As Filed with the Securities and Exchange Commission on July 22, 2013
Registration No.: 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________
CHINA GREEN AGRICULTURE, INC.
(Exact Name of Registrant as Specified in its Charter)
Nevada | 36-3526027 |
(State or Other Jurisdiction of | (I.R.S. Employer |
Incorporation or Organization) | Identification No.) |
3rd Floor, Borough A, Block A. No. 181, | |
South Taibai Road, Xi’an, Shaanxi Province | |
People’s Republic of China | 710065 |
(Address of Principal Executive Offices) | (Zip Code) |
2009 Equity Incentive Plan
2012 Amended and Restated Employee Stock Purchase Plan
(Full Title of the Plan)
Mr. Tao Li
Chief Executive Officer
3rd Floor, Borough A, Block A. No. 181,
South Taibai Road, Xi’an, Shaanxi Province
People’s Republic of China 710065
(Name and Address of Agent for Service)
011 86-29-88266368
(Telephone Number, Including Area Code, of Agent for Service)
Copy To:
Elizabeth Fei Chen, Esq.
Pryor Cashman LLP
7 Times Square
New York, New York 10036
(212) 421-4100
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | ¨ | Accelerated filer | ý | |||
Non-accelerated filer | ¨ | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
Proposed | Proposed | |||||||||||||
Maximum | Maximum | |||||||||||||
Offering | Aggregate | |||||||||||||
Title of Each Class of | Amount to | Price Per | Offering | Amount of | ||||||||||
Securities to be Registered | be Registered(1) | Share(2) | Price(2) | Registration Fee | ||||||||||
Common Stock, $.001 par value per share | 3,000,000 shares | $ | 2.815 | $ | 8,445,000.00 | $ | 1,151.86 | |||||||
Common Stock, $.001 par value per share | 1,250,000 shares | $ | 2.815 | $ | 3,518,750.00 | $ | 480.00 | |||||||
Total | 4,250,000 shares | $ | 2.815 | $ | 11,963,750.00 | $ | 1,631.86 |
________________
(1) | Represents (i) 3,000,000 additional shares of common stock issuable under our 2009 Equity Incentive Plan, dated as of December 11, 2009, as amended, and (ii) 1,250,000 shares of Common Stock issuable under our 2012 Amended and Restated Employee Stock Purchase Plan dated as of October 19, 2012. Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), the number of shares of common stock registered hereunder will be adjusted in the event of stock splits, stock dividends or similar transactions. |
(2) | Estimated solely for the purpose of calculating the registration fee and computed in accordance with Rules 457(c) and 457(h) of the Securities Act upon the basis of the average of the high and low prices per share of the Registrant’s common stock as reported on the NYSE on July 17, 2013. |
EXPLANATORY NOTE
China Green Agriculture, Inc. (“we,” “us” or “our”) has prepared this registration statement (this “Registration Statement”) in accordance with the requirements of Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), to register (i) an additional 3,000,000 shares of our common stock issuable under our 2009 Equity Incentive Plan, dated as of December 11, 2009, as amended (the “2009 Plan”) and (ii) 1,250,000 shares of Common Stock issuable under our 2012 Amended and Restated Employee Stock Purchase Plan, dated as of October 19, 2012 (the “ESPP”).
PART I
INFORMATION REQUIRED IN THE 10(A) PROSPECTUS
The documents containing the information required by Part I of Form S-8 will be sent or given to the participants in the 2009 Plan or the ESPP, as the case may be, as specified by Rule 428(b)(1) of the Securities Act. In accordance with the Note to Part I of Form S-8, such documents are not required to be, and may not be, filed with the U.S. Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference herein 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, and all documents we subsequently file pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and shall be deemed to be a part hereof from the date of the filing of such documents:
(1) | the description of our common stock contained in our Registration Statement on Form 8-A filed with the Commission on December 3, 2009, including any amendment or report filed for the purpose of updating such information; |
(2) | our Annual Report on Form 10-K for the fiscal year ended June 30, 2012, filed with the Commission on September 13, 2012, as amended on September 24, 2012 and January 18, 2013; |
(3) | our Quarterly Reports on Form 10-Q for the fiscal quarters ended September 30, 2012, December 31, 2013 and March 31, 2013, as filed with the Commission on November 11, 2013, February 7, 2013 and May 10, 2013, respectively; |
(4) | our Current Reports on Form 8-K filed with the Commission on October 3, 2012, November 20, 2012, December 20, 2012, February 8, 2013 and May 13, 2013 (except any portions thereof which are furnished and are not filed shall not be deemed incorporated); |
(5) | our Definitive Proxy Statement on Schedule 14A filed with the Commission on October 29, 2012; |
(6) | all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the report referred to in (2) above. |
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Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or deemed to be incorporated by reference herein modifies or supersedes such statement.
You may contact the Registrant in writing or orally to request copies of the above-referenced filings, without charge (excluding exhibits to such documents unless exhibits are specifically incorporated by reference into the information incorporated into this Registration Statement). Requests for such information should be addressed to:
China Green Agriculture, Inc.
Attention: Investor Relations
3rd Floor, Borough A, Block A. No. 181,
South Taibai Road, Xi’an, Shaanxi Province
People’s Republic of China 710065
011 86-29-88266368
Item 4. | Description of Securities. |
Not applicable.
Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
Item 6. | Indemnification of Directors and Officers. |
The only statute, charter provision, bylaw, contract, or other arrangement under which any controlling person, director or officer of the Company is insured or indemnified in any manner against any liability which he or she may incur in his or her capacity as such, is as follows:
(a) Subsection 1 of Section 78.7502 of the Nevada Corporation Law empowers a corporation to “indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding if he acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and that, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful.”
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Subsection 2 of Section 78.7502 empowers a corporation to “indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him in connection with the defense or settlement of the action or suit if he acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.”
Subsection 3 of Section 78.7502 further provides that “to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections 1 and 2, or in defense of any claim, issue or matter herein, he must be indemnified by the corporation against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with the defense.”
(b) The Articles of Incorporation of the Company generally allows indemnification of officers and directors to the fullest extent allowed by law.
We also, at the discretion of the Board of Directors, purchased and maintain insurance to the fullest extent permitted by Nevada law on behalf of any of our directors, officers, employees or agents against any liability asserted against such person and incurred by such person in any such capacity.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing, the Registrant has been informed that in the opinion of the Commission 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. |
Reference is hereby made to the Exhibit Index, which is incorporated herein by reference.
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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:
(a) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(b) To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement; and
(c) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(a) and (1)(b) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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 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 this 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 foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant hereby certifies that it has reasonable grounds to believe that it meets all 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 Xi’an, Shaanxi Province, People’s Republic of China on this 22nd day of July 2013.
CHINA GREEN AGRICULTURE, INC. | |||
By: | /s/ Tao Li | ||
Name: Tao Li | |||
Title: Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, the undersigned hereby constitute and appoint Tao Li and Ken Ren, or either of them, his true and lawful attorney-in-facts and agent, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) or supplements to this Registration Statement, or any related registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorney-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Tao Li | Chairman of the Board of Directors | July 22, 2013 | ||
Tao Li | and Chief Executive Officer | |||
(Principal Executive Officer) | ||||
/s/ Ken Ren | Chief Financial Officer | July 22, 2013 | ||
Ken Ren | (Principal Financial and | |||
Accounting Officer) | ||||
/s/ Yu Hao | Director | July 22, 2013 | ||
Yu Hao | ||||
/s/ Lianfu Liu | Director | July 22, 2013 | ||
Lianfu Liu | ||||
/s/ Yizhao Zhang | Director | July 22, 2013 | ||
Yizhao Zhang | ||||
/s/ Yiru Shi | Director | July 22, 2013 | ||
Yiru Shi |
EXHIBIT INDEX
Exhibit No. | Description |
5.1 | Opinion of Pryor Cashman LLP (regarding validity of common stock being registered). |
10.1 | 2009 Equity Incentive Plan of China Green Agriculture, Inc. dated as of December 11, 2009 (incorporated herein by reference to Exhibit 10.1 to the Registration Statement on Form S-8 filed with the Commission on December 22, 2009). |
10.2 | Amendment to 2009 Equity Incentive Plan of China Green Agriculture, Inc. dated as of October 29, 2009 (incorporated herein by reference to Appendix A to the Definitive Proxy Statement on Schedule 14A filed with the Commission on October 29, 2012). |
10.3 | 2012 Amended and Restated Employee Stock Purchase Plan dated as of October 19, 2012 (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q filed with the Commission on November 19, 2012). |
23.1 | Consent of Pryor Cashman LLP (included in its opinion filed as Exhibit 5.1). |
23.2 | Consent of Kabani & Company, Inc. |
24.1 | Power of Attorney (included in the signature page hereto). |
Exhibit 5.1
[LETTERHEAD OF PRYOR CASHMAN LLP]
July 22, 2013
China Green Agriculture, Inc.
3rd Floor, Borough A, Block A. No. 181,
South Taibai Road, Xi’an, Shaanxi Province
People’s Republic of China 710065
Re: | Registration Statement on Form S-8 of up to 4,250,000 shares |
of Common Stock of China Green Agriculture, Inc. |
Ladies and Gentlemen:
This opinion letter is furnished to you in connection with your filing of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof relating to the registration of (i) 3,000,000 shares (the “2009 Plan Shares”) of common stock, $0.001 par value per share (the “Common Stock”), of China Green Agriculture, Inc., a Nevada corporation (the “Company”), issuable pursuant to the Company’s 2009 Equity Incentive Plan, dated as of December 11, 2009, as amended (the “2009 Plan”), and (ii) 1,250,000 shares (the “ESPP Shares”) of Common Stock issuable pursuant to the Company’s 2012 Amended and Restated Employee Stock Purchase Plan dated as of October 19, 2012 (the “ESPP”, and together with the 2009 Plan, the “Plans”). We have acted as counsel to the Company in connection with the preparation and filing of the Registration Statement.
In connection therewith and for the purposes of giving the opinion hereinafter set forth, we have examined such corporate records, certificates and other documents, and such questions of law as we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our opinion, the 2009 Plan Shares and the ESPP Shares (collectively, the “Registered Shares”) have been duly authorized, and, assuming that (i) the Company reserves for issuance under the Plans an adequate number of authorized and unissued shares of Common Stock (ii) the consideration required to be paid in connection with the issuance and sale of shares of Common Stock under the Plans is actually received by the Company as provided in the Plans, when issued and delivered in accordance with the 2009 Plan (for the 2009 Plan Shares) or the ESPP (for the ESPP Shares), the Registered Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission.
The opinions expressed herein are specifically limited to the laws of the State of Nevada applicable to Private Corporations (Title 7, Chapter 78 of the Nevada Revised Statutes) and the federal laws of the United States of America and are as of the date hereof and we express no opinion with respect to the laws of any other jurisdiction.
This opinion letter is rendered as of the date first written above, and we assume no obligation to update or supplement such opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur. Our opinion is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Plans, or the Registered Shares.
Very truly yours, | ||
/s/ Pryor Cashman LLP |
Exhibit 23.2
[LETTERHEAD OF KABANI & COMPANY, INC.]
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors
China Green Agriculture, Inc.
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of China Green Agriculture, Inc., dated July 22, 2013, of our report dated September 13, 2012 on the consolidated balance sheets of China Green Agriculture, Inc and its subsidiaries as of June 30, 2011 and 2012 and the consolidated statements of income and comprehensive income, stockholders’ equity and cash flows for each of the years in the three year period ended June 30, 2012.
KABANI & COMPANY, INC.
Los Angeles, California
July 22, 2013