Attached files
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| EX-2.1 - AgFeed Industries, Inc. | v196930_ex2-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
The
Securities Exchange Act of 1934
September 13,
2010
Date of
Report (Date of earliest event reported)
AgFeed
Industries, Inc.
(Exact
name of registrant as specified in its charter)
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Nevada
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001-33674
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20-2597168
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(IRS
Employer
Ident.
No.)
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Suite A1001-1002,
Tower 16, Hengmao Int’l Center
Nanchang
City, Jiangxi Province, China
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330003
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(Address
of principal executive offices)
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(Zip
Code)
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86-791-6669093
Registrant’s
telephone number, including area code
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N/A
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(Former
name or former address, if changed since last
report.)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4 (c))
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Item 1.01
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Entry
into a Material Definitive
Agreement.
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On
September 13, 2010, AgFeed Industries, Inc., a Nevada corporation
(the “Company”), entered
into a Membership Purchase Agreement (the “Purchase Agreement”)
with AF Sellco, LLC, a Delaware limited liability company (“Seller”).
Pursuant to the Purchase Agreement, the Company agreed to acquire
(the “Transaction”) all of
the outstanding equity interests of M2 P2, LLC, a Delaware limited
liability company (“M2P2”). The
purchase price for the Transaction is approximately $25.6 million, subject
to a post-closing adjustment in accordance with the Purchase Agreement, of which
approximately $2.6 million will be deposited in an escrow account pursuant
to the Purchase Agreement, which is to be applied towards to the purchase price
of the Transaction.
The
closing of the Transaction occurred on September 13, 2010. At the
closing of the Transaction, the Company delivered to Seller (i) an amount
in cash equal to approximately $11.3 million,
(ii) 1,194,641 shares of the Company’s common stock, par value
$0.001 per share (“Common Stock”), and
(iii) a promissory note in the amount of approximately $8.9 million
(the “Seller
Note”). Concurrently, the Company deposited in an escrow account
pursuant to an Escrow Agreement, dated as of September 13, 2010
(the “Escrow
Agreement”), by and among the Company, Seller and JPMorgan Chase Bank,
National Association, as escrow agent (i) an amount in cash equal to
approximately $315,000, (ii) 137,737 shares of Common Stock, and
(iii) a promissory note in the amount of approximately $986,000 (together
with the Seller Note, the “Notes”). In
connection with the closing of the Transaction, the Company entered into a
Pledge Agreement, dated as of September 13, 2010 (the “Pledge Agreement”),
with Seller pursuant to which the Company agreed, under and subject to the terms
and conditions of the Pledge Agreement, to pledge to Seller, and to grant to
Seller, a perfected first-priority lien on and security interest in, all of the
outstanding equity interests of M2P2 as collateral security for the Company’s
obligations under the Notes.
The
shares of Common Stock issued to Seller pursuant to the Purchase Agreement are
subject to a lock-up period ending on the 18 month anniversary of the
closing of the Transaction. However, during this lock-up period, one-third
of the such Common Stock shall be released from the lock-up restriction on each
6 month anniversary of the closing of the Transaction.
The Notes
will bear interest at a rate of 8.0% per year, in each case payable
quarterly in cash on March 31, June 30, September 30 and
December 31 of each year, beginning on December 31, 2010. The
Company will make interest only payments until June 30, 2012 and thereafter
it will make amortizing principal and interest payments with the last payment
due on September 30, 2020.
There are
no material relationships among the Company and Seller or any of their
respective affiliates, other than with respect to (i) the Purchase
Agreement, the Pledge Agreement, the Escrow Agreement, the Notes, and the
related ancillary agreements, (ii) the 19.9% interest of Seller in AgFeed
International Protein Technology Corp. (“AFIPT”), a joint
venture focused on enhancing hog production systems for Chinese and other Pan
Asian clients based on modern western standards, and (iii) the service of
Mr. Stadler on the Board of Directors of the Company beginning on
September 15, 2010. The Company owns a 65% interest in AFIPT and
certain of its affiliates own the remaining 15.1% interest.
The
foregoing descriptions of the Transaction, the Purchase Agreement, the Pledge
Agreement, the Escrow Agreement, and the Notes do not purport to be complete and
are qualified in their entirety by reference to the Purchase Agreement and
exhibits thereto, which is attached hereto as Exhibit 2.1, and is
incorporated herein by reference.
The
Purchase Agreement has been included as an exhibit to this Current Report on
Form 8-K to provide you with information regarding its terms. It is
not intended to provide any other factual information about the Company.
The Purchase Agreement contains representations and warranties that the parties
thereto made to each other as of specific dates. The assertions embodied
in the representations and warranties in the Purchase Agreement were made solely
for purposes of the Purchase Agreement and the transactions and agreements
contemplated thereby among the parties thereto and may be subject to important
qualifications and limitations agreed to by the parties thereto in connection
with negotiating the terms thereof. Moreover, some of those
representations and warranties may not be accurate or complete as of any
specified date, may be subject to a contractual standard of materially different
from those generally applicable to stockholders or may have been used for the
purposes of allocating risk among the parties to the Purchase Agreement rather
than establishing matters as fact.
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Item 2.01
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Completion
of Acquisition or Disposition of
Assets.
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The
information provided under Item 1.01 above is hereby incorporated by
reference to this Item 2.01.
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Item 3.02
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Unregistered
Sales of Equity Securities.
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The
information provided under Item 1.01 above is hereby incorporated by
reference to this Item 3.02. The Company issued the shares of Common
Stock pursuant to the Purchase Agreement in reliance upon the exemption from
registration contained in Section 4(2) of the Securities Act of 1933, as
amended (the “Securities
Act”). The Company relied on this exemption from registration based
in part on the representations made by Seller in the Purchase
Agreement.
The
shares of Common Stock issued have not been registered under the Securities Act,
and may not be offered or sold in the United States absent registration or an
applicable exemption from registration requirements. This Current Report
on Form 8-K does not constitute an offer to sell, or a solicitation of an
offer to buy, any security and shall not constitute an offer, solicitation or
sale in any jurisdiction in which such offering would be unlawful.
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Item 5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
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Based
upon the recommendation of the Nominating and Corporate Governance Committee and
pursuant to the terms of the Purchase Agreement, on September 15, 2010,
following the Annual Meeting of Stockholders, the Board of Directors of the
Company appointed John A. Stadler as a member of the Board of Directors of
the Company with a term expiring at the 2011 annual meeting of
stockholders.
Mr. Stadler
will serve as a member on each of the Audit Committee, the Compensation
Committee, and the Nominating and Corporate Governance Committee.
Mr. Stadler has an equity interest in Seller. Accordingly, other than
the transactions discussed in Item 1.01 above, he does not have an interest
requiring disclosure under Item 404(a) of Regulation S-K.
Mr. Stadler will receive an annual cash retainer of $70,000, paid in equal
quarterly installments, and will otherwise be compensated for services as a
director on the same basis as other non-employee directors of the Company,
including eligibility to receive stock-based awards as may be approved from time
to time by the Board of Directors of the Company.
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Item
5.07
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Submission
of Matters to a Vote of Security
Holders.
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On
September 15, 2010, the Company held its Annual Meeting of Stockholders for
which the Board of Directors solicited proxies. At the Annual Meeting, the
stockholders of the Company voted on the following proposals stated in the Proxy
Statement dated August 2, 2010.
The
proposals voted on and approved or disapproved by the stockholders of the
Company at the Annual Meeting were as follows:
Proposal
No. 1. The stockholders elected four individuals to the Board
of Directors as set forth below:
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Name
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Votes
For
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Votes
Withheld
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Broker
Non-Votes
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Songyan
Li, Ph.D.
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10,952,364
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1,089,921 | 19,398,317 | |||||||||
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K. Ivan F.
Gothner
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11,493,266 | 549,410 | 19,397,926 | |||||||||
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Junhong
Xiong
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10,974,036 | 1,068,640 | 19,397,926 | |||||||||
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Lixiang
Zhang, Ph.D.
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10,851,596 | 1,191,080 | 19,397,926 | |||||||||
Proposal
No. 2. The stockholders approved the AgFeed
Industries, Inc. 2010 Long-Term Incentive Plan as set forth
below:
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Votes
For
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Votes
Against
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Abstentions
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Broker
Non-Votes
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|||||||||
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10,296,423
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1,640,690 | 105,361 | 19,397,928 | |||||||||
Proposal
No. 3. The stockholders ratified the appointment of Goldman
Kurland Mohidin LLP as the Company’s independent registered public
accounting firm for the fiscal year ending December 31, 2010 as set forth
below:
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Votes
For
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Votes
Against
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Abstentions
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Broker
Non-Votes
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30,464,763
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651,853 | 323,986 | - | |||||||||
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Item 9.01
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Financial
Statements and Exhibits.
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(a)
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Financial
statements of businesses acquired:
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To be filed by amendment.
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(b)
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Pro
forma financial information:
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To be filed by
amendment
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(c)
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Shell
company transactions:
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None.
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(d)
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Exhibits:
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2.1
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Membership
Purchase Agreement, dated as of September 13, 2010, by and between AF
Sellco, LLC and AgFeed
Industries, Inc.
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10.1
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Form
of Note, dated September 13, 2010, of AgFeed Industries, Inc.
(incorporated by reference to Exhibit A to Exhibit 2.1 filed
herewith).
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10.2
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Form
of Pledge Agreement, dated as of September 13, 2010, by and between
AF Sellco, LLC and AgFeed Industries, Inc. (incorporated by
reference to Exhibit B to Exhibit 2.1 filed
herewith).
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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AGFEED
INDUSTRIES, INC.
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Dated: September 17,
2010
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By:
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/s/ Gerard
Daignault
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Gerard
Daignault
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Chief
Operating Officer
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EXHIBIT
INDEX
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Exhibit
Number
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Description
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2.1
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Membership
Purchase Agreement, dated as of September 13, 2010, by and between AF
Sellco, LLC and AgFeed Industries, Inc.
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10.1
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Form
of Note, dated September 13, 2010, of AgFeed Industries, Inc.
(incorporated by reference to Exhibit A to Exhibit 2.1 filed
herewith)
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10.2
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Form
of Pledge Agreement, dated September 13, 2010, by and between AF
Sellco, LLC and AgFeed Industries, Inc. (incorporated by
reference to Exhibit B to Exhibit 2.1 filed
herewith)
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