
2.1 Undertaking relating to P3A
The Shareholders and P3A hereby jointly undertake as follows:
2.1.1 Without the prior written consent of Party A, the articles of association
of P3A should not be added, revised or modified in any forms; or the
paid-in capital should not be increased or decreased; or the capital
structure should not be changed in any way;
2.1.2 P3A should keep good financial and commercial standards and practices to
maintain the existence of the company, operate its business and handle
affairs prudently and effectively, try its best to keep all necessary
permits, licenses and certificate valid and ensure that such permits,
licenses and forth will not be canceled, and do its best to maintain the
existing company structure, senior management staff, and relationship with
the customers so that after the delivery of shares, there will not be
material adverse effect on the goodwill and business of P3A;
2.1.3 Without the prior written consent of Party A, P3A should not sell,
transfer, pledge or by other means dispose any assets, business and revenue
of the company, or allow the settlement of any other security interests on
it at any time after this Agreement is signed;
2.1.4 Without the prior written consent of Party A, P3A will not inherit,
guarantee or permit the existence of any debt, except: (i) debts arising
from normal or ordinary course of business operation except for loans; and
(ii) debts that have been disclosed to and obtained written consent from
Party A;
2.1.5 P3A will keep all existing business under normal operation to maintain the
asset value of the company. Action or omission that will affect its
business operation and asset value is not allowed;
2.1.6 Without the prior written consent of Party A, P3A shall not enter into any
material contract, other than the agreements in the normal course of
business (for the purposes of this paragraph, if a contract value is more
than RMB 1 million, such contract will be deemed material);
2.1.7 Without the prior written consent of Party A, P3A should not provide any
loans or credit to anyone;
2.1.8 At the request of Party A, P3A should provide related operational and
financial information;
2.1.9 P3A should purchase and maintain the insurance from a insurance company
which is recognized by Party A. The amount and type of insurance should be
the same as those of the insurance normally procured by other companies in
the same region, engaged in similar business or possessing similar property
or assets;
2.1.10 Without the prior written consent of Party A, P3A shall not merge or
consolidate with anyone, or shall not acquire or invest in anyone;
2.1.11 P3A should inform Party A immediately any pending or threatened lawsuits,
arbitration or administrative proceedings relating to the assets, business
and revenue of P3A;
2.1.12 In order to maintain its ownership over all the assets, P3A should sign
all necessary or appropriate documents, take all necessary or appropriate
actions, bring forward all necessary or appropriate claims, or make all
necessary and appropriate defenses against all claims;
2.1.13 Without the prior written consent of Party A, P3A shall not distribute
dividends to its shareholders in any form. However, at the request of Party
A, all or part of the distributable profits shall be immediately
distributed to its Shareholders.
2.1.14 During the valid term of this Agreement, all business shall comply with
all applicable Chinese laws and regulations, administrative rules and
regulations, and shall not impose any material adverse impact on the
business or asset structure due to the violation of any above rules;
2.1.15 If Party A choose to exercise the Call Option according to the condition
of this Xxxxxxxxx, X0X shall procure its best effort to obtain all
necessary governmental approvals and other consent (if applicable) as soon
as possible to complete the transfer of the equity ownership;
2.1.16 At the request of Party A, appoint the person nominated by Party A as the
director of P3A.
2.2 Undertakings relating to Shareholders
Shareholders hereby undertake:
2.2.1 Without the prior written consent of Party A, Shareholders shall not sell,
transfer, pledge or by other means dispose of any legitimate or beneficial
interest of equity interest, or allow any other security interests to be
created on at any time after this Agreement is signed, with the exception
of the pledge under "Equity Pledge Agreement";
2.2.2 Without the prior written consent of Party A, Shareholders shall not cause
any shareholder resolutions at the shareholders' meeting to approve the
sale, transfer, pledge or otherwise dispose of any shares or benefit from
the legitimate rights or beneficial interests, or to allow the
establishment of any other security interest, but this is not applicable
when the subject is Party A or its designee;
2.2.3 Without the prior written consent of Party A, Shareholders shall not vote
to agree or support or sign any shareholder resolutions at the
shareholders' meeting to approve P3A to merge or consolidate with anyone,
or acquire or invest in anyone;
2.2.4 Notify Party A immediately of any litigation, arbitration or
administrative proceedings pending or threatening against its equity;
2.2.5 To cause the shareholders' meeting to vote and approve the transfer of the
Purchased Equity under this Agreement;
2.2.6 In order to maintain its ownership over the equity interest, Shareholders
shall sign all necessary or appropriate documents, take all necessary or
appropriate actions, bring forward all necessary or appropriate claims, or
make all necessary and appropriate defenses against all claims;
2.2.7 At the request of Party A, appoint the person nominated by Party A as the
director of P3A;
2.2.8 At request of Party A from time to time, Shareholders should transfer
their shares to Party A and/or the Designee unconditionally and
immediately, and waive the pre-emptive right toward other transferred
equity;
2.2.9 Shareholders shall strictly comply with the provisions of this Agreement
and other contracts which are jointly or individually signed by the
Xxxxxxxxxxxx, X0X and Party A, effectively perform the obligations under
these agreements, and do not do any act/omission that will affect the
validity and enforceability of these agreements.
CHAPTER 3: REPRESENTATION AND WARRANTIES
Shareholders and P3A hereby represent and warrant the followings to Party A on
the day this Agreement is signed and on each transferring day:
3.1 They have the rights to sign and deliver this Agreement and any equity
share-transferring contracts ("Transfer Agreement") according to this
Agreement, of which we are one party. And we have the right to perform the
obligations under this Agreement and any Transfer Agreement. Once this
Agreement and any Transfer Agreement, of which we are one party, are
signed, this Agreement will become legal, valid and binding obligations and
it can be enforceable in accordance with its terms.
3.2 Either the execution and delivery of this Agreement or any Transfer
Agreement or carrying out of the obligations under this Agreement or any
Transfer Agreement will not: (i) violate any relevant Chinese laws and
regulations; (ii) conflict with the articles of association or other
organizational documents; (iii) violate or default under any contract or
instrument to which it is a party or that binds upon it; (iv) violate any
approval or permit granted to it a and/or condition remaining in force; or
(v) cause any permit or approval granted to it to be suspended, cancelled
or attached with additional conditions;
3.3 P3A holds good and salable ownership over all assets. P3A has not set any
security interest on the said assets;
3.4 P3A has no outstanding debts except (i) debts arising from its normal
course of business; and (ii) debts that have been disclosed to and approved
by Party A in writing;
3.5 P3A shall comply with all Chinese Laws and regulations applicable to the
acquisition of assets;
3.6 There is no existing, pending or threatening litigation, arbitration or
administrative proceedings relating to equity and assets of P3A; and
3.7 Shareholders hold good and salable ownership over all its equity and
complete and valid disposition right (except for restriction under Chinese
laws and regulations) over the equity interest. Apart from the security
interest defined in Equity Pledge Agreement, no other security interest on
such equity has been created, and it is free from any third party claims.
CHAPTER 4: TRANSFER OF AGREEMENT
4.1 Shareholders and P3A shall not transfer their rights and obligations under
this Agreement to any third party unless prior written consent is obtained
from Party A.
4.2 Shareholders and P3A hereby agree that Party A is entitled to transfer all
its rights and obligations under this Agreement to a third party if it
considers it is necessary.
If such transfer happens, Party A only needs to notify Shareholders and P3A
in writing and do not need to seek consent of Shareholders and P3A.
CHAPTER 5: EFFECTIVE DATE AND TERM
5.1 This Agreement shall become effective on the date first above written.
5.2 This Agreement shall be terminated automatically only when Party A
exercises its purchase right over all equities of P3A according to the
provisions of this Agreement, unless it is early terminated in accordance
with the provisions of this Agreement or other related agreements signed by
the parties.
5.3 If the operation term of Party A or P3A expire or Party A or P3A terminates
due to other reasons during the period defined in Article 5.2 above, this
Agreement will be terminated accordingly, except that Party A has
transferred its rights and obligations according to Article 4.2.
CHAPTER 6: APPLICABLE LAW, DISPUTE RESOLUTION AND DEFAULT LIABILITIES
6.1 Applicable Law
The formation, validity, interpretation, performance of this Agreement and
dispute resolution under this Agreement shall be governed by Chinese laws.
6.2 Dispute Resolution
If dispute over the interpretation and performance of the provisions under
this Agreement arises, all parties shall resolve the dispute in good faith
through amicable negotiations. If the dispute cannot be resolved within
thirty (30) days after the request to solve the dispute is raised, any
party may submit the dispute to China International Economic and Trade
Arbitration Commission for arbitration according to the then effective
arbitration rules. The arbitration venue shall be in Beijing and the
applicable language shall be in Chinese. The arbitral award shall be final
and binding upon all parties.
6.3 Default Liabilities
If any party of this Agreement violates the provisions of this Agreement,
fails to fully perform this Agreement, or provides any false, significant
omission and misstatement on any undertakings and statement and guarantee,
refuses to perform the undertakings, statement and guarantee, these will
constitute a default. The Defaulting Party shall bear all legal
responsibility correspondingly.
CHAPTER 7: TAXES AND EXPENSES
Each party shall bear any and all transfer and registration taxes and expenses
occurring to or levied on it with respect to the preparation and execution of
this Agreement and each Transfer Agreement and its consummation of the
transaction contemplated hereunder and each Transfer Agreement in accordance
with Chinese laws.
CHAPTER 8: NOTICES
Notices or other communications required to be given by any party pursuant to
this Agreement shall be written in English or Chinese and delivered by hand
delivery or sent by mail or by facsimile transmission to the address of each
relevant party set forth below or to other specified address of each relevant
party notified by such party from time to time. The date when the notice is
deemed to be duly served shall be determined as follows: (a) a notice delivered
by hand is deemed duly received upon the date of delivery; (b) a notice sent by
mail is deemed duly received on the tenth (10th) day after the date when the air
registered mail with postage prepaid has been sent out (as indicated on the
postmark), or the fourth (4th) day after the delivery date to an internationally
recognized courier service; and (c) a notice sent by facsimile transmission is
deemed duly received upon the receiving time as indicated on the transmission
confirmation of relevant documents.
Party A: Aero-Biotech Science & Technology Co., Ltd.
Address: No. A333 Sixth Floor, Golden Resources Shopping Mall, Xx. 0 Xxxxxx
Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Fax: 000-00000000
Tel: 000-00000000
Party B: Xx Xxxx
Address: Xxxx 0 & 0, 00xx Xxxxx, Xxxx-xxxx Xxxxxxxx Xxxxxxxx, Xx.0 Xx Xxx 0xx
Xxxx, Xxxxxx Xxxxxxxx, Xxxxxxxx Xxxx
Fax: 0000-00000000
Tel: 0000-00000000
Party C: Xxxx Xxxxxxx
Address: Xxxx 000, Xxxx Xxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxx Cun, Haidian
District, Beijing
Fax: 000-00000000
Tel: 000-00000000
Party D: Xue Zhixin
Address: 25th Floor, Jin Gang Hotel, Xx.00 Xxxx Xxxx Xxxxx Xxxx, Xxxxxxx Xxxx,
Xxxxxx Xxxxxxxx
Fax: 0000-0000000
Tel: 0000-0000000
Party E: Xxxxx Xxxxxxx
Xxxxxxx: 00xx Xxxxx, Xxx Xxxx Xxxxx, Xx.00 Xxxx Xxxx North Road, Taiyuan City,
Shanxi Province
Fax: 0000-0000000
Tel: 0000-0000000
Party F: Primalights III Agricultural Development Co, Ltd.
Address: Middle Area of Highway 73, Zhuang Xx Xxxxx Village, Xxxxx Xxxx Rural
Area, Xxxx Xxxx District Taiyuan City
Fax: 0000-0000000
Tel: 0000-0000000
CHAPTER 9: CONFIDENTIALITY
The parties acknowledge and confirm that any oral and written materials
exchanged pursuant to this Agreement are confidential information. The parties
shall keep confidential all such information and shall not disclose any such
information to any third party without prior written consent from the other
parties except under the following circumstances: (a) the public knows or will
know such information (provided that it is not disclosed without permission by
any party who received the information); (b) applicable laws or related stock
exchange rules or regulations that require the disclosure of the information; or
(c) if any party need to consult the transaction with its legal or financial
consultant, the consultant shall also comply with the responsibility on
confidentiality similar to those as stated here. Disclosure of information from
either the staff or the consulting firm engaged by it shall be deemed as a
breach by such party and such party shall bear all defaulting liabilities under
this Agreement. This provision shall survive even if this Agreement becomes
invalid, cancel, terminate or unenforceable for any reason.
CHAPTER 10: FURTHER WARRANTIES
The parties agree to promptly execute all necessary and favorable documents for
the purpose of performing this Agreement, and take further necessary and
favorable actions for the purpose of performing this Agreement.
CHAPTER 11: MISCELLANEOUS
11.1 Amendment, Modification and Supplement
The parties may amend and supplement this Agreement by a written
instrument. Amendment and supplement will become an integral part of this
Agreement after proper execution by the parties and have same legal effect
as this Agreement.
11.2 Integrity of this Agreement
The parties hereby confirm that once this Agreement becomes effective, it
shall constitute the entire agreement and understanding on all contents of
this Agreement. And this Agreement supersedes all prior oral and/or written
agreements and understanding reached by the parties with respect to the
subject matter hereof.
11.3 Severability
If any provision or provisions of this Agreement is held invalid, illegal
or unenforceable in any respect by applicable laws or regulations, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected or impaired in any respect. The parties
shall, through amicable negotiations, replace those invalid, illegal or
unenforceable provision or provisions with valid provision or provisions
for the purpose of obtaining similar economic effect to those from the
invalid, illegal or unenforceable provisions.
11.4 Headings
The headings of this Agreement are to facilitate the reading of this
Agreement and shall not be used for interpreting, illustrating or
influencing in any other way the meaning of the provisions of this
Agreement.
11.5 Language and Counterparts
This Agreement is written in Chinese. There are nine original copies and
each copy shall have same legal effect. Each party shall hold one copy and
the remaining three copies shall be provided to relevant government
departments.
11.6 Successor
This Agreement shall bind on and inure to the benefit of each party's
successor or the permitted transferee of the parties.
11.7 Survival
Any accrued or outstanding obligations arising from this Agreement before
the expiration or early termination of this Agreement shall survive such
expiration or early termination of this Agreement. The provisions in
Chapter 6, Chapter 8, Chapter 9 and Article 11.7 shall survive after the
termination of this Agreement.
11.8 Waiver
Any party may waiver the terms and conditions of this Agreement by a
written instrument signed by the parties. No waiver by a party of the
breach by the other parties in a specific case shall operate as a waiver by
such party of any similar breach by the other parties in other cases.
IN WITNESS WHEREOF, the parties have signed this Agreement on the date first
above written.
[No text below.]
[No text on this page.]
Party A: Aero-Biotech Science & Technology Co., Ltd.
Legal representative / authorized representative: /s/ Xxxx Xxxxxxx
------------------------------
Common Seal: [Seal: Aero-Biotech Science & Technology Co., Ltd.]
Party B: Xx Xxxx
Signature /s/ Xx Xxxx
-------------------------------
Party C: Xxxx Xxxxxxx
Signature: /s/ Xxxx Xxxxxxx
-------------------------------
Party D: Xue Zhixin
Signature: /s/ Xue Zhixin
-------------------------------
Party E: Zhang Mingshe
Signature: /s/ Zhang Mingshe
-------------------------------
Party F: Primalights III Agricultural Development Co. Ltd.
Legal representative / authorized representative:
/s/ Zhang Mingshe
-------------------------------
Common Seal: [Seal: Primalights III Agricultural Development Co. Ltd.]
