THIRD AMENDMENT OF REGISTRATION RIGHTS AGREEMENT February 6, 2008
EXHIBIT
2.6
THIRD
AMENDMENT OF REGISTRATION RIGHTS AGREEMENT
February 6,
2008
Reference
is made to that certain Registration Rights Agreement (as amended, the
“Agreement”)
entered into as of July 25, 2007 by and among Origin Agritech Ltd., a British
Virgin Islands limited liability company (the “Company”),
State
Harvest Holdings Limited, a British Virgin Islands limited liability company
wholly-owned by the Company (the “Guarantor”)
and
Citadel Equity Fund Ltd. (the “Purchaser”).
All
capitalized terms used in this amendment (this “Amendment”)
but
not defined herein shall have the meanings assigned to such terms in the
Agreement.
THE
PARTIES ENTER THIS AGREEMENT
on the
basis of the following facts, understandings and intentions:
A.
Pursuant to the Section 11(a) of the Agreement, no provision of the Agreement
can be amended without the Company having obtained the written consent of
Majority Holders; and
B.
The
Company, the Guarantor and the Purchaser, being the sole Majority Holder, have
agreed to amend the Agreement on the terms and conditions set forth
herein.
NOW
THEREFORE, in accordance with Section 11(a) of the Agreement and in
consideration of the foregoing and the mutual agreements set forth herein,
and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company, the Guarantor and the Purchaser, intending
to be legally bound hereby, agree to the following:
| 1. |
Section
1 of the Agreement is hereby amended by:
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(a) deleting
the definition of “Registrable
Convertible Securities”
therein
and replacing such definition with the following:
“
“Registrable
Convertible Securities”
means
any Notes and the Guarantees until the earliest of (i) their effective
registration under the Securities Act and the resale of all such Notes and
Guarantees in accordance with the registration statement referred to in
Section 2(f), as amended or supplemented by any amendment or supplement,
including post-effective amendments, and all materials incorporated by reference
or explicitly deemed to be incorporated by reference in such registration
statement, (ii) the date on which such Notes and Guarantees are (A) sold
pursuant to Rule 144 under circumstances in which any legend borne by such
Notes
and Guarantees relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed or (B) freely Transferable without
restriction under Rule 144 or (iii) the date on which such Notes have been
converted (and the related Guarantees have been terminated) or otherwise cease
to be outstanding”;
1
(b) deleting
the definition of “Registrable
Securities”
therein
and replacing such definition with the following:
“
“Registrable
Securities”
means
any Shares issuable upon conversion of any Notes constituting Registrable
Convertible Securities, until the earliest of (i) their effective registration
under the Securities Act and the resale of all such Shares in accordance with
the Relevant Registration Statement, (ii) the date on which such Shares are
(A)
sold pursuant to Rule 144 under circumstances in which any legend borne by
such
Shares relating to restrictions on transferability thereof, under the Securities
Act or otherwise, is removed or (B) freely Transferable without restriction
under Rule 144 or (iii) the date on which such Shares cease to be
outstanding”;
(c) deleting
the definition of “Rule
144,”
“Rule
405”
and
“Rule
415”
therein
and replacing such definition with the following:
“
“Rule
144,”
“Rule
405”
and
“Rule
415”
mean,
in each case, such rule as promulgated under the Securities Act, or any
successor provision”; and
(d) adding
the definition of “Transferable”
therein
in alphabetical order as follows:
“
“Transferable”
means,
with respect to any security, able to be sold by a holder thereof who is not
an
affiliate of the issuer of such securities at the time of the sale, and has
not
been an affiliate during the preceding three months, for his or her own account;
provided,
however,
that
for the purposes of this definition, the determination of whether such holder
is
or was an affiliate of the issuer shall be made in accordance with
Rule 144”;
| 2. |
Section
2(a) of the Agreement is hereby amended and restated as
follows:
|
“The
Company and the Guarantor agree to file under the Securities Act as promptly
as
practicable but in any event within 234 days
(on
or before March 15, 2008) after the latter of (x) the Closing Date and (y)
the
date on which the Company becomes eligible to so file (the latter date
hereinafter being referred to as the “Eligibility
Date”),
a
shelf registration statement providing for the registration of, and the sale
on
a continuous or delayed basis by the Holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by
the
Commission. The Company and the Guarantor agree to use their reasonable efforts
to cause the Shelf Registration Statement to become effective within 294 days
after the Eligibility Date; provided, however, that the Company may, upon
written notice to all Holders, postpone having the Shelf Registration Statement
declared effective for a reasonable period not to exceed 15 consecutive days
per
postponement and provided that all such postponement periods total no more
than
30 days in the aggregate in any 365-day period if the Company possesses material
non-public information, the disclosure of which would have a material adverse
effect on the Company and its subsidiaries taken as a whole. The Company and
the
Guarantor shall use its reasonable efforts to keep such Shelf Registration
Statement continuously effective until the earlier of (x) the date that there
are no longer any Registrable Securities outstanding; (y) the expiration of
the
period referred to in Rule 144 of the Securities Act with respect to all
Registrable Securities held by Persons that are not affiliates (as determined
in
accordance with Rule 144) of the Company; and (z) two years from the date
(the “Effective
Date”)
such
Registration Statement is declared effective (the “Effective
Period”).
Without prejudice to any registration rights, existing as of the date hereof,
held by the Company’s securityholders or the Guarantors’ securityholders with
respect to the Company’s securities or the Guarantors’ securities, respectively,
none of the Company’s securityholders or the Guarantors’ securityholders (other
than Holders of Registrable Securities) shall have the right to include any
of
the Company’s securities or the Guarantors’ securities in the Shelf Registration
Statement.”
2
| 3. |
Clauses
(i) and (ii) of Section 2(d) of the Agreement are hereby amended and
restated as follows:
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“(i)
if
the
Shelf Registration Statement is not filed with the Commission within 234 days
following the Eligibility Date, then commencing on the 235th
day
after the Eligibility Date, Additional Interest shall accrue on the principal
amount of the outstanding Notes that are Registrable Convertible Securities
at a
rate of 2.25% per annum for the first 90 days following such 235th
day and
at a rate of 2.50% per annum thereafter; or
(ii)
if
the
Shelf Registration Statement is not declared effective and does not otherwise
become effective within 294 days following the Eligibility Date, then commencing
on the 295th
day
after the
Eligibility Date, Additional Interest shall accrue on the principal amount
of
the outstanding Notes that are Registrable Convertible Securities at a rate
of
2.25% per annum for the first 90 days following such 295th
day and
at a rate of 2.50% per annum thereafter; or.”
| 4. |
Section 9
of the Agreement is hereby amended and restated as
follows:
|
“9. Rule
144A and Rule 144.
(a) So
long
as any Registrable Securities remain outstanding, the Company shall use its
reasonable best efforts to file the reports required to be filed by it under
Rule 144A(d)(4) under the Securities Act and the Exchange Act in a timely manner
and, if at any time the Company is not required to file such reports, it will,
upon the written request of any Holder of Registrable Securities, make publicly
available other information so long as necessary to permit sales of such
Holder’s securities pursuant to Rules 144 and 144A. The Company and the
Guarantor covenant that they will take such further action as any Holder of
Registrable Securities may reasonably request, including with respect to the
Company’s transfer agent, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including, without limitation, the requirements of Rule 144A(d)(4)).
Upon
the written request of any Holder of Registrable Securities, the Company and
the
Guarantor shall deliver to such Holder a written statement as to whether it
has
complied with such requirements. Notwithstanding the foregoing, nothing in
this
Section 9 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
(b) Upon
the
written request of any Holder of Registrable Securities, and following the
receipt by the Company of any certificates, documents or opinions requested
by
the Company, which shall be satisfactory in form and substance to the Company
to
establish that such Holder is entitled to sell the securities identified in
the
Holder’s request pursuant to Rule 144, the Company shall cooperate with
such Holder to facilitate the timely preparation and delivery of certificates,
documents or opinions in connection with such sale as are required to represent
that such securities are free of any restrictive legends relating to
restrictions on transferability thereof under the Securities Act.”
3
| 5. |
Section 4(i)
of the Agreement is hereby amended and restated as
follows:
|
“Until
the expiration of six months after the Closing Date, the Company will not,
and
will not permit any of its “affiliates” (as defined in Rule 144) to, resell any
of the Securities that have been reacquired by any of them except pursuant
to an
effective registration statement under the Securities Act.”
| 6. |
The
Purchaser represents and warrants to the Company and the Guarantor
that
the Purchaser is the sole holder of (i) all Shares constituting
Registrable Securities and (ii) all of the
Notes.
|
| 7. |
Except
as expressly amended by this Amendment, the Agreement shall remain
in full
force and effect.
|
| 8. |
This
Amendment shall be effective from February 5,
2008.
|
| 9. |
This
Amendment shall be governed by and construed in accordance with the
laws
of the State of New York.
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| 10. |
This
Amendment may be executed in any number of counterparts (which may
be
delivered in original form or by telecopier) and by the parties hereto
in
separate counterparts, each of which when so executed shall be deemed
to
be an original and all of which taken together shall constitute one
and
the same agreement.
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[Signature
Page(s) to Follow]
4
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
written above.
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| By: | ||
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Name: Xxx
Xxxxxxxx
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Title:
Director
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STATE
HARVEST HOLDINGS LIMITED
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| By: | ||
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Name: Xxx
Xxxxxxxx
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Title:
Director
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CITADEL
EQUITY FUND LTD.
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By: | Citadel
Limited Partnership, its Portfolio
Manager
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| By: | ||
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Name:
Title: Authorized
Signatory
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