SECOND AMENDMENT OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT
2.5
SECOND
AMENDMENT OF REGISTRATION RIGHTS AGREEMENT
December
21, 2007
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:
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1.
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Section
1 of the Agreement is hereby amended
by:
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(a) deleting
the definition of “Majority
Holders”
therein
and replacing such definition with the following:
“
“Majority
Holders”
shall
mean, on any date, holders of the majority of the Shares constituting
Registrable Securities; for the purposes of this definition, Holders of Notes
constituting Registrable Convertible Securities shall be deemed to be the
Holders of the number of Shares into which such Notes are or would be
convertible as of such date.”;
(b) adding
the definition of “Notes
Eligibility Date”
therein
in alphabetical order as follows:
“
“Notes
Eligibility Date”
has
the
meaning assigned thereto in Section 2(f).”;
(c) adding
the definition of “Notes
Registration Amendment”
therein
in alphabetical order as follows:
“
“Notes
Registration Amendment”
has
the
meaning assigned thereto in Section 2(f).”;
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(d) adding
the definition of “Registrable
Convertible Securities”
therein
in alphabetical order as follows:
“
“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(k) or (iii) the date on which such Notes have been
converted (and the related Guarantees have been terminated) or otherwise cease
to be outstanding.”;
(e) adding
the definition of “Registrable
Convertible Securities Notice”
therein
in alphabetical order as follows:
“
“Registrable
Convertible Securities Notice”
has
the
meaning assigned thereto in Section 2(f).”; and
(f) 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(k) or (iii) the date on which such Shares cease to be
outstanding.”
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2.
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Section
2(a) of the Agreement is hereby amended and restated as
follows:
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“The
Company and the Guarantor agree to file under the Securities Act as promptly
as
practicable but in any event within 195 days
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 285 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 30 consecutive days
per
postponement and provided that all such postponement periods total no more
than
60 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(k) of the Securities Act with respect to all
Registrable Securities held by Persons that are not Affiliates 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.”
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3.
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Section
2(d) of the Agreement is hereby amended and restated as follows:
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“If
any
of the following events (any such event a “Registration
Default”)
shall
occur, then additional interest (the “Additional
Interest”)
shall
become payable jointly and severally by the Company and the Guarantor to Holders
in respect of the Notes as follows:
(i)
if
the
Shelf Registration Statement is not filed with the Commission within 195 days
following the Eligibility Date, then commencing on the 196th 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
0.25% per annum for the first 90 days following such 196th day and at a rate
of
0.50% per annum thereafter; or
(ii)
if
the
Shelf Registration Statement is not declared effective and does not otherwise
become effective within 285 days following the Eligibility Date, then commencing
on the 286th 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
0.25% per annum for the first 90 days following such 286th day and at a rate
of
0.50% per annum thereafter; or
(iii) if
the Company and the Guarantor have failed to perform their obligations set
forth
in Section 2(c) hereof within the time periods required therein, then commencing
on the first day after the date by which the Company and the Guarantor were
required to perform such obligations, Additional Interest shall accrue on the
principal amount of the outstanding Notes that are Registrable Convertible
Securities at a rate of 0.25% per annum for the first 90 days and at a rate
of
0.50% per annum thereafter;
(iv) if
the Shelf Registration Statement has been declared effective or has otherwise
become effective but such Shelf Registration Statement ceases to be effective
at
any time during the Effective Period (other than pursuant to Section 4(b)
hereof), then commencing on the day such Shelf Registration Statement ceases
to
be effective, Additional Interest shall accrue on the principal amount of the
outstanding Notes that are Registrable Convertible Securities at a rate of
0.25%
per annum for the first 90 days following such date on which the Shelf
Registration Statement ceases to be effective and at a rate of 0.50% per annum
thereafter; or
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(v) if
the aggregate duration of Deferral Periods in any period exceeds the number
of
days permitted in respect of such period pursuant to Section 4(b) hereof, then
commencing on the day the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period (and again on
the
first day of any subsequent Deferral Period during such period), Additional
Interest shall accrue on the principal amount of the outstanding Notes that
are
Registrable Convertible Securities at a rate of 0.25% per annum for the first
90
days and at a rate of 0.50% per annum thereafter;
provided,
however,
that
the Additional Interest rate on the Notes shall not exceed in the aggregate
0.50% per annum and shall not be payable under more than one clause above for
any given period of time, except that if Additional Interest would be payable
under more than one clause above, but at a rate of 0.25% per annum under one
clause and at a rate of 0.50% per annum under the other, then the Additional
Interest rate shall be the higher rate of 0.50% per annum; provided
further,
however, that
(1)
upon the filing of the Shelf Registration Statement (in the case of clause
(i)
above), (2) upon the effectiveness of the Shelf Registration Statement (in
the
case of clause (ii) above), (3) upon the performance by the Company and the
Guarantor of their obligations set forth in Section 2(c) hereof within the
time
periods required therein (in the case of clause (iii) above), (4) upon the
effectiveness of the Shelf Registration Statement which had ceased to remain
effective (in the case of clause (iv) above), (5) upon the termination of the
Deferral Period that caused the limit on the aggregate duration of Deferral
Periods in a period set forth in Section 4(b) to be exceeded (in the case of
clause (v) above) or (6) upon the termination of certain transfer restrictions
on the Securities as a result of the application of Rule 144(k) or any successor
provision, Additional Interest on the Notes as a result of such clause, as
the
case may be, shall cease to accrue.
Additional
Interest on the Notes, if any, will be payable in cash on January 25 and July
25
of each year (the “Additional
Interest Payment Date”)
to
holders of record of outstanding Notes that are Registrable Convertible
Securities on each preceding January 11 and July 11; provided
that any
Additional Interest accrued with respect to any Notes or portion thereof called
for redemption on a redemption date or converted into Shares on a conversion
date prior to the Registration Default shall, in any such event, be paid instead
to the Holder who submitted such Notes or portion thereof for redemption or
conversion on the applicable redemption date or conversion date, as the case
may
be, on such date (or promptly following the conversion date, in the case of
conversion). Following the cure of all Registration Defaults requiring the
payment of Additional Interest to the Holders of Notes that are Registrable
Convertible Securities pursuant to this Section, the accrual of Additional
Interest will cease (without in any way limiting the effect of any subsequent
Registration Default requiring the payment of Additional Interest).
The
Company shall notify the Trustee promptly upon the happening of each and every
Registration Default. The Trustee shall be entitled, on behalf of Holders of
Securities, to seek any available remedy for the enforcement of this Agreement,
including for the payment of any Additional Interest. Notwithstanding the
foregoing, the parties agree that the sole monetary damages payable for a
violation of the terms of this Agreement with respect to which additional
monetary amounts are expressly provided shall be as set forth in this Section
2(d). Nothing shall preclude a Notice Holder or Holder of Registrable
Convertible Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.”
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4.
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New
Section 2(f) of the Agreement is hereby added in its entirety as
follows:
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“Upon
receipt of a written request from the Majority Holders (the “Registrable
Convertible Securities Notice”),
the
Company and the Guarantor agree to enter into an amendment to this Agreement
(the “Notes
Registration Amendment”)
as
soon as reasonably practicable requiring the Company and the Guarantor to file
under the Securities Act as promptly as practicable but in any event within
90
days after the latter of (x) the date upon which the Registrable
Convertible Securities Notice is delivered to the Company and the Guarantor
and
(y) the date on which both the Company and the Guarantor become eligible to
so file (the latter date hereinafter being referred to as the “Notes
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
Convertible Securities, pursuant to Rule 415 or any similar rule that may be
adopted by the Commission; provided, however, that if the Company and the
Guarantor are unable to obtain, without the expenditure of unreasonable effort
or expense, from the Company’s and Guarantor’s independent auditors or
accountants (or former independent auditors or accountants, as may be
applicable), all financial statements, reports, consents and approvals that
are
required (as determined by the Company in its reasonable discretion) to be
obtained, filed (or furnished), prepared or completed in connection with such
shelf registration statement, then the Company and the Guarantor shall continue
to use their reasonable efforts to obtain all such financial statements,
reports, consents and approvals from such auditors or accountants and the Notes
Eligibility Date shall be deemed to be the date that is 60 days before the
date
upon which the Company and the Guarantor have received all such financial
statements, reports, consents and approvals. The Notes Registration Amendment
shall provide for the registration of the Registrable Convertible Securities
on
terms and conditions substantially corresponding to those set forth in this
Agreement with respect to the registration of the Registrable Securities, as
may
be applicable, except that references to the Eligibility Date in the Notes
Registration Amendment shall refer instead to the Notes Eligibility
Date.”
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5.
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Section 10
of the Agreement is hereby amended and restated as
follows:
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“[Reserved.]”
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6.
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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.
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7.
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Except
as expressly amended by this Amendment, the Agreement shall remain
in full
force and effect.
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8.
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This
Amendment shall be governed by and construed in accordance with the
laws
of the State of New York.
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9.
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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]
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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: ▇▇▇
▇▇▇▇▇▇▇▇
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Title:
Director
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STATE
HARVEST HOLDINGS LIMITED
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| By: | ||
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Name: ▇▇▇
▇▇▇▇▇▇▇▇
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Title:
Director
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CITADEL
EQUITY FUND LTD.
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| By: | Citadel Limited Partnership, its Portfolio | |
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Manager
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| By: |
Citadel
Investment Group, L.L.C., its General
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Partner
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| By: | ||
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Name:
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Title: Authorized
Signatory
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