SCHEDULE
14C
(Rule
14c-101)
Information
Statement Pursuant to Section 14(c) of
the
Securities Exchange Act of 1934
Check the
appropriate box:
o
Preliminary Information Statement
o
Confidential,
for Use of the Commission Only (as permitted by Rule 14c-5(d)(2))
x
Definitive Information Statement
CHINA
AGRITECH, INC.
(Name of
Registrant As Specified In Its Charter)
Payment
of Filing Fee (Check the appropriate box):
x
No fee
required
o
Fee computed on
table below per Exchange Act Rules 14c-5(g) and 0-11
(1) Title
of each class of securities to which transaction applies:
(2) Aggregate
number of securities to which transaction applies:
(3) Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee is
calculated and state how it was determined):
(4) Proposed
maximum aggregate value of transaction:
(5) Total
fee paid:
o
Fee paid previously
with preliminary materials.
o
Check box if any
part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and
identify the filing for which the offsetting fee was paid previously. Identify
the previous filing by registration statement number, or the Form or Schedule
and the date of its filing.
(1) Amount
Previously Paid:
(2) Form,
Schedule or Registration Statement No.:
(3) Filing
Party:
(4) Date
Filed:
NOTICE
OF ACTION TAKEN PURSUANT TO
WRITTEN
CONSENT OF STOCKHOLDERS
WE
ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED
NOT
TO SEND US A PROXY.
To the
Stockholders of China Agritech, Inc.:
This
Notice and the accompanying Information Statement are being furnished to the
stockholders of China Agritech, Inc., a Delaware corporation (the “Company”), in
connection with action taken by the holders of a majority of the issued and
outstanding voting securities of the Company, approving, by written consent
dated December 17, 2009, the amendment of the Company's Amended and Restated
Certificate of Incorporation (the “Amendment”) to effect a forward split of the
Company’s Common stock on the basis of two shares for every one outstanding
share (the “Stock Split”), so that every one outstanding share of Common Stock
before the Stock Split shall represent two shares of Common Stock after the
Stock Split. The actions to be taken pursuant to the written consent
shall be taken at such future date as determined by the Board of Directors, as
evidenced by the filing of the Amendment with the Secretary of State of the
State of Delaware, but in no event earlier than the 20
th
day
after this Information Statement is mailed or furnished to the stockholders of
record as of December 22, 2009.
WE
ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A
PROXY.
Your vote
or consent is not requested or required to approve these matters. The
accompanying Information Statement is provided solely for your
information.
By
order of our Board of Directors,
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/s/
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Yu
Chang
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President,
Chief Executive Officer and
Chairman
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Dated:
January 8, 2010
INFORMATION
STATEMENT
OF
CHINA
AGRITECH, INC.
Room
3F No. 11 Building, Zhonghong International Business Garden
Future
Business Center,
Chaoyang
North Road, Chaoyang District, Beijing, China 100024
THIS
INFORMATION STATEMENT IS BEING PROVIDED
TO
YOU BY THE BOARD OF DIRECTORS OF
CHINA
AGRITECH, INC.
WE
ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED
NOT
TO SEND US A PROXY
This
Information Statement is being mailed or furnished to the stockholders of China
Agritech, Inc., a Delaware corporation (the “Company”), in connection with the
authorization of the corporate action described below by the Company’s Board of
Directors by unanimous written consent on December 17, 2009, and the approval of
such corporate action by the written consent, dated December 17, 2009, of those
stockholders of the Company entitled to vote a majority of the aggregate shares
of the Company’s common stock, par value $0.001 per share (the “Common Stock”)
outstanding on such date. Stockholders holding in the aggregate
5,024,115 shares of Common Stock or 59.52% of the Common Stock outstanding on
such date, approved the corporate action described below. Accordingly, all
necessary corporate approvals in connection with the matters referred to herein
have been obtained and this Information Statement is furnished solely for the
purpose of informing the stockholders of the Company, in the manner required
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of
this corporate action before it takes effect.
This
Information Statement is first being mailed or furnished to the stockholders of
the Company on or about January 15, 2010, and the transaction described herein
shall become effective at such future date as determined by the Board of
Directors, as evidenced by the filing of the Amendment with the Secretary of
State of the State of Delaware, but in no event earlier than the 20th day after
this Information Statement is mailed or furnished to the stockholders
of record as of December 22, 2009.
ACTION
BY BOARD OF DIRECTORS
AND
CONSENTING
STOCKHOLDERS
By
unanimous written consent of the Board of Directors of the Company on December
17, 2009 the Board of Directors adopted resolutions approving a forward split of
the Company’s Common Stock on the basis of two shares for every one outstanding
share (the “Stock Split”), so that every one outstanding share of Common Stock
before the Stock Split shall represent two shares of Common Stock after the
Stock Split and proposing that such resolution be submitted for a vote of the
stockholders of the Corporation (the “Board Consent”). The Board Consent is
attached hereto as
Appendix
A
. The action taken by the Board of Directors with respect to the Stock
Split and amending the Company’s Amended and Restated Certificate of
Incorporation to effect the Stock Split (the “Amendment”) was subsequently
adopted by the written consent of the Company’s stockholders entitled to vote a
majority of the shares of Common Stock then outstanding on December 17, 2009
(the “Stockholder Consent”). The Stockholder Consent is attached hereto as
Appendix B
.
The
reasons for, and general effect of, the Stock Split is described in “APPROVAL OF
A RESOLUTION TO EFFECT A FORWARD STOCK SPLIT OF THE COMPANY’S COMMON STOCK AND
AMENDMENT TO THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO EFFECT THE
FORWARD STOCK SPLIT.”
The Board
of Directors of the Company knows of no other matters other than that described
in this Information Statement which have been recently approved or considered by
the holders of the Common Stock.
GENERAL
This
Information Statement is first being mailed or furnished to stockholders on or
about January 15, 2010. The Company will pay all costs associated with the
distribution of this Information Statement, including the costs of printing and
mailing. The Company will reimburse brokerage firms and other custodians,
nominees and fiduciaries for reasonable expenses incurred by them in sending
this Information Statement to the beneficial owners of the Common Stock. This
Information Statement is being furnished by the Corporation and is available
through the “Investor Relations” tab on the Corporation’s website at:
www.chinaagritechinc.com.
VOTE
OBTAINED — DELAWARE LAW
Pursuant
to Section 228 of the Delaware General Corporation Law (the “DGCL”), unless
otherwise provided in the certificate of incorporation, any corporate action
required to be taken at a meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by members having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all members having a right to vote
thereon were present and voted. In order to eliminate the costs and management
time involved in holding a special meeting, our Board of Directors voted to
utilize and obtained the written consent of the holders of a majority in
interest of our Common Stock. As of December 17, 2009, there were 8,440,837
shares of Common Stock of the Company issued and outstanding. Each holder of
Common Stock is entitled to one vote for each share held by such
holder.
Stockholders
holding in the aggregate 5,024,115 shares of Common Stock or 59.52% of the
Common Stock outstanding on such date, approved the Stock Split and the filing
of the Amendment.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS
AND MANAGEMENT
The
following table sets forth information regarding beneficial ownership of our
Common Stock as of December 17, 2009 (i) by each person who is known by us to
beneficially own more than 5% of our Common Stock; (ii) by each of our
officers and directors; and (iii) by all of our officers and directors as a
group. Unless otherwise stated, the address of all persons in the
table is c/o China Agritech, Inc., Room 3F, No 11 Building, Zhonghong
International Business Garden, Future Business Center, Chaoyang North Road,
Chaoyang District, Beijing China 100024.
As of
December 17, 2009, an aggregate of 8,440,837 shares of our Common Stock, par
value $.001 per share, were outstanding.
Name & Address of Beneficial Owner and Office, if any
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Amount & Nature of
Beneficial Ownership
(1)
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Yu
Chang,
Chief
Executive Officer, President, Secretary and Chairman
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3,343,584
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(2)
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39.61
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China
Tailong Group Limited
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2,161,210
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(3)
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25.60
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Carlyle
Asia Growth Partners IV, L.P.
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1,278,937
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(4)
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15.15
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Sammi
Holdings Limited
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872,500
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(5)
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10.34
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Xiao
Rong Teng, Director
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287,763
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(6)
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3.41
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Yau-Sing
Tang, Chief Financial Officer and Controller
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0
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*
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Lun
Zhang Dai, Director
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0
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*
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Ming
Fang Zhu
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0
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*
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Hai
Lin Zhang, Director
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0
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*
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Gene
Michael Bennett, Director
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0
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*
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All
officers and directors as a group (6 persons)
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3,631,347
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43.02
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* Less
than 1%.
1.
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Pursuant
to Rule 13d-3 under the Exchange Act, a person has beneficial ownership of
any securities as to which such person, directly or indirectly, through
any contract, arrangement, undertaking, relationship or otherwise has or
shares voting power and/or investment power or as to which such person has
the right to acquire such voting and/or or investment power within 60
days. Unless otherwise stated, each beneficial owner has sole
power to vote and dispose of the
shares.
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2.
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Includes
2,161,210 shares of our common stock held by China Tailong Group Limited
and 741,625 of the 872,500 shares held by Sammi Holdings
Limited. Mr. Chang holds 100% of the registered shares of China
Tailong Group Limited and 85% of the registered shares of Sammi Holdings
Limited. In addition, Mr. Chang has sole voting and dispositive
power over 440,749 shares of our common stock. Mr. Chang is the sole
director of Sammi Holdings.
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3.
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Yu
Chang holds 100% of the registered shares of China Tailong Group
Limited.
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4.
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Based
on a Schedule 13D filed by Carlyle Asia Growth Partners IV, L.P. on
October 29, 2009, CAGP IV General Partner, L.P. is the general partner of
Carlyle Asia Growth Partners IV, L.P. and CAGP IV Co-Investment, L.P., the
record holder of 113,831 shares of common stock of China Agritech, and may
be deemed to have voting control and investment discretion over the
securities held by Carlyle Asia Growth Partners IV, L.P. and CAGP IV
Co-Investment, L.P. CAGP IV General Partner, L.P. disclaims
beneficial ownership of such securities. The sole general
partner of CAGP IV General Partner, L.P. is CAGP IV Ltd., a limited
company that is wholly owned by TC Group Cayman Investment Holdings, L.P.
The sole general partner of TC Group Cayman Investment Holdings, L.P. is
TCG Holdings Cayman II, L.P. DBD Cayman, Ltd. is the sole general partner
of TCG Holdings Cayman II, L.P. Carlyle Offshore Partners II, Limited is
the Class B member of DBD Cayman, Ltd. Each of CAGP IV Ltd., TC Group
Cayman Investment Holdings, L.P., TCG Holdings Cayman II, L.P., DBD
Cayman, Ltd., and Carlyle Offshore Partners II, Limited may, by virtue of
being the owner or general partner, as the case may be, of CAGP IV General
Partner, L.P., CAGP IV Ltd., TC Group Cayman Investment Holdings, L.P.,
TCG Holdings Cayman II, L.P., and DBD Cayman, Ltd., respectively, be
deemed to have voting control and investment discretion over the
securities held by Carlyle Asia Growth Partners IV, L.P. and CAGP IV
Co-Investment, L.P. CAGP IV Ltd., TC Group Cayman Investment Holdings,
L.P., TCG Holdings Cayman II, L.P., DBD Cayman, Ltd., and Carlyle Offshore
Partners II, Limited each disclaims beneficial ownership of such
securities. The principal business address of each of these
persons is c/o The Carlyle Group, 1001 Pennsylvania Ave., N.W., Suite 220
South, Washington D.C., 20004-2505. William E. Conway, Jr.,
Daniel A. D’Aniello, David Rubenstein, David Pearson, and Curt Buser are
the directors of CAGP IV Ltd. and, in such capacity, may be deemed to
share beneficial ownership of the shares of common stock of the Company
beneficially owned by CAGP IV Ltd. Such individuals, in their capacities
as directors, expressly disclaim any such beneficial ownership. Does not
include warrants to purchase 928,514 shares of common stock held
collectively by Carlyle Asia Growth Partners IV, L.P. and CAGP IV
Co-Investment, L.P that are not exercisable within 60
days.
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5.
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Yu
Chang and Xiao Rong Teng hold 85% and 15% of the registered shares of
Sammi Holdings Limited,
respectively.
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6.
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Includes
130,875 of the 872,500 shares held by Sammi Holdings
Limited. Ms. Teng holds 15% of the registered shares of Sammi
Holdings Limited.
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NOTICE
TO STOCKHOLDERS OF ACTION
APPROVED
BY CONSENTING STOCKHOLDERS
The
following action has been approved by the written consent of the holders
together entitled to vote a majority of the issued and outstanding shares of
Common Stock:
APPROVAL
OF A RESOLUTION TO EFFECT A FORWARD STOCK SPLIT OF THE COMPANY’S COMMON STOCK
AND AMENDMENT TO THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO EFFECT
THE FORWARD STOCK SPLIT
Purpose
of the Stock Split
The
Company’s Board of Directors has determined that it is in our best interest to
effect a forward split of our Common Stock of two shares for one share
outstanding (the “Stock Split”), so that every one outstanding share of Common
Stock before the Stock Split shall represent two shares of Common Stock after
the Stock Split with all fractional shares rounded up to the next whole share.
The Board of Directors believes that
the Company’s stockholders would
benefit from greater liquidity in the Company’s Common Stock, that the Common
Stock is too expensive for many investors and that a forward stock split of the
Common Stock will allow the Common Stock to trade in a less expensive price
range.
Consequently, the Board of Directors has recommended that we
effect the Stock Split.
Principal
Effects of the Stock Split
On the
effective date of the Stock Split, each one share of our Common Stock issued and
outstanding immediately prior to the Stock Split effective date (the “Old
Shares”) will automatically and without any action on the part of the
stockholders be converted into two shares of our Common Stock (the “New
Shares”). In the following discussion, we provide examples of the
effects of a two-for-one forward stock split.
Corporate
Matters.
The Stock Split would have the following effects on
the number of shares of Common Stock outstanding:
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in
a two-for-one forward stock split, every one of our Old Shares owned by a
stockholder would be exchanged for two New Shares;
and
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the
number of shares of our Common Stock issued and outstanding will be
increased from 8,440,837 shares to 16,881,674
shares.
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The Stock
Split will be effected simultaneously for all of our outstanding Common Stock
and the exchange ratio will be the same for all of our outstanding Common Stock.
The Stock Split will affect all of our stockholders uniformly and will not
affect any stockholder’s percentage ownership interest in the Company, except to
the extent that the Stock Split results in any of our stockholders owning a
fractional share. As described below, stockholders and holders of options and
warrants holding fractional shares will have their shares rounded up to the
nearest whole number. Common Stock issued pursuant to the Stock Split will
remain fully paid and non-assessable. We will continue to be subject to the
periodic reporting requirements of the Securities Exchange Act of 1934, as
amended.
Effect on Market Price of our Common
Stock.
The market price of the Common Stock may fall
proportionally to the increase in the number of shares outstanding as a result
of the Stock Split. However, stockholders should note that the effect of the
Stock Split upon the market price for our Common Stock cannot be accurately
predicted. Furthermore, there can be no assurance that the market price of our
Common Stock immediately after the Stock Split will be maintained for any period
of time. Moreover, because some investors may view the Stock Split negatively,
there can be no assurance that the Stock Split will not adversely impact the
market price of our common stock or, alternatively, that the market price
following the Stock Split will either exceed or remain in excess of the current
market price.
Fractional Shares.
No scrip
or fractional share certificates will be issued in connection with the Stock
Split. Stockholders who otherwise would be entitled to receive fractional shares
because they hold a number of Old Shares not evenly divisible by the two for one
stock split ratio, will be entitled, upon surrender of certificate(s)
representing these shares, to a number of shares of New Shares rounded up to the
nearest whole number. The ownership of a fractional interest will not give the
stockholder any voting, dividend or other rights except to have his or her
fractional interest rounded up to the nearest whole number when the New Shares
are issued.
Options and Warrants
. Holders
of options and warrants to purchase shares of Common Stock, who upon exercise of
their options or warrants would otherwise be entitled to receive fractional
shares, because they hold options which upon exercise would result in a number
of shares of Common Stock not evenly divisible by the Stock Split ratio, will
receive a number of shares of Common Stock rounded up to the nearest whole
number.
Authorized Shares
. The
Company is presently authorized under its Amended and Restated Certificate of
Incorporation to issue 100,000,000 shares of Common Stock. Upon
effectiveness of the Stock Split, the number of authorized shares of Common
Stock would remain the same, although the number of shares of Common Stock
issued and outstanding will increase. The issuance in the future of
additional shares of the our Common Stock may have the effect of diluting the
earnings per share and book value per share, as well as the stock ownership and
voting rights of the currently outstanding shares of our Common
Stock. Authorized but unissued shares will be available for issuance,
and we may issue such shares in future financings or otherwise. If we issue
additional shares, the ownership interest of holders of our Common Stock would
be diluted.
Accounting Matters
. The Stock
Split will not affect the par value of our Common Stock. As a result, on the
effective date of the Stock Split, the stated capital on our balance sheet
attributable to our Common Stock will be increased in proportion to the Stock
Split ratio (that is, in a two-for-one stock split, the stated capital
attributable to our Common Stock will be increased to twice the number of its
existing amount) and the additional paid-in capital account shall be credited
with the amount by which the stated capital is increased. The per share net
income or loss and net book value of our Common Stock will also be decreased
because there will be more shares of our Common Stock outstanding.
Procedure
for Effecting a Forward Stock Split and Exchange of Stock
Certificates
The Stock
Split will be accomplished by amending the Company’s Amended and Restated
Certificate of Incorporation to include the paragraph immediately below
substantially in the following form:
“The
Company is authorized to issue two classes of stock, designated “Common Stock”
and “Preferred Stock,” respectively. The total number of shares that
the Company is authorized to issue is 110,000,000 shares, $0.001 par
value. The number of shares of Common Stock that the Company is
authorized to issue is 100,000,000 shares, and the number of shares of Preferred
Stock that the Company is authorized to issue is 10,000,000
shares. The Board of Directors of the Company is hereby authorized to
provide for the issue of all or any of the remaining shares of the Preferred
Stock in one or more series, and to fix the number of shares and to determine or
alter, for each such series, such powers, designations, preferences and relative
participating, optional or other rights and such qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions adopted by the Board of Directors providing for the issue of such
series and as may be permitted by the General Corporation Law of the State of
Delaware. Effective upon filing of this Certificate of Amendment of
the Amended and Restated Certificate of Incorporation, each one (1) outstanding
share of Common Stock shall be forward split into two (2) shares of Common
Stock.”
A copy of
the Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of the Company is attached hereto as
Appendix
C
.
The Stock
Split will become effective at such future date as determined by the Board of
Directors, as evidenced by the filing of the Amendment with the Secretary of
State of the State of Delaware (which we refer to as the “Effective Time”), but
in no event earlier than the 20
th
calendar day following the mailing of this Information Statement. Beginning at
the Effective Time, each certificate representing Old Shares will be deemed for
all corporate purposes to evidence ownership of New Shares.
As soon
as practicable after the Effective Time, stockholders will be notified that the
Stock Split has been effected. The Company expects that its transfer agent,
Securities Transfer Corporation, will act as exchange agent for purposes of
implementing the exchange of stock certificates. Holders of Old Shares will be
asked to surrender to the exchange agent certificates representing Old Shares in
exchange for certificates representing New Shares in accordance with the
procedures to be set forth in the letter of transmittal the Company sends to its
stockholders. No new certificates will be issued to any stockholder until such
stockholder has surrendered such stockholder’s outstanding certificate(s),
together with the properly completed and executed letter of transmittal, to the
exchange agent. Any Old Shares submitted for transfer, whether pursuant to a
sale, other disposition or otherwise, will automatically be exchanged for New
Shares. Securities Transfer Corporation charges a fee of
approximately $25 for each certificate issued representing New Shares, which
cost shall be borne by the stockholder.
STOCKHOLDERS
SHOULD NOT DESTROY ANY STOCK CERTIFICATE(S) AND SHOULD NOT SUBMIT ANY
CERTIFICATE(S) UNTIL REQUESTED TO DO SO.
Material
U.S. Federal Income Tax Consequences of the Stock Split
The
following discussion is a general summary of the material U.S. federal income
tax consequences of the Stock Split to a current stockholder of the Company that
is a “United States person,” as defined in the Internal Revenue Code of 1986, as
amended (the “Code”) (sometimes referred to herein as a “U.S. stockholder”), and
who holds Common Stock of the Company as a “capital asset,” as defined in
Section 1221 of the Code. This discussion does not purport to be a complete
analysis of all of the potential tax effects of the Stock Split. Tax
considerations applicable to a particular stockholder will depend on that
stockholder’s individual circumstances. The discussion does not address the tax
consequences that may be relevant to particular categories of stockholders
subject to special treatment under certain U.S. federal income tax laws (such as
dealers in securities or currencies, banks, insurance companies, tax-exempt
organizations, financial institutions, broker-dealers, regulated investment
companies, real estate investment companies, real estate mortgage investment
conduits and foreign individuals and entities). The discussion also does not
address any tax consequences arising under U.S. federal non-income tax laws,
such as gift or estate tax laws, or the laws of any state, local or foreign
jurisdiction. In addition, the discussion does not consider the tax treatment of
partnerships or other pass-through entities or persons who hold our shares
through such entities.
The
following discussion is based upon the Code, U.S. Treasury Department
regulations promulgated thereunder, published rulings of the Internal Revenue
Service (the “IRS”) and judicial decisions now in effect, all of which are
subject to change or to varying interpretation at any time. Any such changes or
varying interpretations may also be applied retroactively. The following
discussion has no binding effect on the IRS or the courts.
No gain
or loss should be recognized by a U.S. stockholder upon such stockholder’s
deemed exchange of Old Shares for New Shares pursuant to the Stock Split. The
aggregate tax basis of the New Shares received in the Stock Split should be the
same as such stockholder’s aggregate tax basis in the Old Shares being
exchanged, and the holding period of the New Shares should include the holding
period of such stockholder in the Old Shares.
We can
give no assurance that the tax treatment described herein will remain unchanged.
No ruling has been requested from the IRS with respect to the anticipated tax
treatment of the Stock Split, and we will not seek either such a ruling or an
opinion of counsel with respect to the anticipated tax treatment. If any tax
consequences or facts prove not to be as anticipated and described herein, the
result could be increased taxation at the stockholder level.
Because
of the complexity of the tax laws and because the tax consequences to the
Company or to any particular stockholder may be affected by matters not
discussed herein, stockholders are urged to consult their own tax advisors as to
the specific tax consequences to them in connection with the Stock Split,
including tax reporting requirements, the applicability and effect of foreign,
U.S. federal, state, local and other applicable tax laws and the effect of any
proposed changes in the tax laws.
Vote
Required
The
affirmative vote of the holders of a majority of all issued and outstanding
shares of our Common Stock entitled to vote on these corporate actions has been
received in the form of a written consent in lieu of special
meeting.
Dissenters’
Rights of Appraisal
We are a
Delaware corporation and are governed by the DGCL. Holders of the
Company’s Common Stock do not have appraisal or dissenter’s rights under the
DGCL in connection with the Stock Split or the filing of the Amendment as
approved by the Board of Directors and the stockholders of the
Company.
Interest
of Certain Persons in Matters to be Acted Upon
No
director, executive officer, associate of any director or executive officer or
any other person has any substantial interest, direct or indirect, by security
holdings or otherwise, in the Stock Split that is not shared by all other
shareholders of ours.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION ABOUT THE COMPANY
The
Company is subject to the information requirements of the Exchange Act, and in
accordance therewith files reports, proxy statements and other information
including annual and quarterly reports on Form 10-K and Form 10-Q with the
Securities and Exchange Commission (“SEC”). Reports and other information filed
by the Company can be inspected and copied at the public reference facilities
maintained at the SEC at 100 F Street, N.E., Washington, DC 20549. Copies of
such material can be obtained upon written request addressed to the SEC, Public
Reference Section, 100 F Street, N.E., Washington, DC 20549, at prescribed
rates. You may obtain information on the operation of the SEC’s Public Reference
Room by calling the SEC at (800) SEC-0330. The SEC also maintains a
web site on the Internet (http://www.sec.gov) where reports, proxy and
information statements and other information regarding issuers that file
electronically with the SEC may be obtained free of charge.
By Order
of the Board of Directors
January
8, 2010
APPENDIX
A
UNANIMOUS
WRITTEN CONSENT
OF
THE
BOARD
OF DIRECTORS
OF
CHINA
AGRITECH INC.
The
undersigned, being all of the members of the Board of Directors (the “
Board
”) of China
Agritech Inc., a Delaware corporation (the “
Corporation
”), do
hereby adopt the following resolutions by written consent in lieu of a meeting
of the Board of the Corporation, pursuant to Section 141(f) of the Delaware
General Corporation Law:
WHEREAS
, the Board of
Directors of the Corporation believes that Corporation’s stockholders would
benefit from greater liquidity in the Common Stock, that the common stock is too
expensive for many investors and that a forward stock split of the Common Stock
will allow the Common Stock to trade in a less expensive price range;
and
WHEREAS
, the Corporation
desires, at a time to be determined by the Board of Directors, to effect a
2-for-1 forward stock split, whereby every one (1) share of the authorized,
issued and outstanding Common Stock of the Corporation shall be split into two
(2) shares of authorized, issued and outstanding Common Stock of the Corporation
(the “
Stock
Split
”).
WHEREAS
, the Stock Split will
not change the percentage of shares of Common Stock held by stockholders of the
Corporation;
WHEREAS
, the Corporation must
file a Certificate of Amendment to its Amended and Restated Certificate of
Incorporation (the “
Amendment
”) to effect
the Reverse Stock Split;
NOW,
THEREFORE, BE IT
RESOLVED
,
that the Board of
Directors hereby authorizes and approves the Stock Split and the
Amendment, substantially in the form attached hereto as
Exhibit A
; and be it
further
RESOLVED,
that upon
consultation with management of the Corporation, the Board of Directors will
determine the date of the
Stock Split; and be it
further
RESOLVED,
that the Board of
Directors hereby authorizes the Corporation to seek by written consent the
approval by the holders of a majority of the Corporation’s outstanding common
stock (the “
Stockholders
”) of the
Stock Split and the Amendment; and be it further
RESOLVED
, that the filing of
the Amendment is contingent upon approval by the Stockholders; and be it
further
RESOLVED,
that at any time
prior to the effectiveness of the filing of the Amendment with the Secretary of
state of Delaware, notwithstanding authorization of the Amendment by the
stockholders of the Corporation, the Board of Directors may abandon the
Amendment without further action by the Corporation’s stockholders; and be it
further
RESOLVED
, that the
Corporation, upon approval of the Stockholders, shall prepare and file with the
SEC an Information Statement on Schedule 14C with respect to the approval of the
Stock Split and the Amendment by written consent in lieu of a stockholder
meeting; and be it further
RESOLVED,
that the close of
business on December 22, 2009, be, and it hereby is, fixed as the record date
for the determination of stockholders of record of the Corporation entitled to
receive a copy of the Information Statement; and be it further
RESOLVED
, that the officers of
the Corporation be, and each of them hereby is, authorized, empowered and
directed, with each such officer having the full authority to act without the
participation or consent of any other officer, to do and perform any and all
such other acts and things, and to take or omit to take any and all such further
action, and to execute and deliver any and all such further agreements,
instruments, certificates and other documents (including waiver agreements), in
the name and on behalf of the Corporation and under its corporate seal or
otherwise, as each of the officers may, in his or her discretion, deem necessary
or appropriate in order to perform or otherwise satisfy, in whole or in part,
any and all of the purposes and intents of these resolutions.
This
unanimous written consent of the Board of Directors of the Corporation may be
executed in counterparts, each of which when taken together shall constitute one
and the same instrument.
IN
WITNESS WHEREOF, the undersigned, being all of the members of the Board of
Directors of the Corporation, have hereunto set their hands as of the 17th day
of December 2009.
/s/
Yu Chang
|
|
/s/
Xiao Rong Teng
|
Yu
Chang
|
|
Xiao
Rong Teng
|
|
|
|
/s/
Gene Michael Bennett
|
|
/s/
Lun Zhang Dai
|
Gene
Michael Bennett
|
|
Lun
Zhang Dai
|
|
|
|
/s/
Hai Lin Zhang
|
|
|
Hai
Lin Zhang
|
|
|
APPENDIX
B
WRITTEN
CONSENT
OF
THE
HOLDERS
OF A MAJORITY OF THE OUTSTANDING SHARES
OF
COMMON STOCK OF
CHINA
AGRITECH INC.
The
undersigned, being holders of a majority of the issued and outstanding shares
(the “
Holders
”)
of common stock, par value $.001 per share (the “
Common Stock
”) of
China Agritech, Inc., a Delaware Corporation (the “
Corporation
”),
pursuant to Section 228 of the General Corporation Law of the State of Delaware,
consents to the adoption of the following resolutions taking or authorizing the
actions specified therein:
WHEREAS
, the Board of
Directors of the Corporation believes that Corporation’s stockholders would
benefit from greater liquidity in the Common Stock, that the common stock is too
expensive for many investors and that a forward stock split of the Common Stock
will allow the Common Stock to trade in a less expensive price range;
and
WHEREAS
, the Board of
Directors of the Corporation, at a time to be determined by the Board of
Directors, desires to effect a 2-for-1 forward stock split of the Common Stock,
whereby every one (1) share of the authorized, issued and outstanding Common
Stock of the Corporation shall be split into two (2) shares of authorized,
issued and outstanding Common Stock of the Corporation (the “
Stock
Split
”).
WHEREAS
, the Stock Split will
not change the percentage of shares of Common Stock held by stockholders of the
Corporation;
WHEREAS
, the Corporation must
file a Certificate of Amendment to its Amended and Restated Certificate of
Incorporation (the “
Amendment
”) to effect
the Stock Split;
WHEREAS,
the Board of
Directors have authorized the Corporation to seek the written consent of the
Holders to approve the Stock Split and the Amendment.
NOW,
THEREFORE, BE IT
RESOLVED
,
that the Holders hereby
approve the Stock Split; and be it further
RESOLVED,
that the Holders
hereby approve the Amendment, substantially in the form attached hereto as
Exhibit A
, to effect
the Stock Split, at such time as the Board of Directors determines in its
discretion and without any further action by the Holders; and be it
further
RESOLVED
, that at any time
prior to the effectiveness of the filing of the Amendment with the Secretary of
State of Delaware, notwithstanding authorization of the Amendment by the
stockholders of the Corporation, the Board may abandon the Amendment without
further action by the stockholders; and be it further
RESOLVED
, that the officers of
the Corporation be, and each of them hereby is, authorized, empowered and
directed, with each such officer having the full authority to act without the
participation or consent of any other officer, to do and perform any and all
such other acts and things, and to take or omit to take any and all such further
action, and to execute and deliver any and all such further agreements,
instruments, certificates and other documents (including waiver agreements), in
the name and on behalf of the Corporation and under its corporate seal or
otherwise, as each of the officers may, in his or her discretion, deem necessary
or appropriate in order to perform or otherwise satisfy, in whole or in part,
any and all of the purposes and intents of these resolutions.
This
written consent of the Holders of the Corporation may be executed in
counterparts, each of which when taken together shall constitute one and the
same instrument.
IN
WITNESS WHEREOF, the undersigned, holders of a majority of the Corporation’s
outstanding shares of common stock, have hereunto set their hands as of the 17th
day of December 2009.
Yu
Chang
|
|
Xiao
Rong Teng
|
|
|
|
|
|
By:
|
/s/
Yu Chang
|
|
By:
|
/s/
Xiao Rong Teng
|
|
|
|
|
|
Its:
|
|
|
Its:
|
|
|
|
|
|
|
No.
of Shares: 440,749
|
|
No.
of Shares: 156,888
|
|
|
|
|
|
Sammi
Holdings Limited
|
|
China
Tailing Group Limited
|
|
|
|
|
|
By:
|
/s/
Yu Chang
|
|
By:
|
/s/
Yu Chang
|
|
|
|
|
|
Its:
|
|
|
Its:
|
|
|
|
|
|
|
No.
of Shares: 872,500
|
|
No.
of Shares: 2,161,210
|
|
|
|
|
|
Carlyle
Asia Growth Partners IV, L.P.
|
|
CAGP
IV Co-Investment, L.P.
|
|
|
|
|
|
By:
|
/s/
Curtis Buser
|
|
By:
|
/s/
Curtis Buser
|
|
|
|
|
|
Its:
|
Director
|
|
Its:
|
Director
|
|
|
|
|
|
No.
of Shares: 1,278,937
|
|
No.
of Shares: 113,831
|
APPENDIX
C
CERTIFICATE
OF AMENDMENT
OF
THE AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
CHINA
AGRITECH, INC.
China
Agritech, Inc., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware (the “
Company
”), does
hereby certify:
Article
I. The
Board of Directors of the Company (the “
Board
”), acting by
Unanimous Written Consent in accordance with Section 141(f) of the General
Corporation Law of the State of Delaware, adopted a resolution authorizing the
Company to effect a 2 (two) for 1 (one) forward stock split of the Common Stock,
par value $0.001, whereby every one (1) issued and outstanding share of the
Company’s Common Stock (including each share of treasury stock), shall
automatically and without any action on the part of the holder thereof be split
into two (2) fully paid and nonassessable shares of Common Stock of the Company
(the “
Common
Stock
”) and to file this Certificate of Amendment:
Article
FOURTH of the Certificate of Incorporation of the Company is hereby deleted in
its entirety and amended and restated as follows:
“The Company is authorized to issue two
classes of stock, designated “Common Stock” and “Preferred Stock,”
respectively. The total number of shares that the Company is
authorized to issue is 110,000,000 shares, $0.001 par value. The
number of shares of Common Stock that the Company is authorized to issue is
100,000,000 shares, and the number of shares of Preferred Stock that the Company
is authorized to issue is 10,000,000 shares. The Board of Directors
of the Company is hereby authorized to provide for the issue of all or any of
the remaining shares of the Preferred Stock in one or more series, and to fix
the number of shares and to determine or alter, for each such series, such
powers, designations, preferences and relative participating, optional or other
rights and such qualifications, limitations or restrictions thereof, as shall be
stated and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issue of such series and as may be permitted by the
General Corporation Law of the State of Delaware. Effective upon
filing of this Certificate of Amendment of the Amended and Restated Certificate
of Incorporation, each one (1) outstanding share of Common Stock shall be
forward split into two (2) shares of Common Stock.”
Article
II. That
in lieu of a meeting and vote of stockholders, the holders of a majority in
interest of record of the issued and outstanding shares of Common Stock have
given Written Consent to said amendment in accordance with the provisions of
Section 228 of the General Corporation Law of the State of
Delaware.
Article
III. That
the aforesaid amendment was duly adopted in accordance with the applicable
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
[
Signature page
follows
]
IN WITNESS WHEREOF,
said China
Agritech, Inc, has caused this certificate to be signed by Yu Chang, its Chief
Executive Officer, President, Secretary & Chairman of the Board, this ____
day of _______ 2009.
CHINA
AGRITECH, INC.
|
|
|
|
|
By:
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
Yu
Chang
|
|
|
Title:
|
President,
CEO, Secretary &
|
|
|
|
Chairman
of the Board
|
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