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CONTINUOUS OFFERING PROGRAM AGREEMENT

CONTINUOUS OFFERING PROGRAM AGREEMENT

 

 

 

 

 

November 29, 2010

 

 

 

 

Rodman & Renshaw, LLC

 

 

1251 Avenue of the Americas, 20 th Floor

 

 

New York, NY 10020

 

 

 

 

Ladies and Gentlemen:

 

 

 

 

Origin Agritech Limited, a company organized under the laws of the British Virgin Islands (the “Company”), confirms its agreement (this “ Agreement ”) with Rodman & Renshaw, LLC (the “ Manager ”) as follows:

 

 

 

 

1.            Description of Shares . The Company has issued and proposes to sell through or to the Manager, as sales agent and/or principal, up to 2,000,000 (the “ Shares ”) of the Company’s ordinary shares, no par value (“ Ordinary Shares ”) from time to time during the term of this Agreement and on the terms set forth in Section 3 of this Agreement.  For purposes of selling the Shares through the Manager, the Company hereby appoints the Manager as exclusive agent of the Company for the purpose of soliciting purchases of the Shares from the Company pursuant to this Agreement and the Manager agrees to use its reasonable efforts to solicit purchases of the Shares on the terms and subject to the conditions stated herein. The Company agrees that whenever it determines to sell the Shares directly to the Manager as principal, it will enter into a separate agreement (each, a “ Terms Agreement ”) in substantially the form of Annex I hereto, relating to such sale in accordance with Section 3 of this Agreement. Certain terms used herein are defined in Section 18 hereof.

 

 

 

 

2.            Representations and Warranties .  The Company represents and warrants to, and agrees with, the Manager at the Execution Time and on each such time the following representations and warranties are repeated or deemed to be made pursuant to this Agreement, as set forth below.

 

 

 

 

509286.5   Rodman & Renshaw, LLC o 1251 Avenue of the Americas, 20 th Floor, New York, NY 10020

 

 

Tel: 212 356 0500 o Fax: 212 581 5690 o www.rodm.com o Member: FINRA, SIPC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)           The Company meets the requirements for use of Form F-3 under the Act and has prepared and filed with the Commission a shelf registration statement, as defined in Rule 405 (File Number 333-166236) on Form F-3, including a related Base Prospectus (the “ Base Prospectus ”), for registration under the Act of the offering and sale of the Shares. The above referenced registration statement was declared effective on June 11, 2010.  Any amendments to the Registration Statement filed prior to the Execution Time became effective upon the effectiveness of the Registration Statement.  Any amendments to the Registration Statement filed prior to any such time this representation is repeated or deemed to be made, became effective upon filing. As filed, the Prospectus contains all information required by the Act and the rules thereunder, and, except to the extent the Manager shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Manager prior to the Execution Time or prior to any such time this representation is repeated or deemed to be made. The Registration Statement, at the Execution Time, each such time this representation is repeated or deemed to be made, and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172, 173 or any similar rule) in connection with any offer or sale of Shares, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was not earlier than the date three years before the Execution Time. Any reference herein to the Registration Statement, the Base Prospectus, any Interim Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Interim Prospectus Supplement or the Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Interim Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Interim Prospectus Supplement or the Prospectus, as the case may be, deemed to be incorporated therein by reference.

 

 

 

 

(b)          To the extent that the Registration Statement is not available for the sales of the Shares as contemplated by this Agreement, the Company shall file a new registration statement complying with Rule 462(b) with respect to any additional Ordinary Shares necessary to complete such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable. After the effectiveness of any such registration statement, all references to “Registration Statement” included in this Agreement shall be deemed to include such new registration statement, including all documents incorporated by reference therein pursuant to Item 6 of Form F-3, and all references to “Base Prospectus” included in this Agreement shall be deemed to include the final form of prospectus, including all documents incorporated therein by reference, included in any such registration statement at the time such registration statement became effective.

 

 

 

 

 

 

 

 

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(c)          On each Effective Date, at the Execution Time, at each Applicable Time, at each Settlement Date and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172, 173 or any similar rule) in connection with any offer or sale of Shares, the Registration Statement complied and will comply in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder and did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(b), at the Execution Time, at each Applicable Time, on each Settlement Date and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172, 173 or any similar rule) in connection with any offer or sale of Shares, the Prospectus (together with any supplement thereto) complied and will comply in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder and did not and will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , however , that the Company makes no representations or warranties as to the information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by the Manager specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto).

 

 

 

 

(d)          At the Execution Time, at each Applicable Time and at each Settlement Date, the Disclosure Package does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by the Manager specifically for use therein.

 

 

 

 

(e)           (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution Time and on each such time this representation is repeated or deemed to be made (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.

 

 

 

 

(f)           No Issuer Free Writing Prospectus includes any information the substance of which conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and no Issuer Free Writing Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by the Manager specifically for use therein.

 

 

 

 

(g)          The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A of the Act in connection with the offering of the Shares.

 

 

 

 

 

 

 

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(h)          The Company has not entered into any other sales agency agreements or other similar arrangements with any agent or any other representative in respect of at the market offerings of the Shares in accordance with Rule 415(a)(4) of the Act.

 

 

 

 

(i)           The Company has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.

 

 

 

 

(j)           There is no broker, finder or other party that is entitled to receive from the Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement other than the Manager.

 

 

 

 

(k)           The consolidated financial statements incorporated by reference in the Disclosure Package and the Prospectus and any amendments thereof or supplements thereto present fairly in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates indicated and the consolidated results of their operations and cash flows for the periods specified and have been prepared in conformity with generally accepted accounting principles (“ GAAP ”) applied on a consistent basis during the periods involved, except as indicated therein, and the supporting schedules incorporated by reference in the Disclosure Package and the Prospectus present fairly the information required to be stated therein.

 

 

 

 

(l)           The Company has been duly incorporated and is validly existing as a company in good standing under the laws of the British Virgin Islands with power and authority (corporate and other) to own its properties and conduct its business as it is now being conducted except where the failure to have such power or authority would not individually or in the aggregate have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its Significant Subsidiaries (as defined in Regulation S-X under the Securities Act), taken as a whole, whether or not arising from transactions in the ordinary course of business (a “ Material Adverse Effect ”).

 

 

 

 

(m)          The execution and delivery by the Company of this Agreement, the consummation by the Company of the transactions herein contemplated and the compliance by the Company with the terms hereof do not and will not conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under, the Memorandum and Articles of Association, as amended, of the Company or the constituent documents, as amended, of any of its Significant Subsidiaries or any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or by which any of the property or assets of the Company or any of its Significant Subsidiaries is subject (except for such conflicts, breaches, violations and defaults as would not have a Material Adverse Effect and would not materially adversely affect the consummation by the Company of the transactions herein contemplated and the compliance by the Company with the terms hereof), nor will such action result in any material violation of the provisions of the Memorandum and Articles of Association of the Company, or any statute or any order, rule or regulation of any court or governmental agency or body, having jurisdiction over the Company or any of its Significant Subsidiaries or any of their respective significant properties; and except as disclosed in the Disclosure Package and the Prospectus, no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the performance by the Company of this Agreement or the consummation by the Company of the transactions contemplated by this Agreement, except such as are required under the Blue Sky or securities laws of the various states.

 

 

 

 

 

 

 

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(n)          This Agreement has been duly authorized by the board of directors of the Company. This Agreement has been duly executed and delivered by the Company.

 

 

 

 

(o)          BDO Limited, who reported on the annual consolidated financial statements of the Company incorporated by reference in the Disclosure Package and the Prospectus, to the knowledge of the Company were, at the time such reports were prepared, independent accountants as required by the Securities Act and the rules and regulations thereunder (the “ Securities Act Regulations ”).

 

 

 

 

(p)          Other than as set forth in the disclosure package delivered concurrently with this Agreement (the “ Disclosure Package ”) and the Prospectus Supplement to the Base Prospectus (the “ Prospectus ”), there are no legal or governmental proceedings pending to which the Company or any of its Significant Subsidiaries is a party or of which any material property of the Company or any of its Significant Subsidiaries is the subject which, in the reasonable judgment of the Company, individually or in the aggregate are likely to have a Material Adverse Effect; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.

 

 

 

 

(q)          The Company has the authorized capital stock as set forth in the Disclosure Package and the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares) have been duly and validly authorized and issued and are fully paid and non-assessable, but for the Shares are currently held in treasury.  All of the issued shares of capital stock or similar equity interests of each Significant Subsidiary  that is owned by the Company, its subsidiaries or certain consigning shareholders have been fully and validly authorized and issued, are fully paid and non-assessable and, except as disclosed in the Disclosure Package and the Prospectus, are owned directly or indirectly by the Company or are equity interests over which the Company and its subsidiaries have authority through certain agreements which are disclosed in the Disclosure Package and the Prospectus.

 

 

 

 

(r)           The Company is subject to Section 13 of the Exchange Act.

 

 

 

 

 

 

 

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(s)           Except as otherwise disclosed in the Disclosure Package and the Prospectus, no material labor problem or dispute with the employees of the Company or any of its subsidiaries, that could reasonably be expected to have a Material Adverse Effect, exists or, to the knowledge of the Company, is threatened.

 

 

 

 

(t)           Except as described in the Disclosure Package and the Prospectus the Company and each Significant Subsidiary possess all material licenses, certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except to the extent that the failure to possess such licenses, certificates, authorizations or permits would not have a Material Adverse Effect; and to the Company’s knowledge neither the Company nor any Significant Subsidiary has received any notice of proceedings relating to the revocation or modification of any such license, certificate, authorization or permit, with respect to which any unfavorable decision, ruling or finding would singly or in the aggregate, result in a Material Adverse Effect.

 

 

 

 

(u)          Except as otherwise disclosed in the Disclosure Package and the Prospectus, the Company and its Significant Subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health (to the extent related to exposure to hazardous or toxic substances or wastes, pollutants or contaminants), the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“ Environmental Laws ”); (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, result in a Material Adverse Effect.

 

 

 

 

(v)          The Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus, the Company will not be required to register as an “investment company”, within the meaning of the Investment Company Act of 1940, as amended (the “ 1940 Act ”).

 

 

 

 

(w)         Except as described in the Disclosure Package and Prospectus, the Company and each of its Significant Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness identified by management or by the Company’s auditors and communicated to Management in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

 

 

 

 

 

 

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(x)           Any statistical and market-related data included in the Disclosure Package and the Prospectus are based on or derived from sources that the Company believes to be generally reliable and accurate, and where required, the Company has obtained the written consent to the use of such data from such sources.

 

 

 

 

(y)          Neither the Company nor any of its Significant Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its Significant Subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “ FCPA ”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company, its Significant Subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

 

 

 

 

(z)           The operations of the Company and its Significant Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Money Laundering Laws ”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Significant Subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.

 

 

 

 

(aa)        Neither the Company nor any of its Significant Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its Significant Subsidiaries is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.

 

 

 

 

 

 

 

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(bb)        No holders of equity securities of the Company have rights to the registration of such equity securities under the Registration Statement.