Attached files
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| EX-99.1 - CHINA AGRITECH INC | v170259_ex99-1.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
Date of
Report (Date of Earliest Event Reported): December 23,
2009
CHINA
AGRITECH, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
000-34458
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75-2955368
|
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|
(State
of Incorporation)
|
(Commission
File No.)
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(IRS
Employer ID No.)
|
Room
3F No. 11 Building, Zhonghong International Business Garden
Future
Business Center,
Chaoyang
North Road, Chaoyang District, Beijing, China 100024
(Address
of Principal Executive Offices)
Registrant’s
Telephone Number, Including Area Code: (86) 10-59621278
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 (see General Instruction A.2. below):
¨
Written communications pursuant to Rule 425 under the Securities Act (17
CFR.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item 3.01 Notice Of
Delisting Or Failure To Satisfy A Continued Listing Rule Or Standard; Transfer
Of Listing.
On
December 23, 2009, the Board of Directors (the “Board”) of China Agritech, Inc.
(the “Company”), upon the recommendation of the Nominating Committee of the
Board, expanded the membership of the Board from five to seven and appointed
Zheng “Anne” Wang to serve as a member of the Board, filling one vacancy as a
result of the newly created directorships.
On
December 30, 2009, the Company notified The Nasdaq Stock Market LLC (“Nasdaq”)
that, as a result of the appointment of Ms. Wang, the Company no longer complied
with Nasdaq Marketplace Rule 5605 (the “Rule”), which requires that a majority
of the Board of Directors consist of independent directors.
The
Company’s Board of Directors has begun the process to cure its non-compliance
with the Rule by identifying and evaluating potential candidates to serve as an
independent director, as defined under the Rule.
Item 5.02. Departure Of Directors
Or Principal Officers; Election Of Directors; Appointment Of Principal
Officers.
The
information included in Item 3.01 of this Current Report on Form 8-K is hereby
incorporated by reference into this Item 5.02.
Pursuant
to a post-closing covenant in the
Securities Purchase Agreement, dated October 19, 2009, (the “Purchase
Agreement”) by and among the Company, Carlyle Asia Growth Partners IV, L.P. and
CAGP IV Co-Investment, L.P. (collectively, the “Funds”) the Company agreed to
appoint a member to the Board designated by the Funds. Pursuant to
the Purchase Agreement the Funds invested $15,000,000 in the Company in
consideration for, among other things, 1,392,768 shares of common stock of the
Company and warrants to purchase up to 928,514 shares of common
stock. The Purchase Agreement is filed as an exhibit to the Company’s
Current Report on Form 8-K filed with the U.S. Securities and Exchange
Commission on October 20, 2009.
Ms. Wang, Vice President of Carlyle Asia
Growth Capital, is the Funds’ director designee, and as such, the Board does not
consider her to be an “independent director” in accordance with the Nasdaq
Marketplace Rules. Ms. Wang has no family relationships with
any of the executive officers or directors of the Company.
Ms. Wang,
33, has been Vice President of Carlyle Asia Growth Capital, a subsidiary of The
Carlyle Group, a private equity firm, since December 2007. From
August 2005 through December 2007, Ms. Wang was Senior Associate at Carlyle Asia
Growth Capital, and form December 2003 through August 2005, Ms. Wang was a
Senior Associate in the Shanghai office of A.T. Kearney Co., Ltd. She
graduated from Shanghai Fudan University with a bachelors degree in 1998 and
earned an MBA from the Kellog School of Management, Northwestern University, in
2003.
On
December 23, 2009, the Company entered into a director’s agreement with Ms.
Wang. Pursuant to the director agreement, Ms. Wang is not entitled to
receive any remuneration for her services as a member of the Board, although she
will be reimbursed in the same manner and to the same extent as other
non-executive or independent directors of the Company, for expenses incurred by
her in connection with her performance of her duties as a
director. Unless terminated by either party upon 10 days written
notice, the agreement expires on the earlier of one year or Ms. Wang’s removal
or resignation from the Board. Ms. Wang’s agreement prevents her from
directly competing with the business of the Company or any of its subsidiaries
or affiliates during the term of the agreement and for a period of 12 months
following its termination, anywhere in the People’s Republic of China, although
the agreement expressly allows The Carlyle Group or its affiliates, the Funds,
to hold any interest as owner, stockholder, partner, lender, director,
consultant or otherwise in any business competitive with the Company’s
business. Pursuant to the agreement, the Company agrees to indemnify
Ms. Wang to the fullest extent possible pursuant to Delaware law for all actions
taken by her while serving as a director. Ms. Wang, the Company and
the Funds will be entering into a separate indemnification agreement, a form of
which is included as Exhibit A to the director’s agreement.
2
Item
9.01 Financial Statements and Exhibits
(d)
Exhibits.
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Exhibit No.
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Description
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99.1
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Form
of Director’s Agreement with Zheng “Anne”
Wang
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3
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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CHINA
AGRITECH, INC.
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Date:
December 30, 2009
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/s/
Yu Chang
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Yu
Chang
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Chief
Executive
Officer
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4
Exhibit
Index
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Exhibit No.
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Description
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99.1
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Form
of Director’s Agreement with Zheng “Anne”
Wang
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5