S-8 1 tm2114773d1_s8.htm FORM S-8

 

As filed with the Securities and Exchange Commission on May 17, 2021

Registration No. 333-____

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

__________________

 

Form S-8

REGISTRATION STATEMENT

Under

THE SECURITIES ACT OF 1933

__________________

 

Origin agritech limited

(Exact Name of Registrant as Specified in Its Charter)

 

British Virgin Islands   Not Applicable

State or Other Jurisdiction of

Incorporation or Organization

 

(I.R.S. Employer

Identification Number)

 

Origin Agritech Limited

No. 21 Sheng Ming Yuan Road

Changping District, Beijing 102206

China

Tel: (86-10) 5890-7588

Fax: (86-10) 5890-7577

(Address of Principal Executive Offices)

 

2021 Performance Equity Plan

(Full Title of the Plan)

 

Mr. Wei Han

830 Morris Turnpike

Short Hills, NJ 07078

Tel: (86-10) 5890-7588

(Name, Address and Telephone Number, Including Area Code, of Agent for Service)

 

with a copy to:

 

Andrew Hudders, Esq.

Golenbock Eiseman Assor Bell & Peskoe LLP

711 Third Avenue

New York, New York 10017

Telephone: (212) 907-7349

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ¨    Accelerated filer   ¨    Non-accelerated filer  x   Smaller reporting company x

Emerging growth company  ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨

  

CALCULATION OF REGISTRATION FEE 

 

Title of each Class of Securities to be
Registered

 

 

Amount to be

Registered(1)

  

 

Proposed Maximum

Offering Price

Per Share

  

Proposed Maximum

Aggregate

Offering Price

  

 

Amount of

Registration Fee

 
Ordinary Shares, no par value    1,000,000(2)   $11.75(3)    $11,750,000    $1,281.93 

 

(1)

In addition, pursuant to Rule 416 (c) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate number of additional shares which may be issued pursuant to the above plan as a result of any future share sub-division, share dividend, or similar adjustment.

 

(2)Shares issuable in respect of awards granted under the 2021 Performance Equity Plan.

 

(3)Estimated pursuant to Rule 457(c) and (h)(1) solely for the purposes of calculating the amount of the registration fee, based on the average of the high and low prices reported on May 12, 2021 by NASDAQ.

 

__________________

 

In accordance with the provisions of Rule 462 promulgated under the Securities Act, this registration statement will become effective upon filing with the Securities and Exchange Commission.

 

__________________

 

 

 

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1.Plan Information.*

 

Item 2.Registrant Information and Employee Plan Annual Information. *

 

_______

*The documents containing the information specified in this Part I will be sent or given to the participants as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Securities and Exchange Commission (the “SEC”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

 

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.Incorporation of Documents by Reference.

 

The following documents previously or concurrently filed by the Registrant with the Securities and Exchange Commission (“SEC”) are hereby incorporated by reference in this Registration Statement:

 

1. The Registrant’s Annual Report on Form 20-F for the fiscal year ended September 30, 2020;
2. The Registrant’s Report on Form 6-K dated March 2021, filed with the SEC on March 12, 2021; and
3.  All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) since the end of the fiscal year for which audited financial statements of the Registrant have been filed.

 

The description of our ordinary shares contained in the Registration Statement on Form 8-A, filed with the SEC on October 18, 2005, including any further amendment or report filed hereafter for the purpose of updating such description, including Exhibit 4.16 to the Annual Report on Form 20-F filed on February 16, 2021.

 

All documents subsequently filed by us pursuant to the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents.

 

Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this Registration Statement, modifies or supersedes such prior statement. Any statement contained in this Registration Statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4.Description of Securities.

 

Not applicable.

 

Item 5.Interests of Named Experts and Counsel.

 

Not applicable.

 

 

 

 

 

Item 6. Indemnification of Directors and Officers.

 

Our Memorandum and Articles provide that a director will not be personally liable to us or to our shareholders for monetary damages for breach of the fiduciary duty of care as a director, including breaches which constitute gross negligence. This provision does not eliminate or limit the liability of a director:

 

  • for breach of his or her duty of loyalty to us or to our shareholders;
   
  • for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
   
  • for any improper benefit; or
   
  • for breaches of a director's responsibilities under the federal securities laws.

 

Our Memorandum and Articles also provides that we indemnify and hold harmless each of our directors and officers to the fullest extent authorized by the Memorandum and Articles and applicable law of the British Virgin Islands, against all expense, liability and loss (including attorney's fees, judgments, fines, taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of Origin Agritech Limited, pursuant to the forgoing provisions or otherwise, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.

 

Item 7. Exemption from Registration Claimed.

 

Not Applicable.

 

Item 8.Exhibits.

 

See the attached Exhibit Index, which is incorporated herein by reference.

 

Item 9. 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;
   
(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 end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% 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) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

 

 

 

 

(2)       That, for the purpose of determining any liability under the Securities Act 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.

 

(b)       The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 above, 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 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 and will be governed by the final adjudication of such issue.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Beijing, Peoples Republic of China, on May 17, 2021.

  

  ORIGIN AGRITECH LIMITED INC.
   
  By: /s/ Dr. Gengchen Han
    Dr. Gengchan Han
    Chief Executive Officer

 

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   Title   Date
/s/ Dr. Gengchen Han     Chief Executive Officer, Chairman of   May 17, 2021
Dr. Gengchen Han   the Board and Director (Princial
Executive Officer and Principal
Financial and Accounting Officer)
   
         
/s/ Michael W. Trimble   Chairman of the Board   May 17, 2021
Michael W. Trimble          
         
/s/ Rong Chen     Director   May 17, 2021
Rong Chen        
         
/s/ Fei Wang     Director   May 17, 2021
Fei Wang        
         
/s/ Min Lin     Director   May 17, 2021
Min Lin        
         
/s/ Wei Han     Agent for Service of Process in the   May 17, 2021
Wei Han   United States    

 

 

 

 

EXHIBIT INDEX

 

Exhibit No.  Description
4.1  Origin Agritech Limited 2021 Performance Equity Plan
5.1  Opinion of Maples and Calder (Hong Kong) LLP
23.1  Consent of BDO China Shu Lun Pan Certified Public Accountants LLP
23.2  Consent of B F Borgers CPA PC, Independent Registered Public Accounting Firm