As filed
with the Securities and Exchange Commission on April 27, 2010
Registration
No. 333-166236
UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM
F-3
Amendment No. 1
REGISTRATION STATEMENT UNDER
SECURITIES ACT OF 1933
ORIGIN ARGITECH
LIMITED
(Exact
name of registrant as specified in its charter)
British Virgin
Islands
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Not
Applicable
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(State
or other jurisdiction of
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(I.R.S. Employer
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incorporation
or organization)
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Identification
No.)
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No.
21 Sheng Ming Yuan Road
Changping
District, Beijing
China 102206
(Address,
including zip code, and telephone number, including
area
code, of Registrant’s principal executive offices)
CT
Corporation System
111
Eighth Avenue
New
York, NY 10011
(212)
894-8940
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copy
to:
Andrew
D. Hudders, Esq.
Golenbock
Eiseman Assor Bell & Peskoe LLP
437
Madison Avenue
New
York, New York 10022
(212) 907-7300
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date
of this registration statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. þ
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
Form is a registration statement pursuant to general Instruction I.C. or a
post-effective amendment thereto that shall become effective upon filing with
the commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.C. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
CALCULATION OF REGISTRATION
FEE
Title of each class of
securities to be registered (1)
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Amount to be
Registered
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Proposed Maximum
Aggregate Price
Per Unit (2)
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Proposed Maximum
Aggregate Offering
Price (3)
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Amount of
Registration Fee
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Ordinary
Shares, no par value
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(1 |
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Warrants
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(1 |
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Preferred
Shares
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(1 |
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Debt
Securities
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(1 |
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Units
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(1 |
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Total
Previously Paid
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$ |
150,000,000 |
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$ |
10,695.00 |
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(1)
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There
are being registered hereunder such indeterminate number of ordinary
shares, such indeterminate number of warrants to purchase ordinary shares,
such indeterminate number of shares of preferred shares, such
indeterminate number of units, and such indeterminate principal amount of
debt securities as shall have an aggregate initial offering price not to
exceed $150,000,000. If any debt securities are issued at an original
issue discount, then the offering price of such debt securities shall be
in such greater principal amount at maturity as shall result in an
aggregate offering price not to exceed $150,000,000, less the aggregate
dollar amount of all securities previously issued hereunder. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder. The securities registered also
include such indeterminate number of ordinary shares and amount of debt
securities as may be issued upon the conversion of or exchange for debt
securities that provide for conversion or exchange, upon the exercise of
warrants or pursuant to the anti-dilution provisions of any such
securities. In addition, pursuant to Rule 416 under the Securities
Act of 1933, as amended (the “Securities Act”), the securities being
registered hereunder include such indeterminate number of ordinary shares
as may be issuable with respect to the shares being registered hereunder
as a result of stock splits, stock dividends or similar anti-dilutive
transactions.
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(2)
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The
proposed maximum aggregate price per class of security will be determined
from time to time by the Registrant in connection with the issuance by the
Registrant of securities registered hereunder and is not specified as to
each class of security pursuant to General II.C. of Form F-3 under the
Securities Act.
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(3)
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Estimated
solely for purposes of calculating the registration fee pursuant to Rule
457(o) under the Securities Act.
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The Registrant hereby amends this
registration statement on such date or dates as may be necessary to delay its
effective date until the Registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act or until
the registration statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said Section 8(a), may
determine.
Explanatory
Note
This amendment No. 1 to Registration
Statement 333-166236, on Form F-3, filed by Origin Agritech Limited, is being
filed to insert as Exhibit 23.2 the correct Form F-3 consent of independent
registered public accounting firm, dated April 19, 2010, and remove the consent
of the independent registered public accounting firm of the same date referring
to the Form S-8 of the Company which was filed on the same date, and inserted
into the Form F-3 by mistake.
PART
II
INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 8. Indemnification of
Directors and Officers
British Virgin Islands law does not
limit the extent to which a company’s articles of association may provide for
indemnification of officers and directors, except to the extent any such
provision may be held by the British Virgin Islands courts to be contrary to
public policy, such as to provide indemnification against civil fraud or the
consequences of committing a crime.
Under our Memorandum and Articles of
Association, we may indemnify our directors, officers, liquidators and agents
against expenses (including legal fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such persons in connection with
legal, administrative or investigative proceedings to which they are a party or
are threatened to be made a party by reason of their acting as our directors,
officers, liquidators or agents. To be entitled to indemnification, these
persons must have acted honestly and in good faith and in the best interest of
our company, and, in the case of criminal proceedings, they must have had no
reasonable cause to believe their conduct was unlawful.
Item 9.
Exhibits
Exhibit No.
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Description
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1.1
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Form
of Underwriting Agreement*
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3.1
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Memorandum
and Articles of Association of Origin Agritech Limited1
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3.2
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Amendment
to Memorandum and Articles of Association of Origin Agritech Limited to
reflect the terms of Preferred Shares*
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4.1
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Form
of Warrant*
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4.2
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Form
of Indenture*
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4.3
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Form
of Unit Agreement*
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5.1
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Opinion
of Maples and Calder***
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12.1
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Statements
Re: Computation of Ratio of Earnings to Fixed
Charges***
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23.1
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Consent
of Maples and Calder (included in Exhibit 5.1)***
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23.2
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Consent
of BDO Limited**
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24.1
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Power
of Attorney (included as part of the signature page of this Registration
Statement)***
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*
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To
be filed, if necessary, subsequent to the effectiveness of this
registration statement by an amendment to this registration statement or
incorporated by reference pursuant to a report on Form 6-K in connection
with the offering of securities.
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***
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Previously
filed herewith.
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1
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Incorporated
by reference to Exhibit 1.1 of our Annual Report 20-F (File No. 000-51576
) filed with the Securities and Exchange Commission on July 14,
2006.
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Item 10.
Undertakings
(a) The
undersigned Registrant hereby undertakes:
(1) To file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration
statement; and
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement;
provided, however, that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2) That, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from
registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(4) To file a post effective
amendment to the registration statement to include any financial statements
required by Item 8.A. of Form 20-F at the start of any delayed offering or
throughout a continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act of 1933 need not be
furnished, provided that the Registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, a post-effective amendment
need not be
filed to
include financial statements and information required by Section 10(a)(3) of the
Securities Act of 1933 or Rule 3-19 of Regulation S-X if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(5) That, for the purpose of
determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each prospectus filed by
the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(ii) Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or
the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating to the
securities in the registration statement to which that prospectus relates, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(6) That, for the purpose of
determining liability of the registrant under the Securities Act of 1933 to any
purchaser in the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) any preliminary prospectus or
prospectus of the undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned
registrant or used or referred to by the undersigned Registrant;
(iii) the portion of any other
free writing prospectus relating to the offering containing material information
about the undersigned registrant or its securities provided by or on behalf of
the undersigned Registrant; and
(iv) any other communication that
is an offer in the offering made by the undersigned Registrant to the
purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such
issue.
(d) The undersigned
registrant hereby undertakes:
(1) For purposes of
determining any liability under the Securities Act, the information omitted from
the form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act will be deemed to be part of this registration statement as of
the time it was declared effective.
(2) For the purpose of
determining any liability under the Securities Act, each post-effective
amendment that contains a form of prospectus will be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time will be deemed to be the initial bona
fide offering thereof.
(e) The
undersigned registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture
Act.
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies it has reasonable grounds to
believe that it meets all of the requirements for filing on Form F-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Beijing, the People’s Republic of
China on April 26, 2010.
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ORIGIN
AGRITECH LIMITED.
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By:
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/s/ Liang Yuan
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Liang
Yuan
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Chief
Executive Officer
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POWER OF ATTORNEY
Pursuant to the requirements of the
Securities Act of 1933, this registration statement has been signed by the
following persons in the capacities and on the date indicated.
Signature
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Title
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Date
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/s/ Liang Yuan
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President,
Chief Executive Officer and
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April
26, 2010
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Liang
Yuan
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Director
(Principal Executive Officer)
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/s/ Irving Kau
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Acting
Chief Financial Officer (Principal
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April
26, 2010
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Irving
Kau
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Financial
Officer and Authorized
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Representative
in the United States)
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/s/ *
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Chairman
of the Board
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April
26, 2010
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Gengchen
Han
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/s/ *
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Vice
Chairman of the Board
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April
26, 2010
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Yasheng
Yang
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/s/ *
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Director
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April
26, 2010
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Bailiang
Zhang
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/s/ *
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Director
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April
26, 2010
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James
Kang
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/s/ *
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Director
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April
26, 2010
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Min
Tang
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/s/ *
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Director
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April
26, 2010
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Yingqi
Xia
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/s/ *
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Director
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April
26, 2010
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Michael
W. Trimble
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/s/ *
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Director
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April
26, 2010
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Remo
Richli
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*
Executed by Power of Attorney filed Exhibit 24.1
By:
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/S/ Liang Yuan
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Liang
Yuan,
Attorney-in-Fact
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Index
to Exhibits
Exhibit No.
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Description
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1.1
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Form
of Underwriting Agreement*
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3.1
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Memorandum
and Articles of Association of Origin Agritech Limited1
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3.2
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Amendment
to Memorandum and Articles of Association of Origin Agritech Limited to
reflect the terms of Preferred Shares*
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4.1
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Form
of Warrant*
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4.2
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Form
of Indenture*
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4.3
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Form
of Unit Agreement*
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5.1
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Opinion
of Maples and Calder***
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12.1
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Statements
Re: Computation of Ratio of Earnings to Fixed
Charges***
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23.1
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Consent
of Maples and Calder (included in Exhibit 5.1)***
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23.2
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Consent
of BDO Limited**
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24.1
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Power
of Attorney (included as part of the signature page of this Registration
Statement)***
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*
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To
be filed, if necessary, subsequent to the effectiveness of this
registration statement by an amendment to this registration statement or
incorporated by reference pursuant to a report on Form 6-K in connection
with the offering of securities.
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***
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Previously
filed herewith.
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1
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Incorporated
by reference to Exhibit 1.1 of our Annual Report 20-F (File No. 000-51576
) filed with the Securities and Exchange Commission on July 14,
2006.
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