Attached files
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| EX-5.1 - China Agri-Business, Inc. | v166251_ex5-1.htm |
As
filed with the Securities and Exchange Commission on November 13, 2009
Registration
No. 333-157346
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-1
(Amendment
No. 6)
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
China Agri-Business,
Inc.
(Exact
name of registrant as specified in its charter)
Maryland
(State or
other jurisdiction of incorporation or organization)
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2870
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20-3912942
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(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer Identification Number)
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In the
People’s Republic of China:
Building
2, Unit 1, 15th Floor
Ling Xian
Xin Cheng
86 Gaoxin
Road
Hi-Tech
Industrial Development Zone
Xian,
Shannxi, China 710065
(86)
029-68596556
In the
United States:
11 East
86th Street, New York, New York 10028
(212)
348-5600
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Michael
Segal
11 East
86th Street, New York, New York 10028
(212)
348-5600
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
to:
Jeffrey
Rinde, Esq.
Blank
Rome LLP
The
Chrysler Building, 405 Lexington Avenue
New York,
NY 10174-0208 U.S.A.
Tel:
(212) 885-5000
As soon as practicable after
the effective date of this Registration Statement
(Approximate
date of commencement of proposed sale to the public)
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, check
the following box: x
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: ¨
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. ¨
If this
Form is a post-effective amendment filed pursuant to Rule 462(d) 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. ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a small reporting
company:
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Large
accelerated filer ¨
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Accelerated
filer ¨
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Non-accelerated
filer ¨
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Smaller
reporting company x
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Title
of each class of securities to be registered
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Amount
to be
registered(3)
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Proposed
maximum
offering
price
per
share (4)
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Proposed
maximum
aggregate
offering
price
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Amount
of
registration
fee
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||||||||||
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Common
stock underlying convertible notes, par value $0.001 per share
(1)
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73,380
shares
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$ | 0.14 | $ | 10,273.20 | $ | 1.73 | |||||||
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Common
stock underlying investor warrants, par value $0.001 per share
(2)
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500,000
shares
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$ | 0.14 | $ | 70,000 | $ | 2.75 | |||||||
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Total
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573,380
shares
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$ | 0.14 | $ | 80,273.20 | $ | 4.48 | |||||||
(1)
Represents shares of common stock underlying convertible promissory
notes.
(2)
Represents shares of common stock underlying investor warrants.
(3) The
number of shares of common stock being registered has been reduced from
1,617,980 to 573,380.
(4)
Estimated solely for purposes of calculating the registration fee in accordance
with Rule 457(c) and Rule 457(g) under the Securities Act of 1933, using the
closing price as reported on the OTC Bulletin Board on February 6,
2009.
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 OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
PART
II - INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM
13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The
expenses to be paid by the Registrant are as follows. All amounts, other than
the SEC registration fee, are estimates.
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Amount to
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||||
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Be Paid
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||||
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SEC
registration fee
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$
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8.90
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Legal
fees and expenses
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$
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25,000
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Accounting
fees and expenses
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$
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5,000
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Miscellaneous
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$
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2000
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Total
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$
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32,008.90
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ITEM
14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our
articles of incorporation provide that none of our directors will be personally
liable to the Company or any of our shareholders for monetary damages arising
from the director's breach of fiduciary duty as a director, with certain limited
exceptions.
ITEM
15. RECENT SALES OF UNREGISTERED SECURITIES
The
following issuance of shares were exempt from registration under section 4(2) of
the Securities Act or Regulation D promulgated thereunder as
indicated:
2006
Preferred Stock and Warrant Purchase Agreement
On May
31, 2006, we entered into a Preferred Stock and Warrant Purchase Agreement with
William J. Ritger whereby we sold and issued to Mr. Ritger for $100,000, 10,000
Units for $10.00 per Unit. Each Unit comprises one share of our Series A
Preferred Stock and a warrant to purchase one share of our common stock. The
issuance of shares of our Series A Preferred Stock was exempt from registration
under Section 4(2) of the Securities Act. The Series A Preferred Stock has since
been converted into 300,000 shares of our common stock.
Private
Placement of Convertible Notes and Warrants
On
September 29, 2008, we completed a private placement with two accredited
investors consisting of 3% unsecured convertible notes in an aggregate principal
amount of $500,000 and series C warrants to purchase an aggregate of 500,000
shares of the Company’s common stock. We received net proceeds of approximately
$431,500, which the Company plans to use to pursue the expansion of its
manufacturing and distribution operations and for general working capital and
business purposes.
The notes
mature two years from the date of issuance and bear interest at the rate of 3%
per annum, payable annually in cash or in shares common stock, subject to
approval of the holder. Any interest which is not paid when due shall bear
interest at the rate of fifteen percent (15%) per annum. Any principal which is
not paid when due shall bear interest at the rate of eight percent (8%) per
annum. The notes are convertible at the option of the holder into common at a
conversion price of $0.50 per share. The conversion price is subject to
adjustment upon the occurrence of stock splits, combinations, dividends, and
subsequent offerings, as set forth in the notes.
II-1
Subject
to effectiveness of the registration statement, the Company shall have the right
to prepay the notes at 110% of the outstanding principal amount any time prior
to the maturity date, and upon thirty (30) days prior written notice to the
holders.
The
series C warrants have a term of three years and an exercise price of $1.50 per
share. In addition, upon exercise of a series C warrant, each holder
shall be issued a series D warrant. The series D warrants shall have a term of
three years and an exercise price of $2.00 per share. The shares issuable upon
exercise of the series D warrants are not covered by this registration
statement. The exercise price of the warrants is subject to adjustment upon the
occurrence of stock splits, combinations, dividends, and subsequent offerings,
as set forth in the Warrants.
The
Company may call for the termination of any unexercised portion of the series C
warrants upon consummation of a subsequent offering by the Company of not less
than $7.5 million in gross proceeds, and upon thirty (30) days written notice to
the holders.
In
connection with the Private Placement we entered into registration rights
agreements with the investors pursuant to which we have agreed to prepare and
file a registration statement with the Securities and Exchange Commission not
later than 60 calendar days after the final closing. The registration statement
shall seek to register for resale, in the amounts set forth in the Registration
Rights Agreement: (i) the Warrant Shares issuable upon exercise of the Warrants,
and (ii) the Conversion Shares issuable upon conversion of the Notes. The
registration rights agreement provides that we are required to register only
that number of Warrant Shares and Conversion Shares that would violate Rule 415
promulgated under the Securities Act of 1933, as amended, minus 10,000 shares,
referred to as the Rule 415 limitation.
If we
fail to file such registration statement within the 60 calendar day deadline, or
if the registration statement is not declared effective by October 30, 2009, we
are subject to liquidated damages payments in an amount equal to two percent
(2%) of the aggregate purchase price paid by the initial investor pursuant to
the Private Placement for any unregistered Warrant Shares and Conversion Shares
then held by the noteholder. This payment will be payable to the noteholder in
arrears at the end of each month during which the failure to have an effective
registration statement continues. In no event will the Company be liable for
liquidated damages under the registration rights agreement in excess of 2% of
the aggregate purchase price of the initial investors in any 30 day period and
the maximum aggregate liquidated damages payable to any holder of unregistered
Warrant Shares and Conversion Shares under the registration rights agreement is
24% of the aggregate purchase price paid by the initial investor in the Private
Placement. If the Registration Statement of which this prospectus forms a part
is declared effective by the SEC by October 30, 2009, we will not be required to
pay any liquidated damages.
In
connection with the Private Placement, the placement agent received a cash
commission of $40,000 and an expense allowance of $25,000. In addition, the
placement agent is entitled to receive warrants to purchase 80,000 shares of
common stock at an exercise price of $1.00 per share for a term of three
years.
The
foregoing issuances of securities were exempt from registration pursuant to
Regulation D of the Securities Act.
Private
Placement of Warrants
On
October 9, 2009, we issued to Legend Merchant Group, Inc. warrants to purchase
up to 1,000 shares of common stock at an exercise price equal to $1.00 per share
for services rendered and waiving registration rights. The foregoing
issuance was exempt from registration under Section 4(2) of the Securities
Act.
ITEM
16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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3.1.1
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Articles
of incorporation (1)
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3.2
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By-Laws
(1)
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3.3
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Articles
of Incorporation, as amended (1)
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4.1
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Form
of 3% Convertible Note (2)
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4.2
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Form
of Series C Warrant (2)
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4.3
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Form
of Series D Warrant (2)
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4.4
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Form
of Underwriter Warrant (3)
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4.5
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Form
of Placement Agent Warrant (3)
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4.6
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Form
of Warrant issued to Legend Merchant Group, Inc. dated October 9, 2009
(8)
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5.1
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Opinion
of Blank Rome LLP
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9.1
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Stock
Purchase Agreement between Company and Xinsheng Shareholders dated April
22, 2006. (1)
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9.2
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Management
Agreement between Xinsheng and Meixin dated April 18,2006. (1)
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9.3
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Voting
Trust and Escrow Agreement with Xinsheng Shareholders and their trustee
dated April 22 2006. (1)
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10.1
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Form
of Subscription Agreement (2)
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10.2
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Form
of Registration Rights Agreement (2)
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10.3
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Placement
Agent Agreement (5)
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10.4
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Business
Advisory Agreement (7)
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10.5
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Letter
Agreement dated as of August 12, 2009 among China Agri-Business, JAG
Multi-Investments, LLC and Keith Guenther (6)
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10.6
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Letter Agreement dated as of June 12, 2009 among China Agri-Business, JAG Multi-Investments, LLC and Keith Guenther (8) | |
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10.7
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Letter Agreement dated as of October 12, 2009 among China Agri-Business, JAG Multi-Investments, LLC and Keith Guenther (8) | |
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21.1
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Subsidiaries
of the small business issuer (1)
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23.1
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Consent
of Michael Studer CPA PC
(8)
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23.2
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Consent
of Blank Rome LLP (see Exhibit 5.1)
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23.3
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Consent
of China Shaanxi Chunhua County Land and Fertilizer Working Station dated
March 24, 2009 (4)
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23.4
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Consent
of China Shaanxi Province Land and Fertilizer Working Station dated March
24, 2009 (4)
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23.5
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Consent
of China Shaanxi Province Yangling Zong Land and Fertilizer Working
Station dated March 24, 2009 (4)
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24.1
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Power
of Attorney (3)
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II-2
(1)
Incorporated by reference to the Form SB-2 (File No. 333-140118) filed on
January 19, 2007.
(2)
Incorporated by reference to the Form 8-K filed on October 3,
2008.
(3)
Incorporated by reference to the Form S-1 filed on February 13,
2009.
(4)
Incorporated by reference to the Form S-1 (Amendment No. 1) filed on April 13,
2009.
(5)
Incorporated by reference to the Form S-1 (Amendment No. 2) filed on June 16,
2009.
(6)
Incorporated by reference to the Form 10-Q for the quarter ended June 30, 2009
filed on August 14, 2009.
(7) Incorporated
by reference to the Form S-1 (Amendment No. 3) filed on August 28,
2009.
(8) Incorporated
by reference to the Form S-1 (Amendment No. 5) filed on November 12,
2009.
ITEM
17. UNDERTAKINGS
The
undersigned Registrant hereby undertakes to provide certificates in such
denominations and registered in such names as required by the purchasers to
permit prompt delivery to each purchaser.
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, 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 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.
The
undersigned Registrant hereby undertakes:
(a) (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 end 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% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement.
(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;
II-3
(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) Not
applicable.
(5) That
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(ii) Each
prospectus filed pursuant to Rule 424(b) as part of this registration statement,
shall be deemed to be part of and included in this registration statement as of
the date it is first used after effectiveness; provided, however, that no
statement made in this registration statement or prospectus that is part of this
registration statement or made in a document incorporated or deemed incorporated
by reference into this registration statement or prospectus that is part of this
registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement that was made in this
registration statement or prospectus that was part of this registration
statement or made in any such document immediately prior to such date of first
use.
(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 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.
II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant has duly caused this
registration statement to be signed on its behalf by the undersigned on November
13, 2009.
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CHINA
AGRI-BUSINESS, INC.
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By:
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*
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Name: Liping Deng
Title: Chief Executive Officer and President (Principal Executive
Officer)
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By:
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/s/
Xiaolong Zhou
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Name: Xiaolong Zhou
Title: Chief Financial Officer, (Principal Accounting and Financial
Officer)
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In
accordance with the requirements of the Securities Act of 1933, this
Registration Statement on Form S-1 was signed by the following persons in the
capacities and on the dates indicated.
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By
:
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*
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November
13, 2009
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|
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Name:
Liping Deng
Title:
Chief Executive Officer and President (Principal Executive Officer)
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By:
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/s/
Xiaolong Zhou
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November
13, 2009
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Name:
Xiaolong Zhou
Title:
Chief Financial Officer (Principal Accounting and Financial Officer)
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By:
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*
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November
13, 2009
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Name:
Michael Segal
Title:
Director
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By:
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*
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November
13, 2009
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Name:
Limin Deng
Title:
Director
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*By: /s/ Delong
Zhou
Delong Zhou
attorney-in-fact
II-5