EXHIBIT 10.17
The following consignment agreement form has been entered into by each of the
parties on the following table:
% of Shares
Consigned Stock Consigning Owner Consigned
--------------- ---------------- ---------
Beijing Origin ▇▇▇ ▇▇▇▇▇▇▇▇ 34.4%
Yang Yasheng 28.675%
▇▇▇▇ ▇▇▇▇▇ 25.8%
▇▇▇▇ ▇▇▇▇▇▇ 3.995%
▇▇▇▇▇ ▇▇▇▇▇▇▇ 3.13%
▇▇▇▇ ▇▇▇▇▇▇▇▇ 1.96%
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97.97%
Changchun Origin Beijing Origin 99.0%
▇▇▇ ▇▇▇▇▇▇▇▇ 1.0%
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100.0%
Henan Origin Beijing Origin 90.0%
Zhang Yingli 4.1%
Yang Yasheng 3.86%
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97.96%
CONSIGNMENT AGREEMENT
ON SHARES OF
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By and Between
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And
STATE HARVEST HOLDINGS LIMITED
December 25, 2004
This Share Consignment Agreement (Hereafter called the "Agreement") is entered
into December 25, 2004 at Beijing between the following parties:
(1) Ms. ___ (Hereafter called "Party A"), a Chinese citizen whose
Identification Card Number is ____ and domiciled at _________; and
(2) State Harvest Holding Limited (Hereafter called "Party B"), a British
Virgin Islands limited incorporation, located at Offshore Incorporation
Centre, Road Town, Tortola, British Virgin Island.
(Party A and Party B may be called "Party A and B" or "both parties" together,
or "the Party" or "each Party" under this agreement)
WHEREAS:
(1) ____ is a limited corporation registered in Beijing, China, which is
located at ______, whose major business area including the production and
distribution of crossbreed corn seed or other agricultural seed.
(2) As of the date of this agreement, Party A holds __% of the total share of
___; and
(3) Party A agrees that Party A shall consign all the management rights and
shareholder's rights in all the aforesaid shares of ____ to Party B in
accordance with the conditions set forth in this agreement. Party B agrees
that Party B shall take the responsibility to manage all the aforesaid
shares and exercise shareholder's rights of _____.
Therefore, Party A and Party B enter into this Agreement based on the following
terms:
1. DEFINITION
1.1 Except as provided under the terms of this Agreement, the following terms
shall mean:
"This agreement" refers to this agreement and appendix;
"Origin Inc" refers to _________;
"Consignment" refers to Party B accepts Party's consignment to represent
Party A manage shares and exercise shareholder's rights;
"Consigned share" refers to Origin Inc's ____% shares which are consigned
to Party B for management;
"Signing date" refers to the date of signing this agreement;
"Consignment period" refers the Article 3 of this Agreement which is the
period of Party B's share consignment;
"Business day" refers to any day except Saturday, Sunday and other days
authorized to the banks to close;
"China" refers People's Republic of China, as for this agreement, excluding
Hong Kong Special Administrative Region, Macau Special Administrative
Region, and Taiwan;
"China law" refers to the effective laws, regulations, policies or other
enforceable legal documents of People's Republic of China, and future
effective laws, regulations, policies or other enforceable legal
documents. Moreover, expect as otherwise provided, the term refers to the
amended and substituted laws. (Excluding Hong Kong Special Administrative
Region, Macau Special Administrative Region, and Taiwan).
1.2 This agreement will be binding on the executors, administrators, guardians
heirs and devisees and any and all successors in interest to the consigned
shares of Party A.
2. CONSIGNMENT
2.1 Party A shall consign Party B to manage consigned shares, exercise Origin
Inc shareholder's rights within the consignment period. Party B shall
accept Party A's consignment to represent Party A to manage consigned
shares, exercise Origin Inc shareholder's rights within the consignment
period.
2.2 Party B shall exercise shareholder rights on behalf of Party A, included
but not limited:
2.2.1 To motion to hold the shareholders' meeting and submit proposal;
2.2.2 To motion to replace or increase Origin Inc's directors,
supervisors, and recommend new director or supervisor candidates in
order to establish new board of directors and supervisory committee;
2.2.3 To appoint a representatives to participate the shareholders'
meeting and exercise the voting rights according to the proportion
of consigned share
2.2.4 To exercise the management rights, controlling rights and
decision-making power according to the proportion of Origin Inc's
consigned share; and
2.2.5 Exercise other shareholder rights on behalf of Party A.
2.3 Both parties agree that Party B shall propose to hold Origin Inc's
shareholder meeting regarding to the reelection of Origin Inc's Board of
Directors in 30 days following the execution of this Agreement. The
candidates of Party B shall be elected as the new Origin Inc's Directors.
2.4 Party A agrees not to interfere with Party B's exercise of Origin Inc's
shareholder rights. Nonetheless, Party A shall cooperate with Party B's on
the management and shall promptly provide and sign the necessary power of
appointment, agreements and contracts at Party B's request in favor of this
share consignment.
2.5 Party A enjoys the rights of knowing information in connection with the
share consignment as well as supervising, inquiry and suggesting Party B on
the share consignment.
2.6 During the consignment period, Origin Inc will responsible for its
corporate activities. Party B shall not be held liable to reimburse any
loss of Party A or Origin Inc that is not caused by Party B intentionally
or with material negligence during the period of exercise of shareholder's
rights by Party B representing Party A.
2.7 During the consignment period, Party B should be entitled in exercising and
enjoying any and all property rights in relation to the consigned shares,
which include but are not limited to the profits, interests, dividends,
bonus, and after liquidation, the residue assets.
2.8 Party A and any entity or individual under Party A's control shall, once
Party A receives full and adequate compensation for the share transferred
and for this agreement in all its respects, including that of the further
transfer of the consigned shares, take all such action as permitted by
Chinese law, time of the essence, for no payment of any kind by Party B, to
effect a transfer of the consigned shares to Party B immediately. For the
transfer and any costs associated with the transfer of additional consigned
shares, Party A is not entitled to any additional compensation or
reimbursement. This section is irrevocable by Party A. In the event of any
interpretation of this section by a legal body or body with similar
authority, whether as a result of a dispute among the parties or a third
party action, including any government action, this section will be
construed to give Party B as much of the full and actual ownership and full
beneficial and economic rights and benefits of the consigned shares as is
possible, so as to approximately full ownership under all applicable law.
3. CONSIGNMENT PERIOD
3.1 Both parties agree that the consignment period would be 3 years from the
signing of this Agreement. When the consignment period is due, if both
parties do not terminate this agreement with a written notice, the
consignment period of this agreement may be extended automatically until a
written termination agreement is signed by the parties.
4. LIMITATION PROVISION
4.1 Within consignment period, except Party A transfer the consigned share to
Party B or the third party designated by Party B, otherwise without Party
B's written consent, Party A shall not:
4.1.1 Transfer or dispose in any other manners consigned shares;
4.1.2 Mount guarantee in any form upon consigned shares;
4.1.3 Consign to any third party except Party B to manage the consigned
shares;
4.1.4 Alter consigned shares' proportion;
4.1.5 Dispose any benefit arising out of consigned shares;
4.1.6 Waive any rights attached to consigned shares;
4.1.7 Burden any debt or obligation upon the consigned shares;
4.1.8 Restructure in connection with the consigned shares.
4.2 Party A shall notify Party B within 3 days so that Party B could take
immediate action to avoid damages, if judicial official or other government
branch forcibly request to dispose the consigned shares, because of Party
A's bankruptcy or illegal action against state law and policies.
5. BOTH PARTIES' WARRANTIES, REPRESENTATION AND UNDERTAKING
5.1 Party A's warranties, representations and undertakings:
5.1.1 Party A is a natural person in China, who is qualified as legal unit
to be a consigned person, holding the consigned shares lawfully.
Party A has rights to sign this Agreement, to perform the terms and
provisions under this Agreement, and to complete this consignment.
5.1.2 Party A, who has the entirely independent privileges and disposal
rights upon the consigned shares and lawfully holds the consigned
shares. The consigned shares are not subjected to any mortgage,
debt, obligation, arbitration or litigation, and are not limited by
other prior rights or some other similar rights.
5.1.3 Party A has already provided genuine, complete and accurate
accounting material related to finance, assets and debt to Origin
Inc. The above mentioned material does not contain any undisclosed
facts that may cause material adverse effect to Origin Inc.
5.1.4 Party A guarantees that he will not sign any contracts or agreements
conflicting with this Agreement, and shall not assign the rights and
obligation to any third party under this Agreement.
5.1.5 Party A's any warranties, representations and undertakings,
including any documents provided to Party B, do not contain
inaccurate statements related to major events, or omit the major
events which could cause misunderstanding of the statements.
5.1.6 For the purpose of complete implementation of this Agreement, Party
A promises that he shall take all necessary actions, steps and make
all documents to execute all the terms in this Agreement.
5.2 Party B's warrants, representation and undertakings:
5.2.1 Party B is an independent legal person, who incorporated under the
laws of British Virgin Islands. Party B has already obtained the
necessary authorization to sign this Agreement, to perform the terms
and provisions under this Agreement, and to complete this
consignment.
5.2.2 Party B shall manage the consigned share in accordance with China
law, and shall manage the share for the purpose of maximumming
Origin Inc and shareholder's interests.
5.2.3 Party B guarantees that he shall not sign any contracts or
agreements conflicting with this Agreement, and shall not assign the
rights and obligation to any third party under this Agreement.
5.2.4 Party B's any warrants, representation and undertakings do not
contain inaccurate statement related to major events, or omit the
major events which could cause misunderstanding of the statements.
5.2.5 For the purpose of complete implementation of this Agreement, Party
B promise that he shall take all necessary actions, steps and make
all documents to execute all the terms in this Agreement
6. COST
6.1 Except as agreed by both parties in another agreement, all taxes and other
fees or expense incurred in connection with the negotiation, drafting and
execution of this agreement, shall be born by each party on his own
expenses.
7. CONFIDENTIAL
7.1 Any information, documents, data and all other materials (herein
"confidential information") arising out of the negotiation, signing, and
implement of this Agreement, shall be kept in strict confidence by both
parties. Unless compelled to disclose in judicial or administrative
process, or by other requirements of laws, any third party, except for
those enjoying the rights to know the confidential information, shall
neither be acknowledge or use the above confidential information, nor use
the confidential information for the purpose not related to complete this
Agreement.
7.2 The above confidential obligation of both parties is constant, which means
it will not terminate as of the date of this Agreement's termination.
8. FORCE MAJEURE
8.1 "Force Majeure" refers that any event, condition, situation or the
combination of event, condition and situation, which is outside the direct
or indirect reasonable controlling scope of influenced party, and is
limited by inevitable event, condition or situation that influenced party
could not reasonable anticipate, or avoid, prevent or inevitable postpone
either's perform under the terms of this Agreement. Neither party shall be
liable to the other for any delay or failure to perform its obligation
under this Agreement, if such failure or delay is due to force majeure.
However, one party shall notify the other party in writing as soon as
practical of any delay due to force majeure. After the force majeure
ceases, each party shall continue to perform under this Agreement.
9. DEFAULT
9.1 After effective date of this Agreement, it may constitute default, if
either party is in default, nonperforming, or partly performing terms of
this Agreement, or is in default of any warranties, representations and
undertakings of this Agreement. The non-breaching party can allow the
breaching party to remedy in a reasonable time period. If the breaching
party do not remedy within the reasonable time period, the non-breaching
party shall claim cancellation of the Agreement, and hold the breaching
party liable for all the damages resulted from the breaching party's
default. All the economic loss, including attorney fees, litigation and
arbitration costs incurred by the default, shall be paid by the breaching
party. The breaching party shall also be responsible to participate the
relevant litigation. The economic loss shall not exceed the amount that
breaching party could anticipate or should anticipate as of the date of
this Agreement.
10. EFFECTIVE DATE
10.1 This agreement is effective from the date of signing (If it is signed by
designated person, a letter of the power of attorney is necessary).
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1 The effectiveness, interpretation, implementation and dispute resolution
related to this Agreement, shall be governed by laws of People's Republic
of China.
11.2 Any dispute arising out of this Agreement, include but not limited to
execution, enforcement, implementation, interpretation, default,
modification, and termination, shall be resolved by both parties through
mutual negotiation. If both parties could not reach an agreement within 30
days since the dispute is brought forward, either party may initiate legal
action in the applicable jurisdiction. The recover party can ask the other
party to pay for all professional service (including but not limited to
legal counsel service) costs in the litigation and other related costs.
11.3 During the process of dispute resolution, both parties shall continue to
perform other terms under this Agreement, except for provision of dispute
resolution.
12. MODIFICATION, CANCELLATION, TERMINATION
12.1 The modification of this Agreement shall not be effective without written
agreement through negotiation. If both parties could not reach an
agreement, this Agreement remains effective.
12.2 Both parties may agree to cancel this Agreement with written agreement.
12.3 In one of following events, this Agreement shall be terminated:
12.3.1 Both parties terminate this Agreement with written agreement, during
consignment period;
12.3.2 Both parties cancel this Agreement with written agreement, during
consignment period;
12.3.3 The non-breaching shall cancel the agreement due to one party's
default.
12.3.4 Party A transfers consigned shares to Party B or any other party
designated by Party B.
13. GENERAL
13.1 Any statement, stipulation and promise made by one party to the other,
which are the foundation and precondition to the Agreement, shall be
complete and genuine. After the effective date, if either party discovers
the fact does not comply with the other party's representation and
warranties, the discovering party shall disclose immediately the above fact
to the other. All the losses, costs, expenses, or obligations shall be
compensated if it is resulted by either party's default of his
representation and warranties.
13.2 Any representation, warranties and undertakings shall be separate and
independent under this Agreement, which also shall not be limited by any
provisions, except provided otherwise.
13.3 If any provisions of this Agreement shall be construed to be illegal,
invalid, or unenforceable according the laws of China, they shall not
affect the legality, validity and enforceable of the other provisions of
this Agreement. If any provision is deemed to be illegal, invalid, or
unenforceable, both parties shall modify this agreement through
negotiation, and shall apply to both parties' original intend as close as
possible.
13.4 This agreement constitutes the entire agreement between the parties
relating to this consignment, which together with the appendix, represents
both parties' genuine expression. This agreement supersedes all prior or
contemporaneous discussions, or presentations and proposals, written or
oral, with respect to subject matters discussed herein.
13.5 Except as otherwise provided by the laws, either party's failure or
postpone to exercise rights under this Agreement do not constitute waive of
the rights. Exercise rights solely or partly do not prevent to exercise
other rights, or privileges.
13.6 All headings used in this Agreement are intended for convenience of
reference only. They will not affect the construction or interpretation of
the Agreement.
13.7 Except otherwise provided in this Agreement, the mentioned article, clause
and appendix refer to the article, clause and appendix of this Agreement.
13.8 Any notice required to be given or delivered to either party under the
terms of this Agreement shall be in writing and addressed to such party at
the address indicated at the first page of the Agreement or such other
address as such party may designate, in writing, from time to time. All
notices shall be deemed to have been given or delivered upon by personal
delivery, fax and registered mail. It shall be deemed to be delivered upon:
one registered mail (1) 5 business days after deposit in the mail; two,
personal delivery or fax; (2) business day after transmission. It the
notice is delivered by fax, it should be confirmed by original through
registered mail or personal delivery.
13.9 Both parties may sign additional agreement regarding to related matters of
this consignment. Additional agreement and this Agreement have the same
effect.
13.10 All the appendix of this Agreement is the undivided part, which has the
same effect with this Agreement.
13.11 This agreement is written in both English and Chinese. If the two versions
conflicts, the Chinese version shall prevail.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute this Agreement. For and on behalf of
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Shareholder
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STATE HARVEST HOLDINGS LIMITED
Legal Representative Person (or his designee):