Zhixin (Frank) Xue Resigned as COO of Agria; Xue Will Remain Chairman of Primalights III Agriculture Development, Co., Ltd.
2008-04-07 13:30:00
Zhixin (Frank) Xue Resigned as COO of Agria; Xue Will Remain Chairman of Primalights III Agriculture Development, Co., Ltd.
BEIJING, CHINA–( EMWNews – April 7, 2008) – Agria Corporation (
or “Agria”), an innovative China-based agri-solutions provider, today
announced the resignation of Zhixin (Frank) Xue from his positions at the
Company, effective April 1, 2008. Prior to his resignation, Mr. Xue had
served as the Company’s chief operating officer (“COO”) since June 2007 and
as a director since August 2007. Mr. Xue will remain as the chairman and
authorized legal representative of Primalights III Agriculture Development,
Co., Ltd. (“P3A”), Agria’s primary operating entity in China. Mr. Xue has
indicated his intention to continue working with Agria in further
developing P3A’s business.
On March 26, 2008, Mr. Xue informed the Company’s Board of Directors (the
“Board”) that he intended to resign from his positions at the Company.
Under the Company’s corporate governance guidelines, the Board may accept
or reject the resignation request of any director and/or officer. The
Board rejected Mr. Xue’s resignation request on March 31, 2008 and gave Mr.
Xue 24 hours to make a final decision. Mr. Xue did not respond to the
Board within 24 hours. Consequently, effective April 1, 2008, Mr. Xue
ceased to be the COO and a director of the Company.
Mr. Xue is also the chairman and authorized legal representative of P3A and
has been primarily responsible for the management of P3A’s operations since
its inception in 2000. Mr. Xue’s positions at P3A remain unchanged.
The Board will begin the process of considering candidates to fill the COO
position. There is no assurance that the Company will be able to find a
qualified COO easily or at all or that upon recruiting a new COO, such
person will be able to work with members of P3A management effectively and
successfully. In addition, if Mr. Xue and/or other management personnel of
P3A decide to resign from P3A in the future as a result of the conditions
set forth by the Special Committee (as described below) or otherwise, the
loss of their services in the absence of suitable replacements would have a
material adverse effect on the Company’s business, financial condition and
results of operations. In such an event, the Company would also incur
additional expenses to recruit and train new personnel.
Separately, the Company’s independent auditors have been unable to begin
their audit of the Company’s financial statements for 2007. Given the
substantial delay in the commencement of the audit process, there is a risk
that the Company may not be able to file its Annual Report on Form 20-F for
the fiscal year ended December 31, 2007 by June 30, 2008. The Company is
retracting its prior guidance for the fourth quarter of 2007 and first
quarter and full year of 2008 as provided in a press release on February
25, 2008.
I. P3A
P3A is a consolidated affiliate of the Company which conducts Agria’s corn
seed, sheep breeding and seedling businesses and holds the requisite
licenses and permits for these businesses in China. P3A has four record
shareholders, consisting of Ms. Juan Li who is the wife of Mr. Guanglin
(Alan) Lai, Agria’s chairman and co-CEO, and Mr. Zhaohua (Paul) Qian, a
director of Agria, who together hold 70% of the equity interests of P3A, as
well as Mr. Xue and Mr. Mingshe Zhang who has been involved in the
management of P3A, who together hold 30% of the equity interests of P3A.
Agria’s relationship with P3A and its shareholders is governed by the
contractual arrangements entered into between Agria’s wholly-owned
subsidiary in China and P3A and its shareholders. These contractual
arrangements enable Agria to effectively control P3A and receive
substantially all of P3A’s earnings and other economic benefits to the
extent permissible under PRC law. The Company believes that the
contractual arrangements entered into between Agria’s wholly-owned
subsidiary in China and P3A and its equity shareholders are substantially
similar to the contractual arrangements entered into by other China-based
companies listed on U.S. stock exchanges engaged in businesses subject to
restrictions on or prohibitions of foreign ownership in China. The Company
relies on all of P3A’s shareholders to abide by the contract laws of China
and honor their contracts with the Company. There is a risk that one or
more of the shareholders of P3A may breach the existing contractual
arrangements with the Company and not act in the best interests of the
Company. If the Company cannot resolve any conflicts of interest between
itself and any shareholder of P3A or if any shareholder breaches the
existing contracts with the Company, the Company would have to resort to
legal proceedings against such shareholder, which may result in disruption
to the Company’s business. There is also substantial uncertainty as to the
outcome of any such legal proceedings.
II. Background of Resignation
In late January 2008, the Board learned that Mr. Lai and Mr. Xue had been
discussing payment of $18 million in cash and transfer of shares (which
represent 22% of the Company) owned by Brothers Capital Limited (“BCL”) to
Mr. Xue and certain members of P3A management designated by Mr. Xue,
including Mingshe Zhang, Lv Yan and Zhonglin Han, to be commensurate with
their contribution to the Company and to provide equity incentive for their
continuing service. BCL is solely owned by Mr. Guanglin (Alan) Lai, who is
the husband of Ms. Juan Li. The payment of cash and transfer of shares by
BCL to Mr. Xue and members of P3A management team is referred to in this
disclosure as the “proposed transaction.” Mr. Lai informed the Board that
he would cause BCL to make the cash payment and transfer the shares,
provided that Mr. Xue and members of P3A management would satisfy the
conditions established by the Board for purposes of ensuring P3A
management’s continuing service and reinforcing the Company’s control over
P3A. Mr. Lai informed the Board that he believed the proposed payment by
BCL to Mr. Xue and members of P3A management team would provide incentive
for their continuing service and align their interests with those of the
shareholders of the Company. The Board was concerned about the potential
adverse impact of the proposed transaction on the Company’s business,
financial condition and results of operations, as well as whether a similar
situation may occur in the future. On February 4, 2008, the Board approved
a payment of $9 million by BCL to Mr. Xue and agreed to consider the
proposed transaction at a board meeting to be held in the near future. The
Board also agreed to consider the payment of the remaining $9 million by
BCL to Mr. Xue within 30 days after February 4, 2008 if certain conditions
were met.
At a subsequent meeting in February 2008, the Board formed a Special
Committee comprised of non-executive directors to evaluate the proposed
transaction and set forth conditions to be met by Mr. Xue and members of
P3A management team before the cash and shares from BCL would be released.
At the same meeting, BCL agreed to deposit the remaining cash and shares
into an escrow account administered by a third-party banking institution.
While the Special Committee was in the process of evaluating the proposed
transaction, on March 5, 2008, Mr. Xue informed the Board that he intended
to resign from his positions as the Company’s COO and director because he
did not receive any response from the Special Committee and did not believe
the Board or the Special Committee had the ability to resolve all important
matters of the Company. The English translation of Mr. Xue’s e-mail to the
Board is attached hereto as Exhibit A and is incorporated by reference
herein. In accordance with the Company’s corporate governance guidelines,
the Board may accept or reject Mr. Xue’s resignation request. Accordingly,
on March 7, 2008, the Board rejected Mr. Xue’s resignation request. Mr.
Xue agreed with the Board’s decision and withdrew his resignation request
on March 8, 2008. Meanwhile, Mr. Xue requested that the proposed
transaction between BCL and Mr. Xue and members of P3A management be
consummated in the near future.
III. Resignation
In March 2008, the Special Committee was actively discussing and finalizing
the terms of the escrow agreement with BCL and considering and discussing
the conditions to be met by Mr. Xue and members of P3A management team. On
March 25, 2008, Mr. Xue asked the Board and the Special Committee about the
status of the escrow account. On March 26, 2008, Mr. Xue missed the e-mail
update regarding the status of the escrow account from the Special
Committee and sent his resignation request via e-mail to the Board. In his
e-mail to the Board, Mr. Xue indicated that he was disappointed with the
fact that he had not received any written explanation from the Special
Committee regarding the proposed transaction, and that he had not seen any
concrete measures to ensure the consummation of the proposed transaction.
At the request of the Special Committee, BCL placed the additional $9
million in cash and a signed blank share transfer form to transfer a total
of 27,808,000 ordinary shares representing 22% of the total issued and
outstanding shares of the Company, into the escrow account on March 27,
2008. Under the escrow agreement entered into between BCL and the escrow
agent, an independent third party, the escrow account will automatically
terminate on the earlier of June 16, 2008, or at any time prior to June 16,
2008, upon written instructions from at least a majority of the Special
Committee members, and only the Special Committee members may authorize the
escrow agent to release the escrowed cash and share transfer form before
the escrow account terminates. A copy of the escrow agreement will be
filed as an exhibit to Form 6-K containing this announcement and be
incorporated by reference therein. The escrow agreement is expected to be
amended to extend the final termination date to June 20, 2008. On March
31, 2008, the Board informed Mr. Xue of its decision to reject Mr. Xue’s
resignation request in accordance with the Company’s corporate governance
guidelines and gave Mr. Xue 24 hours to make a final decision. Mr. Xue did
not respond to the Board within 24 hours and therefore, Mr. Xue ceased to
be the chief operating officer and a director of the Company on April 1,
2008. The English translation of Mr. Xue’s e-mail to the Board is attached
hereto as Exhibit B and is incorporated by reference herein. Mr. Xue was
provided a copy of this press release.
IV. Other Events
The Special Committee will continue to discuss conditions to be met by Mr.
Xue and other members of the P3A management team before the proposed
transaction can be consummated. Payment of cash and/or shares by BCL to
Mr. Xue and members of P3A management as compensation and incentive for
their past and continuing services in connection with the proposed
transaction will likely result in material compensation charges to the
Company in the period in which the payment is made. However, these
compensation charges are expected to be non-cash charges and non-dilutive
to shareholders since the payment would be made by BCL, a major shareholder
of the Company.
List of Exhibits
Exhibit A: Mr. Xue's E-mail to the Board on March 5, 2008 Exhibit B: Mr. Xue's E-mail to the Board on March 26, 2008
About Agria Corporation
Agria Corporation (
provider focusing on research and development, production and distribution
of three different types of upstream agricultural products. Its diversified
portfolio of products comprises corn seeds, sheep breeding and seedlings,
including proprietary products developed through its own research and
development capability. The company has access to approximately 27,000
acres of farmland in seven provinces and its extensive distribution network
provides direct or third party distribution in 14 provinces. For more
information about Agria Corporation, please visit www.agriacorp.com.
Safe Harbor Statement:
This announcement contains forward-looking statements. These statements are
made under the “safe harbor” provisions of the U.S. Private Securities
Litigation Reform Act of 1995. These forward-looking statements can be
identified by terminology such as “will,” “expects,” “anticipates,”
“future,” “intends,” “plans,” “believes,” “estimates,” “confident” and
similar statements. Agria may also make written or oral forward-looking
statements in its periodic reports to the U.S. Securities and Exchange
Commission on Forms 20-F and 6-K, etc., in its annual report to
shareholders, in press releases and other written materials and in oral
statements made by its officers, directors or employees to third parties.
Statements that are not historical facts, including statements about
Agria’s beliefs and expectations, are forward-looking statements.
Forward-looking statements involve inherent risks and uncertainties. A
number of important factors could cause actual results to differ materially
from those contained in any forward-looking statement. Potential risks and
uncertainties include, but are not limited to, those risks outlined in
Agria’s filings with the U.S. Securities and Exchange Commission, including
its Form F-1/A filed on November 2, 2007. All information provided in this
press release is as of April 7, 2008, and Agria does not undertake any
obligation to update any forward-looking statement, except as required
under applicable law.
Exhibit A
English Translation
Resignation Letter
Chairman, Directors and CEO,
Up to today (March 5, 2008), the Shanxi team have overcome many
difficulties and fully fulfilled its responsibilities in accordance with
the requirements of the Board of Directors. In the meantime, the Board of
Agria has neither substantively or effectively enforced its decision made
at the February 4, 2008 meeting involving the substantial interest of the
Company nor fulfilled its promise with the binding timeline. The result of
the above facts fully indicates that it has lost the trust of the Shanxi
team, and also inevitably makes people question the seriousness of its
decision and its ability to resolve all important internal and
external matters of the Company.
Based on the facts including but not limited to the above, I also
personally do not think that the current composition of the Board is
reasonable, could effectively strengthen the Company’s corporate governance
or has the ability to make independent judgment, which makes it unable to
fully protect the ultimate interests of the Company and all shareholders.
As a result, I have requested many times orally or in writing to
restructure the Board of Agria.
After thorough and careful consideration, I have no reason to persuade
myself to continue to serve as the director and senior management of the
Company. In light of this, I hereby resign my position as the director and
the COO of Agria, effective today, for which I only express my deep regret.
I hereby once again thank you everyone for your past cooperation and
support at work.
Best regards,
Zhixin Xue
March 5, 2008
Exhibit B
English Translation
Chairman, Directors and CEO,
The March 25 deadline for Agria’s Board of Directors and the Special
Committee to solve the problem regarding the share and cash transfer to P3A
team has passed. I didn’t receive any formal written explanation from the
Board or the Special Committee before such deadline as to why the promise
wasn’t fulfilled, nor did I receive any legally binding protection measures
relating to the share and cash transfer under these circumstances. I am
deeply disappointed with this. In the meantime, I have no doubt that
Agria’s Board needs to be restructured in order to strengthen the Company’s
corporate governance. I submitted my resignation request to the Board on
March 5, 2008, but subsequently temporarily withdrew the resignation out of
my respect for the Board and good wishes toward Agria. Now that the
established facts have convinced me that my previous resignation was a
right decision. After careful consideration, I hereby announce that I
resign my position as the director and the COO of Agria, effective
immediately.
Best regards,
Zhixin Xue
March 26, 2008
Contacts:
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