Unassociated Document


    Exhibit 10.10

     

    ADDENDUM TO MASTER
SEPARATION AGREEMENT

     

    This
Addendum is made this ___ day of January 2011, by and among AgFeed
Industries, Inc., a British Virgin Islands business company (“AgFeed”),
AgFeed Animal Nutrition Inc., a British Virgin Islands business company and
wholly-owned subsidiary of AgFeed (“AANI”), and AgFeed Animal Nutrition
Holdings, Inc., a British Virgin Islands business company and wholly-owned
subsidiary of AgFeed (“Holdings”).  Capitalized terms used but not
defined in this Amendment shall have the respective meanings ascribed to them in
the Separation Agreement (defined herein).

     

    Background

     

    WHEREAS,
AgFeed and AANI are parties to a Master Separation Agreement, dated as of
July 19, 2010, as amended (the “Separation
Agreement”), pursuant to which, among other things, AgFeed undertook an
internal reorganization to separate AgFeed’s animal nutrition business from its
other businesses;

     

    WHEREAS,
the Separation Agreement documented the intent of the parties to transfer
certain Real Property Interests, as defined in Section 2.01(a) of the Separation
Agreement, held by the AgFeed Group into the AANI Group.  Section
2.01(a)(iii) of the Separation Agreement states that “each of AgFeed and AANI
hereby agrees to consummate the following transactions, effective as of the
Separation Date...all rights (the "Real Property Interests") in
the real properties listed on Schedule 2.01(a)(iii)
and the plants, buildings and structures thereon (collectively, the "Real Properties"), which shall
be transferred from the AgFeed Group to the AANI Group in the manner set forth
in the Plan for Transfer of Real Property Interests set forth in Schedule 2.0l(a)(iii)
(the "Real Property
Transfer")”;

     

    WHEREAS,
the Plan for Transfer of Real Property Interests describes the steps to be taken
as follows:

     

    The Real
Property Interests shall be transferred from the AgFeed Group to the AANI Group
in the following steps after the Separation Date:

     

    For
Parcel One: A member of the AANI Group will enter into a new lease with the
current landlord for these premises.

     

    For
Parcel Two and Parcel Three:

     

    Step #1:
On the Separation Date, (a) Guangxi Huijie will enter into a sublease agreement
with a member of the AANI Group related to Parcel Two, and (b) Nanchang Best
will enter into a sublease agreement with a member of the AANI Group related to
Parcel Three. Simultaneously, (x) Guangxi Huijie will enter into a real property
transfer agreement with a member of the AANI Group related to Parcel Two, and
(y) Nanchang Best will enter into a real property transfer agreement with a
member of the AANI Group related to Parcel Three. Each real property transfer
agreement will require certain Government Approvals related to such transfer
prior to consummation.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    Step #2:
Prior to the consummation of the IPO, the mortgages on Parcel One and Parcel Two
will be removed.

     

    Step #3:
Once the mortgage is removed, the AgFeed Group and the AANI Group will use their
respective commercially reasonable efforts to obtain the required Governmental
Approvals to effect the transfers contemplated by the real property transfer
agreements.

     

    Step #4:
Upon receipt of the respective Governmental Approvals, (a) the sublease
agreement between Guangxi Huijie and a member of the AANI Group related to
Parcel Two will terminate pursuant to its terms, and (b) the sublease agreement
between Nanchang Best and a member of the AANI Group related to Parcel Three
will terminate pursuant to its terms.

     

    For
Parcel Four and Parcel Five: The member of the AANI Group will acquire use of
such premises pursuant to the transfer of the Shandong Feed Shares and HopeJia
Shares to the AANI Group.

     

    WHEREAS,
the Separation Agreement expressed both the AgFeed Group’s intent to effectuate
the transfer of the Real Property Interests to the AANI Group and its
acknowledgement that the timing of the ultimate transfer was subject to the
completion of a number of steps, some of which were outside of the control of
either the AgFeed Group or AANI Group.  Section 2.03(a) of the
Separation Agreement reflects the parties’ commitment to execute the transfer,
stating that “The parties shall cooperate with each other ... and use reasonable
efforts to obtain any ... required Governmental Approvals and
Consents.”  In addition, Sections 2.02 and Section 2.03(b) of the
Separation Agreement document the parties’ acknowledgement that the transfers
may be delayed due to either lack of Governmental Approvals or Third Party
restrictions.  In this case the parties agree that the intended
transferor shall work with the intended transferee to ensure that the transferee
is able to utilize the assets as if they had been transferred and that if “the
consummation of any transaction contemplated hereunder requires any Governmental
Approval or Consent that is not obtained, then the consummation of such
transaction shall be automatically deferred until such time as all required
Governmental Approvals and Consents... are obtained”;

     

    WHEREAS,
the AgFeed Group is currently in the process of clearing the mortgages in place
on Parcel Two and Parcel Three (the “Mortgaged
Properties”) and intends to pursue the required Governmental approvals
authorizing the transfer of the Mortgaged Properties to Shandong Feed and/or a
Subsidiary of Shandong Feed;

     

    
      
         

      

      
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    WHEREAS,
both the AgFeed Group and AANI Group now believe it is likely that legal title
for the Mortgaged Properties will not be transferred to Shandong Feed and/or a
Subsidiary of Shandong Feed until after AANI is contributed to Holdings by the
AgFeed; and

     

    WHEREAS,
each of the Mortgaged Properties, AANI and Holdings are directly or indirectly
owned by AgFeed.  Accordingly Holdings does not intend to issue
additional shares to AgFeed as a result of the contributions of the Mortgaged
Properties and AANI to Holdings.

     

    NOW,
THEREFORE, the parties hereto, for good and valuable consideration and intending
to be legally bound hereby agree as follows:

     

    1. The
Background provisions specified above are made a part hereof, the same as if
incorporated herein in their entirety.

     

    2. For
purposes of the United States Internal Revenue Code of 1986, as amended
(the “Code”),, the transfer
of AANI and the transfer of the Mortgaged Properties are each intended to
represent transfers to a corporation controlled by the transferor, AgFeed,
pursuant to Section 351 of the Code.

     

    3. Each of
the parties to this agreement agrees that Holdings will have the right to
receive the Mortgaged Properties that the AgFeed Group has agreed to
transfer.  However, Holdings will direct the AgFeed Group to transfer
the Mortgaged Properties directly to Shandong Feed and/or a Subsidiary of
Shandong Feed in order to comply with local Chinese legal requirements that
prohibit foreign entities from the Mortgaged Properties.  The
Mortgaged Properties are operating assets of the Business, which will be
operated by Holdings through Shandong Feed and Subsidiaries of Shandong Feed
going forward.

     

    4. This
Addendum may be executed in any number of separate counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
will together constitute the same agreement.  Executed signature pages
to this Addendum  may be delivered by facsimile and such facsimiles
will be deemed sufficient as if actual signature pages had been
delivered.

     

    5. Except as
amended herein, the terms and conditions of the Separation Agreement shall
remain in full force and effect provided, however, in the event of any
discrepancy between the terms of this Addendum and the terms of the Separation
Agreement, the terms of this Addendum shall control and be binding upon the
parties.

     

     

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    IN
WITNESS WHEREOF, the parties hereto have duly caused this Addendum to be
executed as of the date first written above.

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	 
      	
                                    AGFEED
      INDUSTRIES, INC.

                                  
	 
      	
                                    a
      British Virgin Islands business company

                                  
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                                    By:

                                  	 
        
	 
      	 
      	
                                    Name:

                                  
	 
      	 
      	
                                    Title:

                                  
	 
      	 
      	 
      
	 
      	
                                    AGFEED
      ANIMAL NUTRITION INC.

                                  
	 
      	
                                    a
      British Virgin Islands business company

                                  
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                                    By:

                                  	 
        
	 
      	 
      	
                                    Name:

                                  
	 
      	 
      	
                                    Title:

                                  
	 
      	 
      	 
      
	 
      	
                                    AGFEED
      ANIMAL NUTRITION HOLDINGS, INC.

                                  
	 
      	
                                    a
      British Virgin Islands business company

                                  
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                                    By:

                                  	  
        
	 
      	 
      	
                                    Name:

                                  
	 
      	 
      	
                                    Title:

                                  


                          

                        

                      

                    

                  

                

              

            

          

        

      


      
        
           


        

        
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