eh1400543_13da11-yongye.htm

0000950142-14-000854.txt : 20140410 0000950142-14-000854.hdr.sgml : 20140410 20140410092626 ACCESSION NUMBER: 0000950142-14-000854 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20140410 DATE AS OF CHANGE: 20140410 GROUP MEMBERS: MORGAN STANLEY GROUP MEMBERS: MORGAN STANLEY PRIVATE EQUITY ASIA EMPLOYEE INVESTORS III L GROUP MEMBERS: MORGAN STANLEY PRIVATE EQUITY ASIA III HOLDINGS (CAYMAN) LTD GROUP MEMBERS: MORGAN STANLEY PRIVATE EQUITY ASIA III INC. GROUP MEMBERS: MORGAN STANLEY PRIVATE EQUITY ASIA III L.L.C. GROUP MEMBERS: MORGAN STANLEY PRIVATE EQUITY ASIA III L.P. GROUP MEMBERS: MS HOLDINGS INC GROUP MEMBERS: MSPEA AGRICULTURE HOLDING LTD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Yongye International, Inc. CENTRAL INDEX KEY: 0001398551 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE CHEMICALS [2870] IRS NUMBER: 208051010 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-84050 FILM NUMBER: 14755038 BUSINESS ADDRESS: STREET 1: 6TH FLR, STE 608 XUE YUAN INT'L TOWER STREET 2: NO. 1 ZHICHUN ROAD,HAIDIAN DISTRICT, CITY: BEIJING, STATE: F4 ZIP: 000000 BUSINESS PHONE: 86-10-8232-8866 MAIL ADDRESS: STREET 1: 6TH FLR, STE 608 XUE YUAN INT'L TOWER STREET 2: NO. 1 ZHICHUN ROAD,HAIDIAN DISTRICT, CITY: BEIJING, STATE: F4 ZIP: 000000 FORMER COMPANY: FORMER CONFORMED NAME: Yongye Biotechnology International, Inc. DATE OF NAME CHANGE: 20080415 FORMER COMPANY: FORMER CONFORMED NAME: Golden Tan, Inc DATE OF NAME CHANGE: 20070504 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MORGAN STANLEY CENTRAL INDEX KEY: 0000895421 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 363145972 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1585 BROADWAY CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 212-761-4000 MAIL ADDRESS: STREET 1: 1585 BROADWAY CITY: NEW YORK STATE: NY ZIP: 10036 FORMER COMPANY: FORMER CONFORMED NAME: MORGAN STANLEY DEAN WITTER & CO DATE OF NAME CHANGE: 19980326 FORMER COMPANY: FORMER CONFORMED NAME: DEAN WITTER DISCOVER & CO DATE OF NAME CHANGE: 19960315 SC 13D/A 1 eh1400543_13da11-yongye.htm AMENDMENT NO. 11 eh1400543_13da11-yongye.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-1 and Rule 13d-2)

(Amendment No. 11)

Under the Securities Exchange Act of 1934

YONGYE INTERNATIONAL, INC.

(Name of Issuer)

Common Stock, par value $0.001

(Title of Class of Securities)

98607B106

(CUSIP Number)

Marco Chung

Morgan Stanley

Level 46, International Commerce Centre

1 Austin Road West, Kowloon

Hong Kong

+(852) 2848-5200

With a copy to

John E. Lange, Esq.

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019-6064

(212) 373-3000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

April 9, 2014

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box [ ].

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 98607B106

SC 13D

Page 2

1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MORGAN STANLEY
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC, OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)	x
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER -0-
	8	SHARED VOTING POWER 9,366,611
	9	SOLE DISPOSITIVE POWER -0-
	10	SHARED DISPOSITIVE POWER 9,366,611

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,366,611
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	x 1
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.2% 2
14	TYPE OF REPORTING PERSON HC, CO

1	Excludes the 1,155,000 shares of Common Stock beneficially owned by Mr. Zishen Wu, the 7,657,704 shares of Common Stock beneficially owned by Full Alliance, and the 20,000 shares of Common Stock beneficially owned by Abax.
2	Percentage calculated based on 57,870,438 shares outstanding on an as-converted basis as of March 6, 2014, as set forth in the Issuer’s Form 10-K dated March 17, 2014.

CUSIP No. 98607B106

SC 13D

Page 3

1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MS HOLDINGS INCORPORATED
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)	x
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER -0-
	8	SHARED VOTING POWER 9,313,265
	9	SOLE DISPOSITIVE POWER -0-
	10	SHARED DISPOSITIVE POWER 9,313,265

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,313,265
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	x 1
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.1% 2
14	TYPE OF REPORTING PERSON HC, CO

1	Excludes the 1,155,000 shares of Common Stock beneficially owned by Mr. Zishen Wu, the 7,657,704 shares of Common Stock beneficially owned by Full Alliance, and the 20,000 shares of Common Stock beneficially owned by Abax.
2	Percentage calculated based on 57,870,438 shares outstanding on an as-converted basis as of March 6, 2014, as set forth in the Issuer’s Form 10-K dated March 17, 2014.

CUSIP No. 98607B106

SC 13D

Page 4

1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MORGAN STANLEY PRIVATE EQUITY ASIA III, INC.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)	x
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER -0-
	8	SHARED VOTING POWER 9,313,265
	9	SOLE DISPOSITIVE POWER -0-
	10	SHARED DISPOSITIVE POWER 9,313,265

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,313,265
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	x 1
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.1% 2
14	TYPE OF REPORTING PERSON HC, CO

1	Excludes the 1,155,000 shares of Common Stock beneficially owned by Mr. Zishen Wu, the 7,657,704 shares of Common Stock beneficially owned by Full Alliance, and the 20,000 shares of Common Stock beneficially owned by Abax.
2	Percentage calculated based on 57,371,805 shares outstanding on an as-converted basis as of March 6, 2014, as set forth in the Issuer’s Form 10-K dated March 17, 2014.

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SC 13D

Page 5

1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MORGAN STANLEY PRIVATE EQUITY ASIA III, L.L.C.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)	x
6	CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER -0-
	8	SHARED VOTING POWER 9,313,265
	9	SOLE DISPOSITIVE POWER -0-
	10	SHARED DISPOSITIVE POWER 9,313,265

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,313,265
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	x 1
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.1% 2
14	TYPE OF REPORTING PERSON OO

1	Excludes the 1,155,000 shares of Common Stock beneficially owned by Mr. Zishen Wu, the 7,657,704 shares of Common Stock beneficially owned by Full Alliance, and the 20,000 shares of Common Stock beneficially owned by Abax.
2	Percentage calculated based on 57,870,438 shares outstanding on an as-converted basis as of March 6, 2014, as set forth in the Issuer’s Form 10-K dated March 17, 2014.

CUSIP No. 98607B106

SC 13D

Page 6

1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MORGAN STANLEY PRIVATE EQUITY ASIA III, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)	x
6	CITIZENSHIP OR PLACE OF ORGANIZATION CAYMAN ISLANDS

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER -0-
	8	SHARED VOTING POWER 9,313,265
	9	SOLE DISPOSITIVE POWER -0-
	10	SHARED DISPOSITIVE POWER 9,313,265

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,313,265
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	x 1
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.1% 2
14	TYPE OF REPORTING PERSON PN

1	Excludes the 1,155,000 shares of Common Stock beneficially owned by Mr. Zishen Wu, the 7,657,704 shares of Common Stock beneficially owned by Full Alliance, and the 20,000 shares of Common Stock beneficially owned by Abax.
2	Percentage calculated based on 57,870,438 shares outstanding on an as-converted basis as of March 6, 2014, as set forth in the Issuer’s Form 10-K dated March 17, 2014.

CUSIP No. 98607B106

SC 13D

Page 7

1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MORGAN STANLEY PRIVATE EQUITY ASIA EMPLOYEE INVESTORS III, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)	x
6	CITIZENSHIP OR PLACE OF ORGANIZATION CAYMAN ISLANDS

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER -0-
	8	SHARED VOTING POWER 9,313,265
	9	SOLE DISPOSITIVE POWER -0-
	10	SHARED DISPOSITIVE POWER 9,313,265

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,313,265
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	x 1
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.1% 2
14	TYPE OF REPORTING PERSON PN

1	Excludes the 1,155,000 shares of Common Stock beneficially owned by Mr. Zishen Wu, the 7,657,704 shares of Common Stock beneficially owned by Full Alliance, and the 20,000 shares of Common Stock beneficially owned by Abax.
2	Percentage calculated based on 57,870,438 shares outstanding on an as-converted basis as of March 6, 2014, as set forth in the Issuer’s Form 10-K dated March 17, 2014.

CUSIP No. 98607B106

SC 13D

Page 8

1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MORGAN STANLEY PRIVATE EQUITY ASIA III HOLDINGS (CAYMAN) LTD
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)	x
6	CITIZENSHIP OR PLACE OF ORGANIZATION CAYMAN ISLANDS

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER -0-
	8	SHARED VOTING POWER 9,313,265
	9	SOLE DISPOSITIVE POWER -0-
	10	SHARED DISPOSITIVE POWER 9,313,265

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,313,265
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	x 1
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.1% 2
14	TYPE OF REPORTING PERSON OO

1	Excludes the 1,155,000 shares of Common Stock beneficially owned by Mr. Zishen Wu, the 7,657,704 shares of Common Stock beneficially owned by Full Alliance, and the 20,000 shares of Common Stock beneficially owned by Abax.
2	Percentage calculated based on 57,870,438 shares outstanding on an as-converted basis as of March 6, 2014, as set forth in the Issuer’s Form 10-K dated March 17, 2014.

CUSIP No. 98607B106

SC 13D

Page 9

1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MSPEA AGRICULTURE HOLDING LIMITED
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP	(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)	x
6	CITIZENSHIP OR PLACE OF ORGANIZATION CAYMAN ISLANDS

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER -0-
	8	SHARED VOTING POWER 9,313,265
	9	SOLE DISPOSITIVE POWER -0-
	10	SHARED DISPOSITIVE POWER 9,313,265

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,313,265
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	x 1
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.1% 2
14	TYPE OF REPORTING PERSON OO

1	Excludes the 1,155,000 shares of Common Stock beneficially owned by Mr. Zishen Wu, the 7,657,704 shares of Common Stock beneficially owned by Full Alliance, and the 20,000 shares of Common Stock beneficially owned by Abax.
2	Percentage calculated based on 57,870,438 shares outstanding on an as-converted basis as of March 6, 2014, as set forth in the Issuer’s Form 10-K dated March 17, 2014.

CUSIP No. 98607B106

SC 13D

Page 10

TABLE OF CONTENTS

Item 2. Identity and Background

Item 3. Source and Amount of Funds or Other Considerations

Item 4.Purpose of the Transaction

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer

Item 7. Material to be Filed as Exhibits

SCHEDULES

SIGNATURES

CUSIP No. 98607B106

SC 13D

Page 11

INTRODUCTORY NOTE

The following constitutes Amendment No. 11 (this “Amendment”) to the Schedule 13D filed by the undersigned on June 10, 2011, as amended and/or supplemented by Amendment No. 1 to the Schedule 13D filed on August 26, 2011, Amendment No. 2 to the Schedule 13D filed on September 7, 2011, Amendment No. 3 to the Schedule 13D filed on September 9, 2011, Amendment No. 4 to the Schedule 13D filed on October 16, 2012, Amendment No. 5 to the Schedule 13D filed on December 28, 2012, Amendment No. 6 to the Schedule 13D filed on May 17, 2013, Amendment No. 7 to the Schedule 13D filed on September 25, 2013, Amendment No.8 to the Schedule 13D filed on October 16, 2013, Amendment No.9 to the Schedule 13D filed on November 26, 2013 and Amendment No.10 to the Schedule 13D filed on March 26, 2014 (as amended, the “Schedule 13D”). Except as specifically amended by this Amendment, the Schedule 13D remains in full force and effect. Capitalized terms used but not defined in this Amendment have meanings provided in the Schedule 13D.

Item 2. Identity and Background.

The response set forth in Item 2 of the Schedule 13D is hereby amended and supplemented by the following.

This Amendment is being filed jointly on behalf of (i) Morgan Stanley, a Delaware corporation (“MS Parent”), (ii) MS Holdings Incorporated, a Delaware corporation (“MS Holdings”), (iii) Morgan Stanley Private Equity Asia III, Inc., a Delaware corporation (“MS Inc”), (iv) Morgan Stanley Private Equity Asia III, L.L.C., a Delaware limited liability company (“MS LLC”), (v) Morgan Stanley Private Equity Asia III, L.P., a Cayman Islands limited partnership (“MS LP”), (vi) Morgan Stanley Private Equity Asia Employee Investors III, L.P., a Cayman Islands limited partnership (“MS Employee”), (vii) Morgan Stanley Private Equity Asia III Holdings (Cayman) Ltd, a Cayman Islands limited liability company (“MSPEA Holdings”) and (viii) MSPEA Agriculture Holding Limited, a Cayman Islands limited liability company (“MSPEA”) (collectively, the “Reporting Persons”). The Reporting Persons have entered into a joint filing agreement, dated as of April 10, 2014, a copy of which is attached hereto as Exhibit 99.1.

The name, business address, present principal occupation or employment and citizenship of each director and executive officer of MS Parent, MS Holdings, MS Inc, MSPEA Holdings and MSPEA, and the name, business address, present principal occupation or employment and citizenship of each executive officer of MS LLC, MS LP and MS Employee are set forth in Schedule A attached hereto and incorporated herein by reference.

During the last five years, none of the Reporting Persons, nor, to the knowledge of the Reporting Persons, any of the persons listed on Schedule A attached hereto and incorporated herein by reference, has been (1) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (2) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws, other than, in the case of clause (2), as described in Schedule B attached hereto and incorporated herein by reference.

Item 3. Source and Amount of Funds or Other Considerations

The last paragraph of Item 3 of the Schedule 13D is hereby replaced in its entirety by the following paragraph:

The Reporting Persons anticipate that an additional US$15.7 million will be required to fund the additional merger consideration as described in Item 4 below. The increased financing for the merger in connection with the increase in offer price contemplated by the Merger Agreement Amendment No. 1 (as defined below) will be funded by proceeds under the facility made available by CDB pursuant to the Facility Contract.

Item 4. Purpose of the Transaction

Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:

On April 9, 2014, the Company entered into an Amendment No. 1 to the Agreement and Plan of Merger (the “Merger Agreement Amendment No. 1”) with Full Alliance, Parent and Merger Sub. Pursuant to the Merger Agreement Amendment No. 1, (i) the Merger Consideration (as defined in the Merger Agreement) was increased from $6.69 to $7.10, (ii) the maximum amount of Company Expense (as defined in the Merger Agreement) was increased from US$2,000,000 to US$3,000,000, (iii) the definition of the Requisite Company Vote (as defined in the Merger Agreement) was amended so that instead of requiring, among other things, a majority of shares of Company Common Stock outstanding to vote in favor of approving the Merger Agreement, shares of Company Common Stock that are present in person or by proxy and voting for or against approval of the Merger Agreement shall be required for the approval of the Merger Agreement, and (iv) the Termination Date (as defined in the Merger Agreement) was extended from June 23, 2014 to September 22, 2014. This summary of the Merger Agreement

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Amendment No. 1 does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement Amendment No. 1, which is attached hereto as Exhibit 99.2 and incorporated by reference in its entirety into this Item 4.

In connection with the Merger Agreement Amendment No. 1, Mr. Wu, Ms. Zhong, Full Alliance, MSPEA and Lead Rich (collectively, the “Investors”) entered into a first amended and restated interim investors agreement (the “First Amended and Restated Interim Investors Agreement”), pursuant to which the Investors, among other things, consented to Full Alliance, Parent and Merger Sub’s entering into the Merger Agreement Amendment No. 1. This summary of the First Amended and Restated Interim Investors Agreement does not purport to be complete and is qualified in its entirety by reference to the Interim Investors Agreement, which is attached hereto as Exhibit 99.3 and incorporated by reference in its entirety into this Item 4.

Item 6. Contracts, Arrangements, Undertakings or Relationships with respect to the Securities of the Issuer

Item 6 of the Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:

The descriptions in Item 4 herein of the Merger Agreement Amendment No. 1 and the First Amended and Restated Interim Investors Agreement are incorporated herein by reference.

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Item 7. Materials to be Filed as Exhibits.

Exhibit 99.1	Joint Filing Agreement by and between MS Parent, MS Holdings, MS Inc, MS LLC, MS LP, MS Employee, MSPEA Holdings and MSPEA, dated April 10, 2014
Exhibit 99.2	Amendment No. 1 to the Agreement and Plan of Merger, by and among Full Alliance, Parent, Merger Sub and the Company, dated as of April 9, 2014
Exhibit 99.3	First Amended and Restated Interim Investors Agreement, by and among Mr. Wu, Ms. Zhong, Full Alliance, MSPEA and Lead Rich, dated as of April 9, 2014

SCHEDULE A

EXECUTIVE OFFICERS AND DIRECTORS

MORGAN STANLEY

The names of the directors and the names and titles of the executive officers of Morgan Stanley and their principal occupations are set forth below. The business address of each of the directors or executive officers is that of Morgan Stanley at 1585 Broadway, New York, New York 10036.

Name	Title	Citizenship

*James P. Gorman	Chairman of the Board and Chief Executive Officer, Morgan Stanley	Australia and United States

*Erskine B. Bowles	Director	United States

*Howard J. Davies	Professor, SciencesPo	England

*Thomas H. Glocer	Director	United States

*Robert H. Herz	President, Robert H. Herz LLC	United States

*C. Robert Kidder	Director	United States

*Klaus Kleinfeld	Chairman and Chief Executive Officer of Alcoa Inc.	Germany

*Donald T. Nicolaisen	Director	United States

*Hutham S. Olayan	President, Chief Executive Officer of The Olayan Group’s U.S. operations	United States

*James W. Owens	Director	United States

*O. Griffith Sexton	Adjunct professor of finance at Columbia Business School	United States

*Ryosuke Tamakoshi	Senior Advisor to The Bank of Tokyo-Mitsubishi UFJ, Ltd.	Japan

*Masaaki Tanaka	Representative Director and Deputy President of Mitsubishi UFJ Financial Group, Inc.	Japan

*Laura D’Andrea Tyson	S. K. and Angela Chan Professor of Global Management at the Walter A. Haas School of Business at the University of California, Berkeley	United States

*Rayford Wilkins, Jr.	Director	United States

Gregory J. Fleming	Executive Vice President, President of Morgan Stanley Wealth Management and President of Investment Management	United States

Eric F. Grossman	Executive Vice President and Chief Legal Officer	United States

Keishi Hotsuki	Chief Risk Officer	Japan

Colm Kelleher	Executive Vice President and President of Institutional Securities	England and Ireland

Ruth Porat	Executive Vice President and Chief Financial Officer	United States

James A. Rosenthal	Executive Vice President and Chief Operating Officer	United States

* Director

EXECUTIVE OFFICERS AND DIRECTORS OF MS HOLDINGS INCORPORATED

The names of the directors and the names and titles of the executive officers of MS Holdings Incorporated and their principal occupations are set forth below. The business address of each of the directors or executive officers is that of MS Holdings Incorporated at 1585 Broadway, New York, New York 10036. Unless otherwise indicated, each individual is a United States citizen and each occupation set forth opposite an individual’s name refers to MS Holdings Incorporated.

Name	Title

Harvey Bertram Mogenson	Director and President 1633 Broadway, New York, NY 10019 United States

Edmond Moriarty	Director 1585 Broadway, New York, NY 10036, United States

Kevin Klingert	Director 522 Fifth Avenue, New York, NY 10036, United States

Louis A. Palladino, Jr.	Vice President 1633 Broadway, New York, NY 10019 United States

Noel C. Langlois	Vice President 100 Front Street, West Conshohocken, PA 19428, United States

Arthur J. Lev	Director and Vice President 522 Fifth Avenue, New York, NY 10036, United States

*Christina Huffman	Vice President 1221 Avenue of the Americas New York, NY, 100200, United States

Jason Koenig	Vice President 1221 Avenue of the Americas New York, NY, 100200, United States

Scott William Moss	Vice President 1221 Avenue of the Americas New York, NY, 100200, United States

Ella D. Cohen	Vice President 522 Fifth Avenue, New York, NY 10036, United States

Craig Krasinski	Vice President 100 Front Street, West Conshohocken, PA 19428, United States

Matthew Paul Martin	Vice President 522 Fifth Avenue, New York, NY 10036, United States

Sheri Lynn Schreck	Vice President 522 Fifth Avenue, New York, NY 10036, United States

Robert Serafin	Vice President 201 Plaza Two, Jersey City, NY 07311, United States

Jyoti J. Mandalia	Treasurer 750 Seventh Avenue, New York, NY 10019, United States

* Dual citizenship - American and British

EXECUTIVE OFFICERS AND DIRECTORS OF MORGAN STANLEY PRIVATE EQUITY ASIA III, INC.

The names of the directors and the names and titles of the executive officers of Morgan Stanley Private Equity Asia III, Inc. and their principal occupations are set forth below. The business address of each of the directors or executive officers is as provided below. Unless otherwise indicated, each individual is a United States citizen and each occupation set forth opposite an individual’s name refers to Morgan Stanley Private Equity Asia III, Inc.

Name	Title	Address

Hsuan Chin Chou	Director	International Commerce Centre 1 Austin Road West, Kowloon Hong Kong

Alan K. Jones	Director, President and Managing Director	1585 Broadway New York, New York 10036

John J. Moon	Director	1585 Broadway New York, New York 10036

Fred Steinberg	Chief Financial Officer, Assistant Treasurer and Vice President	1 New York Plaza New York, New York 10004

Jason Koenig	Chief Legal Officer and Secretary and Vice President	1221 Avenue of the Americas New York, New York 10020

Robert M. Murphy	Vice President	440 South LaSalle St. One Financial Plaza Chicago, Illinois 60605

Christopher L. O'Dell	Vice President	522 Fifth Avenue New York, New York 10036

*Edwin van Keulen	Vice President and Assistant Treasurer	1633 Broadway New York, New York 10019

Michael A. Henry	Chief Compliance Officer and Vice President	1221 Avenue of the Americas New York, New York 10020

Samantha Jennifer Cooper	Vice President	1585 Broadway New York, New York 10036

Scott William Moss	Vice President and Assistant Secretary	1221 Avenue of the Americas New York, New York 10020

Christopher H. Norris	Vice President	1585 Broadway New York, New York 10036

Karen A. Cassidy	Treasurer	750 Seventh Avenue New York 10019

**Brian Barrett	Vice President	1585 Broadway New York, New York 10036

* Citizenship - Dutch

** Dual citizenship - American and Irish

EXECUTIVE OFFICERS OF MORGAN STANLEY

PRIVATE EQUITY ASIA III, LLC

The managing member of Morgan Stanley Private Equity Asia III, L.L.C. is Morgan Stanley Private Equity Asia III, Inc. Morgan Stanley Private Equity Asia III, L.L.C. does not have officers or directors.

EXECUTIVE OFFICERS OF MORGAN STANLEY

PRIVATE EQUITY ASIA III, L.P.

The general partner of Morgan Stanley Private Equity Asia III, L.P. is Morgan Stanley Private Equity Asia III, LLC. Morgan Stanley Private Equity Asia III, L.P. does not have officers or directors

EXECUTIVE OFFICERS AND DIRECTORS OF MORGAN STANLEY PRIVATE

EQUITY ASIA EMPLOYEE INVESTORS III, L.P.

The general partner of Morgan Stanley Private Equity Asia Employee Investors III, L.P. is Morgan Stanley Private Equity Asia III, LLC. Morgan Stanley Private Equity Asia Employee Investors III, L.P. does not have officers or directors.

EXECUTIVE OFFICERS AND DIRECTORS OF MORGAN STANLEY PRIVATE EQUITY ASIA III HOLDINGS (CAYMAN) LTD

The name of the director and the names and titles of the executive officer of Morgan Stanley Private Equity Asia III Holdings (Cayman) Ltd and their principal occupations are set forth below. The business address of each of the director or executive officer is also set forth below. Unless otherwise indicated, each individual is a United States citizen and each occupation set forth opposite an individual’s name refers to Morgan Stanley Private Equity Asia III Holdings (Cayman) Ltd.

Name	Title	Address

Samantha Jennifer Cooper	Director	1585 Broadway New York, New York 10036

Karen A. Cassidy	Treasurer	750 Seventh Avenue, NY 10019

Edwin van Keulen*	Treasurer	1633 Broadway New York, NY 10019

Christopher H. Norris	Vice President	1585 Broadway New York, New York 10036

*Citizenship - Dutch

EXECUTIVE OFFICERS AND DIRECTORS OF MSPEA AGRICULTURE HOLDING LIMITED

The name of the director and the names and titles of the executive officer of MSPEA Agriculture Holding Limited and their principal occupations are set forth below. The business address of each of the director or executive officer is also set below. Unless otherwise indicated, each individual is a United States citizen and each occupation set forth opposite an individual’s name refers to MSPEA Agriculture Holding Limited.

Name	Title	Address

Alan K. Jones	Director	1585 Broadway New York, New York 10036

Samantha Jennifer Cooper	Director	1585 Broadway New York, New York 10036

Choi Sung Min	Director	HungKuk Life Insurance Building 226 Shinmun-ro 1-Ga, Chongro-Ku Seoul 110-061, Republic of Korea

Karen A. Cassidy	Treasurer	750 Seventh Avenue, NY 10019

Edwin van Keulen*	Treasurer	1633 Broadway New York, NY 10036

*Citizenship - Dutch

SCHEDULE B

LEGAL PROCEEDINGS

Unless the context otherwise requires, the term “Morgan Stanley” means Morgan Stanley and its consolidated subsidiaries. Morgan Stanley & Co. LLC (“MS&Co.”) and Morgan Stanley Smith Barney LLC (“MSSB LLC”), referenced below, are Morgan Stanley’s primary U.S. broker-dealers.

(a) On September 30, 2009, Morgan Stanley entered into an administrative settlement agreement with the U.S. Environmental Protection Agency (“EPA”) to resolve certain violations of the U.S. environmental laws allegedly committed by Morgan Stanley during 2005. These alleged violations included: distribution of approximately 2.7 million gallons of reformulated gasoline that failed to comply with maximum benzene content limitations; failure to report volume and property information for each batch of gasoline blendstock imported and reformulated gasoline produced; failure to conduct an annual attest engagement; and failure to provide product transfer documents for each transfer of reformulated gasoline and each batch of previously certified gasoline. Without admitting or denying the EPA’s allegations, Morgan Stanley agreed to resolve these matters for a civil penalty of $405,000.

(b) On June 24, 2010, Morgan Stanley and the Office of the Attorney General for the Commonwealth of Massachusetts (“Massachusetts OAG”) entered into an Assurance of Discontinuance (“AOD”) to resolve the Massachusetts OAG’s investigation of the Issuer’s financing, purchase and securitization of certain subprime residential mortgages. The AOD provides for Morgan Stanley to make payments totaling approximately $102.7 million, and for Morgan Stanley to use its best efforts to implement certain business practices related to such activities on a prospective basis.

In addition, MS&Co. has been involved in a number of civil proceedings and regulatory actions which concern matters arising in connection with the conduct of its business. Certain of such proceedings have resulted in findings of violation of federal or state securities laws. Such proceedings are reported and summarized in the MS&Co. Form BD filed with the SEC, which descriptions are hereby incorporated by reference. The MSSB LLC Form BD filed with the SEC is also hereby incorporated by reference.

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Amendment is true, complete and correct.

Dated: April 10, 2014.

	MORGAN STANLEY

	By:	/s/ Christina Huffman
		Name: Christina Huffman
		Title: Authorized Signatory


	MS HOLDINGS INCORPORATED

	By:	/s/ Christina Huffman
		Name: Christina Huffman
		Title: Vice President


	MORGAN STANLEY PRIVATE EQUITY ASIA III, INC.

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Vice President


	MORGAN STANLEY PRIVATE EQUITY ASIA III, L.L.C.

	By:	Morgan Stanley Private Equity Asia III, Inc., its managing member

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Vice President


	MORGAN STANLEY PRIVATE EQUITY ASIA III, L.P.

	By:	Morgan Stanley Private Equity Asia III, L.L.C., its general partner

	By:	Morgan Stanley Private Equity Asia III, Inc., its managing member

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Vice President

	MORGAN STANLEY PRIVATE EQUITY ASIA EMPLOYEE INVESTORS III, L.P.

	By:	Morgan Stanley Private Equity Asia III, L.L.C., its general partner

	By:	Morgan Stanley Private Equity Asia III, Inc., its managing member

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Vice President


	MORGAN STANLEY PRIVATE EQUITY ASIA III HOLDINGS (CAYMAN) LTD

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Sole Director


	MSPEA AGRICULTURE HOLDING LIMITED

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Director

EXHIBIT INDEX

Exhibit 99.1	Joint Filing Agreement by and between MS Parent, MS Holdings, MS Inc, MS LLC, MS LP, MS Employee, MSPEA Holdings and MSPEA, dated April 10, 2014
Exhibit 99.2	Amendment No. 1 to the Agreement and Plan of Merger, by and among Full Alliance, Parent, Merger Sub and the Company, dated as of April 9, 2014
Exhibit 99.3	First Amended and Restated Interim Investors Agreement, by and among Mr. Wu, Ms. Zhong, Full Alliance, MSPEA and Lead Rich, dated as of April 9, 2014

EX-99.1 2 eh1400543_ex9901.htm EXHIBIT 99.1 eh1400543_ex9901.htm

EXHIBIT 99.1

JOINT FILING AGREEMENT

In accordance with Rule 13d−1(k)(l) under the Securities Exchange Act of 1934, as amended, each of the undersigned hereby agrees to the joint filing, along with all other such undersigned, on behalf of the Reporting Persons (as defined in the joint filing), of a statement on Schedule 13D (including amendments thereto) with respect to the common stock, par value $0.001, of the Issuer (as defined in the attached Schedule 13D or an amendment to Schedule 13D), and agrees that this agreement be included as an Exhibit to such joint filing. This agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.

[Signature Page Follows]

IN WITNESS WHEREOF, each of the undersigned has executed this Joint Filing Agreement as of this 10th day of April, 2014.

	MORGAN STANLEY

	By:	/s/ Christina Huffman
		Name: Christina Huffman
		Title: Authorized Signatory


	MS HOLDINGS INCORPORATED

	By:	/s/ Christina Huffman
		Name: Christina Huffman
		Title: Vice President


	MORGAN STANLEY PRIVATE EQUITY ASIA III, INC.

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Vice President


	MORGAN STANLEY PRIVATE EQUITY ASIA III, L.L.C.

	By:	Morgan Stanley Private Equity Asia III, Inc., its managing member

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Vice President

	MORGAN STANLEY PRIVATE EQUITY ASIA III, L.P.

	By:	Morgan Stanley Private Equity Asia III, L.L.C., its general partner

	By:	Morgan Stanley Private Equity Asia III, Inc., its managing member

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Vice President

	MORGAN STANLEY PRIVATE EQUITY ASIA EMPLOYEE INVESTORS III, L.P.

	By:	Morgan Stanley Private Equity Asia III, L.L.C., its general partner

	By:	Morgan Stanley Private Equity Asia III, Inc., its managing member

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Vice President


	MORGAN STANLEY PRIVATE EQUITY ASIA III HOLDINGS (CAYMAN) LTD

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Sole Director


	MSPEA AGRICULTURE HOLDING LIMITED

	By:	/s/ Samantha Jennifer Cooper
		Name: Samantha Jennifer Cooper
		Title: Director

EX-99.2 3 eh1400543_ex9902.htm EXHIBIT 99.2 eh1400543_ex9902.htm

EXHIBIT 99.2

Execution Version

AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER

AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER (this “Amendment”), dated as of April 9, 2014, among Full Alliance International Limited, a British Virgin Islands company (“Holdco”), Yongye International Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“Parent”), Yongye International Merger Sub Limited, a Nevada corporation and a wholly owned subsidiary of Parent (“Merger Sub”) and Yongye International, Inc., a Nevada corporation (the “Company”). Holdco, Parent, Merger Sub and the Company may hereafter be referred to as a “Party” in their individual capacities and as “Parties” collectively.

WHEREAS, the Parties have entered into that certain Agreement and Plan of Merger, dated as of September 23, 2013 (the “Merger Agreement”), upon the terms and subject to the conditions of which, Merger Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger and becoming a wholly owned subsidiary of Parent as a result of the Merger;

WHEREAS, the Parties desire to amend the Merger Agreement so as to, among other things, (i) increase the Merger Consideration (as defined in the Merger Agreement) from US$6.69 to US$7.10, (ii) increase the maximum amount of the Company Expense (as defined in the Merger Agreement) from US$2,000,000 to US$3,000,000, and (iii) extend the Termination Date (as defined in the Merger Agreement) from June 23, 2014 to September 22, 2014, subject to the other amendments to the Merger Agreement set forth in this Amendment;

WHEREAS, Section 9.10 of the Merger Agreement provides that the Parties may amend the Merger Agreement by action taken by or on behalf of their respective boards of directors by an instrument in writing at any time prior to the Effective Time (as defined in the Merger Agreement);

WHEREAS, the Company Board (as defined in the Merger Agreement), acting upon the unanimous recommendation of the Special Committee (as defined in the Merger Agreement), has (i) determined that it is in the best interest of the Company and its stockholders (other than the Rollover Holders (as defined in the Merger Agreement)), and declared it advisable, to enter into this Amendment, (ii) adopted resolutions approving the execution, delivery and performance by the Company of this Amendment and the consummation of the transactions contemplated by the Merger Agreement, as amended by this Amendment, including the Merger and (iii) resolved to recommend that the Stockholders (as defined in the Merger Agreement) approve the Merger Agreement, as amended by this Amendment, and the Transactions (as defined in the Merger Agreement);

WHEREAS, the board of directors of each of Holdco, Parent and Merger Sub has (i) approved the execution, delivery and performance by Holdco, Parent and Merger Sub, respectively, of this Amendment and the consummation of the transactions contemplated by the Merger Agreement, as amended by this Amendment, and (ii) declared it advisable for Holdco, Parent and Merger Sub, respectively, to enter into this Amendment;

NOW, THEREFORE, the Parties agree to amend the Merger Agreement as follows:

1.	Definitions; References

Unless otherwise specifically defined herein, all capitalized terms used but not defined herein shall have the meanings ascribed to them under the Merger Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Merger Agreement shall, from and after the execution of this Amendment, refer to the Merger Agreement as amended by this Amendment. Notwithstanding the foregoing, (a) references to the date of the Merger Agreement, as amended hereby,

shall in all instances continue to refer to September 23, 2013, and references to “the date hereof” and “the date of this Agreement” shall continue to refer to September 23, 2013, and (b) references to the Proxy Statement shall in all instances refer to the proxy statement relating to the approval of the Merger Agreement, as amended by this Amendment, that the Company, with the assistance of Holdco, Parent and Merger Sub, shall prepare and cause to be filed with the SEC after the date of this Amendment.

2.	Amendments to Merger Agreement

2.1

Amendment to Section 2.01 (a)

The reference to “US$6.69” in Section 2.01(a) of the Merger Agreement is hereby amended to be “US$7.10”.

2.2

Amendment to Section 3.04 (a)

Sub-section (a) of Section 3.04 (Authority Relative to This Agreement; Fairness) is hereby amended and restated in its entirety to read as follows:

“The Company has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and, subject to adoption of this Agreement by the Requisite Company Vote, to consummate the Merger. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Merger have been duly authorized by the Company Board, and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by it of the Merger, in each case, subject only to the approval of this Agreement by the (i) affirmative vote of the holders of at least a majority of the issued and outstanding Common Shares and Preferred Shares, voting together as a single class, with the number of votes the holders of Preferred Shares shall be entitled to vote equal to the number of Common Shares into which such Preferred Shares are convertible, as determined in accordance with the articles of incorporation of the Company, (ii) affirmative vote or consent of the holders of at least a majority of the issued and outstanding Preferred Shares and (iii) affirmative vote of the holders of at least a majority of the issued and outstanding Common Shares (other than the Excluded Shares) that are present in person or by proxy and voting for or against approval of the Merger Agreement at the Stockholders’ Meeting (collectively, the “Requisite Company Vote”), all in accordance with the Company’s articles of incorporation and bylaws and the NRS. This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Holdco, Parent and Merger Sub, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles and (ii) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies.”

2.3

Amendment to Section 3.08(a)

The second sentence in sub-section (a) of Section 3.08 (SEC Filings; Financial Statements) is hereby amended and restated in its entirety to read as follows:

“The Company SEC Reports (i) at the time they were filed, and if amended, as of the date of such amendment, complied as to form in all material respects with the applicable requirements of the Securities Act, or the Exchange Act, as the case may be, and the rules and regulations

promulgated thereunder, each as in effect on the date so filed, and (ii) did not, at the time they were filed, or, if amended, as of the date of such amendment, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; provided that the parties acknowledge that the Company will be filing with the SEC an amendment to the Company’s Annual Report on Form 10-K for the year ended December 31, 2013 to include additional disclosure with respect to, among other things, the new manufacturing facility described in the Company’s definitive proxy statement filed with the SEC on January 9, 2014.”

2.4

Amendment to Section 4.04(b)

The second sentence in sub-section (b) of Section 4.04 (Financing; Equity Rollover) is hereby amended and restated in its entirety to read as follows:

“Assuming (A) the Financing is funded in accordance with the Financing Commitments, and (B) the satisfaction or waiver of the conditions to the obligation of Holdco, Parent and Merger Sub to consummate the Merger as set forth in Sections 7.01 and 7.02, as of April 9, 2014, the aggregate proceeds contemplated by the Debt Financing and the Equity Financing will be sufficient for Merger Sub and the Surviving Corporation to pay (1) the aggregate Merger Consideration, and (2) fees and expenses incurred by the Company in connection with the consummation of the Transactions upon the terms and conditions contemplated hereby that are outstanding as of the Effective Time.”

2.5

Amendment to Section 8.02(a)

The reference to “June 23, 2014” in Section 8.02(a) of the Merger Agreement is hereby amended to be “September 22, 2014”.

2.6

Amendment to Section 8.06(c)

Sub-section (c) of Section 8.06 (Fees Following Termination) is hereby amended and restated in its entirety to read as follows:

“If the Company or Parent terminates this Agreement pursuant to Section 8.02(c), Parent will pay, or cause to be paid to the Company, all of the reasonable documented out-of-pocket expenses (including all fees and expenses of counsel, investment bankers, experts and consultants) incurred by the Company in connection with this Agreement or any of the Transactions up to a maximum amount of US$3,000,000 (the “Company Expense”), such payment to be made as promptly as possible (but in any event within two (2) Business Days) following such termination. In the event the Company is obligated to pay the Company Termination Fee pursuant to Section 8.06(a) in connection with a termination of this Agreement pursuant to Section 8.02(c), then concurrently with the payment of the Company Termination Fee the Company shall also pay to Parent the amount of Company Expense previously paid to the Company by Parent pursuant to this Section 8.06(c).”

3.	Miscellaneous

3.1

No Further Amendment

The Parties agree that all other provisions of the Merger Agreement shall, subject to the amendments in Section 2 of this Amendment, continue unamended, in full force and effect and constitute legal and binding obligations of the Parties. This Amendment forms an integral and inseparable part of the Merger Agreement.

3.2

Representations and Warranties of the Company

The Company hereby represents and warrants to Holdco, Parent and Merger Sub that (i) it has all requisite corporate power and authority to execute and deliver this Amendment, to perform its obligations hereunder and, subject to adoption of the Merger Agreement, as amended by this Amendment, by the Requisite Company Vote, to consummate the Merger; (ii) the execution, delivery and performance by the Company of this Amendment and the consummation by the Company of the Merger have been duly and validly authorized by the Company Board, and no other corporate action on the part of the Company is necessary to authorize the execution and delivery by the Company of this Amendment and consummation by it of the Merger, in each case, subject only to the approval of the Merger Agreement, as amended by this Amendment, by the Requisite Company Vote, all in accordance with the Company’s articles of incorporation and bylaws and the NRS; (iii) this Amendment has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Holdco, Parent and Merger Sub, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except (a) as limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights, and to general equity principles and (b) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies; and (iv) none of the requirements or restrictions of any Takeover Statute would apply to prevent the consummation of any of the transactions contemplated by this Amendment or the Merger Agreement, including the Merger, and that the Company Board has adopted such resolutions as are necessary so that the Takeover Statutes are rendered inapplicable to the Merger, any of the other Transactions, this Amendment, the Merger Agreement or any other transaction contemplated by this Amendment or the Merger Agreement.

3.3

Representations and Warranties of Holdco, Parent and Merger Sub

Holdco, Parent and Merger Sub hereby, jointly and severally, represent and warrant that (i) each of Holdco, Parent and Merger Sub has all requisite corporate power and authority to execute and deliver this Amendment, to perform its obligations hereunder and to consummate the Transactions; (ii) the execution, delivery and performance of this Amendment by Holdco, Parent and Merger Sub have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of Holdco, Parent or Merger Sub are necessary to authorize this Amendment or to consummate the Transactions (other than the filings, notifications and other obligations and actions described in Section 4.03(b) of the Merger Agreement); and (iii) this Amendment has been duly and validly executed and delivered by Holdco, Parent and Merger Sub and, assuming due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of each of Holdco, Parent and Merger Sub, enforceable against each of Holdco, Parent and Merger Sub in accordance with its terms, except (a) as limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles and (b) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

3.4

Other Miscellaneous Terms

The provisions of Article IX (Miscellaneous) of the Merger Agreement shall apply mutatis mutandis to this Amendment, and to the Merger Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms therein as modified by this Amendment.

[Signature Page Follows]

IN WITNESS WHEREOF, Holdco, Parent, Merger Sub and the Company have caused this Amendment to be executed as of the date first written above by their respective officers thereunto duly authorized.

	FULL ALLIANCE INTERNATIONAL LIMITED

	By:	/s/ Xingmei Zhong
	Name: Xingmei Zhong
	Title: Director

	YONGYE INTERNATIONAL LIMITED

	By:	/s/ Zishen Wu
	Name: Zishen Wu
	Title: Director

	YONGYE INTERNATIONAL MERGER SUB LIMITED

	By:	/s/ Zishen Wu
	Name: Zishen Wu
	Title: Director

	YONGYE INTERNATIONAL, INC.

	By:	/s/ Sean Shao
	Name: Sean Shao
	Title: Director and Chair of Special Committee

[Signature Page to Amendment No. 1 to the Merger Agreement]

EX-99.3 4 eh1400544_ex9903.htm EXHIBIT 99.3 eh1400544_ex9903.htm

EXHIBIT 99.3

Execution Version

FIRST AMENDED AND RESTATED INTERIM INVESTORS AGREEMENT

This First Amended and Restated Interim Investors Agreement (the “Agreement”) is made as of April 9, 2014 by and among Mr. Zishen Wu (“Mr. Wu”), Ms. Xingmei Zhong, Full Alliance International Limited (“Full Alliance”), MSPEA Agriculture Holding Limited (“MSPEA”), and Lead Rich International Limited (“Lead Rich”) (collectively, the “Investors”). Capitalized terms used herein but not otherwise defined shall have the meanings given to them in the Merger Agreement (as defined below).

RECITALS

WHEREAS, on September 23, 2013, Yongye International, Inc. (the “Company”), Full Alliance, Yongye International Limited, a wholly owned subsidiary of Full Alliance (“Parent”) and Yongye International Merger Sub Limited, a wholly owned subsidiary of Parent (“Merger Sub”), executed an Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified in accordance with Section 1.2 hereof, the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company continuing as the surviving corporation;

WHEREAS, concurrently with the execution and delivery of the Merger Agreement, each of Mr. Wu, Full Alliance, MSPEA and Parent executed a Contribution Agreement, pursuant to which: (i) Full Alliance will contribute Shares of the Company it owns to Parent immediately prior to the Closing of the Merger by way of a capital contribution to its wholly-owned subsidiary; and (ii) each of Mr. Wu and MSPEA will contribute Shares of the Company he or it owns to Parent immediately prior to the Closing of the Merger in exchange for ordinary shares of Full Alliance;

WHEREAS, concurrently with the execution and delivery of the Merger Agreement, each of Mr. Wu and Lead Rich executed an Equity Commitment Letter in favor of Full Alliance, pursuant to which each of Mr. Wu and Lead Rich has agreed, subject to the terms and conditions set forth therein, to make an equity investment in Full Alliance in an amount equal to his or its Equity Commitment (as defined in the relevant Equity Commitment Letter) immediately prior to the Closing of the Merger;

WHEREAS, concurrently with the execution and delivery of the Merger Agreement, Mr. Wu and MSPEA executed the Limited Guarantee, pursuant to which each has agreed, subject to the terms and conditions set forth therein, to guarantee his or its Guaranteed Percentage (as defined in the Limited Guarantee) of the Guaranteed Obligations (as defined in the Limited Guarantee) up to its Maximum Amount (as defined in the Limited Guarantee);

WHEREAS, as of the date hereof, each of Full Alliance, Parent, Merger Sub and the Company desires to enter into an Amendment No. 1 to the Merger Agreement, substantially in the form attached hereto as Exhibit A (“Amendment No. 1”), and to obtain written approval of Amendment No. 1 by each Investor, in accordance with Section 1.2 hereof;

WHEREAS, concurrently with the execution and delivery of the Merger Agreement, the Investors executed an Interim Investors Agreement; and

WHEREAS, pursuant to Section 3.2 of the Interim Investors Agreement, the Investors desire to amend and restate the Interim Investors Agreement in its entirety, as set forth in this Agreement.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants and obligations hereinafter set forth, the Investors hereby agree to amend and restate the Interim Investors Agreement in its entirety as follows:

AGREEMENT

1.	AGREEMENTS AMONG THE INVESTORS.

1.1 Actions of the Company. On and after the date of this Agreement, absent the written consent of every other Investor: (i) Full Alliance shall not, and shall cause each of Parent and Merger Sub not to, and each of Mr. Wu and Ms. Xingmei Zhong shall cause Full Alliance not to, direct or request in writing that the Company or any Company Subsidiary take or omit to take any action, which action or omission (a “Prohibited Action or Omission”) would or would reasonably be expected to (x) cause the Company to be in breach of any representation, warranty, covenant or agreement under the Merger Agreement or (y) constitute, either alone or in combination with any other event, circumstance, change or effect, a Company Material Adverse Effect; and (ii) no Investor shall consent to any Prohibited Action or Omission in writing; provided, that nothing in this Section 1.1 shall prevent Mr. Wu or any director of the Company nominated by MSPEA from taking any action in his or her capacity as a director or officer (as the case may be) of the Company, if such person determines in good faith that failure to take such action is inconsistent with his or her fiduciary obligations.

1.2 Actions of Full Alliance, Parent and Merger Sub. The Investors shall have the sole power, authority and discretion to direct the actions of Full Alliance, Parent and Merger Sub in all matters in respect of the Merger Agreement. All actions of Full Alliance, Parent and Merger Sub relating to the Merger Agreement shall require the approval of each of the Investors, other than determining that any closing condition thereunder has been satisfied which shall require the approval of each of the Investors other than Lead Rich. For the avoidance of any doubt, none of the following actions by Full Alliance, Parent or Merger Sub: (i) amending the

Merger Agreement, or (ii) waiving any closing condition thereunder, shall be effective, unless such action has been approved in writing by each of the Investors (including Lead Rich).

1.3 Contribution Agreement; Equity Commitment Letters; Limited Guarantee. Each of Mr. Wu, Full Alliance, MSPEA and Lead Rich hereby acknowledges and agrees that (i) he or it is bound by his or its obligations set forth in the Contribution Agreement (if applicable), his or its Equity Commitment Letter (if any) and the Limited Guarantee (if applicable), (ii) he or it shall not be permitted to amend, modify or terminate any provision thereunder, and (iii) he or it shall perform his or its obligations under the Contribution Agreement (if applicable), his or its Equity Commitment Letter (if any) and the Limited Guarantee (if applicable), in each case, to the extent applicable to such person and subject to the terms and conditions set forth therein.

1.4 Escrow Agreement. The Investors acknowledge that an escrow agreement, dated as of September 23, 2013 (the “Escrow Agreement”), has been executed by Lead Rich, MSPEA and The Hongkong and Shanghai Banking Corporation Limited (the “Escrow Agent”). The Release Notice (as defined in the Escrow Agreement, the “Release Notice”) shall be executed by each of Lead Rich and MSPEA and delivered to the Escrow Agent following satisfaction of the following conditions: (i) each of Full Alliance, Parent and Merger Sub delivers to Lead Rich a written certificate in agreed form, signed by an officer of such party, certifying in good faith that all of the conditions to such party’s obligation to consummate the Merger set forth in Article VII of the Merger Agreement have been satisfied as of the date of such certificate as if such date were the Closing Date (other than the delivery of the certificates required by Sections 7.02(c) and 7.03(c) of the Merger Agreement, which shall take place on the Closing Date) and that such party is not aware of any reason why such conditions will not be satisfied on the Closing Date; (ii) China Development Bank (the “Lender”) confirms to Full Alliance and Lead Rich that, subject only to confirmation by the Paying Agent of its receipt of $35,000,000 in respect of the Mezzanine Debt Financing, $15,000,000 in respect of the Sponsor Equity Financing and $12,000,000 in respect of the CEO Equity Financing, it shall deposit $214,000,000 with the Paying Agent pursuant to the Loan Agreement; (iii) Mr. Wu confirms to Full Alliance and Lead Rich that he shall deposit $12,000,000 with the Paying Agent in respect of the CEO Equity Financing concurrently with Lead Rich depositing $35,000,000 in respect of the Mezzanine Debt Financing and $15,000,000 in respect of the Sponsor Equity Financing with the Paying Agent; (iv) Full Alliance and MSPEA deliver to Lead Rich a written certificate in agreed form, signed by an officer of each of them, certifying in good faith that all of the conditions to Lead Rich’s obligation to purchase and pay for the Notes (as defined in the Note Purchase Agreement) set forth in Article III of the Note Purchase Agreement (A) that can be satisfied on the date of such certificate are satisfied on such date and will be satisfied on the Closing (as defined in the Note Purchase Agreement) without further action by any person and (B) that cannot be satisfied on the date of such certificate will be satisfied on the Closing (as defined in the Note Purchase Agreement) without further action by any person; and (v) arrangements reasonably satisfactory to Lead Rich have been made for the payment of its and the Collateral Agent’s costs and expenses by Full Alliance as contemplated by Section 3.8 of the Note Purchase Agreement (collectively, the “Escrow Release Conditions”). Upon termination of the Merger Agreement in accordance with its terms, Lead Rich and MSPEA shall immediately jointly execute and deliver to the Escrow Agent the written notice contemplated by Section 14.1(b) of the Escrow

Agreement (the “Termination Notice”) informing the Escrow Agent of such termination and instructing the Escrow Agent to return all funds in the Escrow Account (as defined in the Escrow Agreement) to Lead Rich. Furthermore, Lead Rich and MSPEA hereby agree to jointly execute and deliver to the Escrow Agent the written notice contemplated in Section 14.1(c) of the Escrow Agreement in the event (a) a definitive proxy statement for the Stockholders’ Meeting (including the notice of the Stockholders’ Meeting) has been filed with the U.S. Securities and Exchange Commission and mailed to the Stockholders on or prior to March 9, 2014 and (b) such definitive proxy statement provides that the Stockholders’ Meeting shall be held on or prior to April 23, 2014. Subject to Section 1.5(c), MSPEA and Full Alliance shall be jointly and severally responsible for all fees and expenses of the Escrow Agent and shall promptly pay all such fees and expenses upon receipt of a request for payment from the Escrow Agent.

1.5 Certain Fees and Expenses.

(a) If the Merger is not consummated, and the failure of the Merger to be consummated is not due to the willful breach by one or more Investors of this Agreement or any other agreement relating to the Merger, the Investors agree that, except as provided in the Note Purchase Agreement: (i) each Investor shall be responsible for the fees and out-of-pocket expenses payable to his or its respective legal advisor (a “Legal Advisor”) in connection with the Merger incurred prior to the termination of this Agreement with respect to such Investor; (ii) the Investors shall be responsible for the following percentages of all fees and out-of-pocket expenses (A) payable in connection with the Merger to all advisors to the Investors in connection with the Merger (other than the Legal Advisors and the Escrow Agent), (B) incurred in the defense, pursuit or settlement of any disputes or litigation relating to the Transaction (other than any dispute or litigation relating to service as a director or officer of the Company), and (C) all fees and out-of-pocket expenses payable to the Nevada legal advisor in connection with such advisor’s review and advice on the Merger Agreement: 47.58% for Mr. Wu, 43.56% for MSPEA and 8.86% for Lead Rich; and (iii) the Investors shall be responsible for the following percentages of (I) the fees and interests payable by Parent under that certain loan agreement between Parent and the Lender dated as of December 27, 2012 and (II) the upfront fee payable by Parent under the Loan Agreement: 52.21% for Mr. Wu and 47.79% for MSPEA; provided, however, that each Investor shall be solely responsible for fees and out-of-pocket expenses payable by him or it to any advisor retained by him or it to conduct due diligence in connection with the Merger.

(b) If the Merger is not consummated, and the failure of the Merger to be consummated is due to the willful breach by one or more Investors of this Agreement or any agreement relating to the Merger, then such breaching Investors shall promptly reimburse each non-breaching Investor for all fees and out-of-pocket expenses incurred by such non-breaching Investor in connection with the Merger.

(c) At the Closing, Full Alliance shall reimburse each Investor for, or pay on behalf of each Investor, as the case may be, all fees and out-of-pocket expenses incurred by such Investor (including without limitation fees and expenses of his or its Legal Advisor and the Escrow Agent (as defined below)) in connection with the Merger.

(d) For the avoidance of doubt, the Investors acknowledge that certain Consortium Agreement, dated October 15, 2012 (the “Consortium Agreement”), by and among Mr. Wu, Full Alliance, MSPEA and Abax Global Capital (Hong Kong) Limited, was terminated as of September 23, 2013 and agree that the agreement with respect to fees and expenses set forth in Section 5 of the Consortium Agreement is of no further force or effect.

(e) The Investors agree that any termination, break-up or other fees or amounts payable to Full Alliance, Parent or Merger Sub by the Company pursuant to the Merger Agreement shall be allocated among the Investors, as follows: 47.58% for Mr. Wu, 43.56% for MSPEA and 8.86% for Lead Rich.

(f) In the event the Company’s fees and out-of-pocket expenses shall become payable by Parent in accordance with Section 8.06(c) of the Merger Agreement, Full Alliance and MSPEA shall be responsible for the following percentages of the Company’s fees and out-of-pocket expenses incurred in connection with the Merger up to an aggregate maximum of $3,000,000: 52.21% for Full Alliance and 47.79% for MSPEA.

1.6 Paying Agent Agreement. Promptly following the date of this Agreement, the Investors shall in good faith and with mutual cooperation use their reasonable best efforts to (i) select the Paying Agent, and (ii) negotiate and, to the extent applicable, enter into an agreement with the Paying Agent in form and substance reasonably satisfactory to each Investor (the “Paying Agent Agreement”). The Paying Agent Agreement, to which the Paying Agent, Lead Rich and Full Alliance and/or Parent shall be parties, shall provide for the appointment of the Paying Agent and the terms and conditions upon which the Exchange Fund will be held, distributed or returned by the Paying Agent, including that any funds deposited into the Exchange Fund by Lead Rich in respect of the Sponsor Equity Financing and the Mezzanine Debt Financing shall be immediately returned by the Paying Agent to Lead Rich if (A) $12,000,000 in respect of the CEO Equity Financing and $214,000,000 in respect of the Senior Debt Financing are not deposited into the Exchange Fund, or (B) the Effective Time does not occur, in either case within five business days of such deposit by Lead Rich.

1.7 Limited Guarantee. Each of Mr. Wu and MSPEA acknowledges and agrees that if (i)(A) $35,000,000 in respect of the Mezzanine Debt Financing and $15,000,000 in respect of the Sponsor Equity Financing are deposited into the Exchange Fund in accordance with the Merger Agreement, or (B) the Escrow Release Condition set forth in clause (ii) of Section 1.4 has not been satisfied, and (ii) the Parent Termination Fee shall become payable pursuant to the Merger Agreement, then each of Mr. Wu and MSPEA shall have no recourse against Lead Rich with respect to the Parent Termination Fee or the Guaranteed Obligations (as defined in the Limited Guarantee). Lead Rich acknowledges and agrees that in the event the Parent Termination Fee shall become payable pursuant to the Merger Agreement under any

circumstance other than those set forth in the preceding sentence, Lead Rich shall indemnify Mr. Wu and MSPEA for an aggregate of 8.86% of the Guaranteed Obligations, such that the total liability of Mr. Wu and MSPEA with respect to the Guaranteed Obligations shall be equal to 47.58% and 43.56% of the Guaranteed Obligations respectively; provided, that Lead Rich shall have no obligation with respect to the payment of the Company’s fees and out-of-pocket expenses contemplated in Section 1.5(f).

1.8 Subscription Agreements; Shareholders Agreement; Memorandum and Articles of Association. Promptly following the date of this Agreement, the Investors shall in good faith and with mutual cooperation use their reasonable best efforts to: (i) negotiate and, to the extent applicable, enter into subscription agreements between Full Alliance and each of Mr. Wu and Lead Rich in form and substance reasonably satisfactory to each party thereto (each, a “Subscription Agreement”), effective as of the Effective Time and providing for the terms and conditions upon which Mr. Wu or Lead Rich, as applicable, will subscribe at the Effective Time for preferred shares of Full Alliance for an aggregate cash purchase price equal to his or its Equity Contribution; (ii) negotiate and enter into a shareholders agreement in form and substance reasonably satisfactory to each Investor (the “Shareholders Agreement”), effective as of the Effective Time and providing for certain rights, duties and obligations of Full Alliance and its shareholders, including that Full Alliance shall pay (or reimburse) the fees and expenses of the Investors (including legal fees and expenses) incurred in connection with the Merger; and (iii) negotiate the amended and restated memorandum and articles of association of Full Alliance in form and substance reasonably satisfactory to each Investor (the “M&A”) and cause the M&A to be filed with the Registry of Corporate Affairs of the British Virgin Islands and to be effective as of the Effective Time.

1.9 Consent to Amendment. In accordance with Section 1.2 of this Agreement, each Investor hereby consents to Full Alliance, Parent and Merger Sub entering into Amendment No. 1 with the Company.

2.	REPRESENTATIONS AND WARRANTIES.

2.1 Investor Representations. Each Investor hereby further represents and warrants to the other Investors that: (i) if such Investor is a corporate entity, it has the requisite power and authority to execute, deliver and perform this Agreement, (ii) if such Investor is a corporate entity, the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary action on the part of such Investor and no additional proceedings are necessary to approve this Agreement, (iii) this Agreement has been duly executed and delivered by such Investor and constitutes a valid and binding agreement of him, her or it enforceable in accordance with the terms hereof, and (iv) such Investor’s execution, delivery and performance of this Agreement will not violate: (a) if such Investor is a corporate entity, any provision of its organizational documents; (b) any material agreement to which such Investor is a party or by which such Investor is bound; or (c) any order, writ, injunction, decree or statute, or any rule or regulation, applicable to such Investor.

3.	MISCELLANEOUS.

3.1 Effectiveness; Termination. This Agreement shall become effective on the date hereof and shall terminate (except with respect to this Section 3) upon the earlier of (i) the Effective Time of the Merger and (ii) the termination of the Merger Agreement in accordance with its terms; provided, that any liability pursuant to Section 1.5 or for failure to comply with the terms of this Agreement shall survive such termination and upon termination of the Merger Agreement in accordance with its terms Lead Rich and MSPEA shall immediately provide the Termination Notice to the Escrow Agent as contemplated by Section 1.4 of this Agreement.

3.2 Amendment. This Agreement may be amended or modified and the provisions hereof may be waived only by an agreement in writing signed by each Investor.

3.3 Severability. In the event that any provision hereof would, under applicable law, be invalid or unenforceable in any respect, such provision shall be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law. The provisions hereof are severable, and in the event any provision hereof should be held invalid or unenforceable in any respect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.

3.4 Indemnity. Each Investor (an “Indemnifying Investor”) hereby agrees to indemnify and hold harmless the other Investors (each, an “Indemnified Investor”) from and against all damages sustained or suffered by any such Indemnified Investor, resulting from any failure by such Indemnifying Investor to perform its obligations, or any failure of his, her or its representations and warranties to be true and accurate, under this Agreement.

3.5 Remedies. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy. No failure or delay on the part of any party hereto in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached or threatened to be breached. It is accordingly agreed that each party shall be entitled to seek an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions hereof in any federal court located in the Borough of Manhattan, in the City of New York or the New York Supreme Court Commercial Division in and for New York County, New York, this being in addition to any other remedy to which such party is entitled at Law or in equity. Each party hereby waives (i) any defense in any action for specific performance that a remedy at Law would be adequate, and (ii) any requirement under any Law to post security as a

prerequisite to obtaining equitable relief to which they are entitled at law or in equity, without the requirement to post bond or other security.

3.6 No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, and notwithstanding the fact that certain of the Investors may be partnerships or limited liability companies, each Investor covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any current or future director, officer, employee, general or limited partner or member or manager of any Investor or of any partner, member, manager or affiliate thereof, as such, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any current or future director, officer, employee, general or limited partner or member or manager of any Investor or of any partner, member, manager or affiliate thereof, as such, for any obligation of any Investor under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.

3.7 Governing Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed in and to be performed in that State. All actions arising out of or relating to this Agreement shall be brought and determined in any federal court located in the Borough of Manhattan, in the City of New York or the New York Supreme Court Commercial Division in and for New York County, New York. The parties hereto hereby (a) submit to the jurisdiction of the above-named courts for the purpose of any action arising out of or relating to this Agreement brought by any party hereto, and (b) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the action is brought in an inconvenient forum, that the venue of the action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any of the above-named courts.

3.8 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

3.9 Assignment. This Agreement may not be assigned by any party or by operation of law or otherwise without the prior written consent of each of the other parties, except that the Agreement may be assigned to an Affiliate of a party hereto; provided, that the party making such assignment shall not be released from its obligations hereunder. Any attempted assignment in violation of this Section 3.9 shall be void.

3.10 Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

3.11 References. Notwithstanding anything to the contrary contained herein, references to “the date hereof” and “the date of this Agreement” shall refer to September 23, 2013.

[Signature pages follow]

IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.

	ZISHEN WU

	By:	/s/ Zishen Wu

	XINGMEI ZHONG

	By:	/s/ Xingmei Zhong

	FULL ALLIANCE INTERNATIONAL LIMITED

	By:	/s/ Xingmei Zhong
	Name: Xingmei Zhong
	Title: Director

[Signature Page to First Amended and Restated Interim Investors Agreement]

	MSPEA AGRICULTURE HOLDING LIMITED

	By:	/s/ Samantha Jennifer Cooper
	Name: Samantha Jennifer Cooper
	Title: Director

[Signature Page to First Amended and Restated Interim Investors Agreement]

	LEAD RICH INTERNATIONAL LIMITED

	By:	/s/ Peng Liu
	Name: Peng Liu
	Title: Director

[Signature Page to First Amended and Restated Interim Investors Agreement]