Chardan Capital Markets , LLC Suite 1600 New York, NY 10004
Exhibit
4.02
Chardan
Capital Markets , LLC
00
Xxxxx Xxxxxx
Xxxxx
0000
Xxx
Xxxx, XX 00000
November 18,
2010
CONFIDENTIAL
Xx.
Xxxxxx Xxx
Chief
Financial Officer
Origin
Agritech Limited
Xx. 00
Xxxxx Xxxx Xxxx Xxxx
Xxxxxxxxx
Xxxxxxxx, Xxxxxxx
Xxxxx
00000
Dear Xx.
Xxx:
Chardan Capital Markets Group (“CCM”)
is pleased to act as a non-exclusive financial advisor to Origin Agritech
Limited (the “Company”). This letter agreement (the “Agreement”) sets
forth the terms of our engagement.
1. Services. CCM’s
engagement hereunder shall consist of the provision of financial advisory
services from time to time during the term and as reasonably requested by the
Company and mutually acceptable in scope as between the Company and
CCM. A goal of this assignment will be to help the Company make a
realistic assessment of its capabilities and future objectives and help it
accomplish those objectives.
2. Term,
etc. This Agreement will be for an initial term of three
months. It will be extended on a month to month basis after the
initial term for up to an aggregate of 12 months, including the initial term.
The Company has the absolute right to terminate this Agreement at any time, by
written notice to CCM, which notice of termination shall be effective
immediately upon its being given by the Company. A writing for this
purpose, notwithstanding Section 8, may be by email or any other means
reasonably likely to convey the notice and intent of termination.
3.
Fees. The
Company will pay to CCM, as the only fee due hereunder, ___ % of the aggregate
gross sales price of any securities sold by the Company under that certain
Continuous Offering Program Agreement dated as of ___, 2010 (“ATM Agreement”),
by and between the Company and Xxxxxx & Xxxxxxx, which securities are sold
by the Company on any day during the term of this Agreement. For
purposes of this Agreement, the sale of the securities will be the date on which
the Company is obligated to deliver the securities sold to the purchaser under
the ATM Agreement.
4. Expenses. It
is not expected that there will be any expenses for the provision of the
services under this Agreement, therefore the Company shall not be obligated to
reimburse CCM for any expenses that CCM or any other person may incur in
connection with this Agreement.
5. Use of
Information. The Company may furnish CCM written information
as CCM reasonably requests in connection with the performance of its services
hereunder. The Company understands, acknowledges and agrees that, in
performing its services hereunder, CCM will use and rely entirely upon such
information as well as publicly available information regarding the Company and
other potential parties and that CCM does not assume responsibility for
independent verification of the accuracy or completeness of any information,
whether publicly available or otherwise furnished to it, concerning the Company
or otherwise, including, without limitation, any financial information,
forecasts or projections considered by CCM in connection with the provision of
its services.
CCM
agrees to keep confidential during the Term, and for three years after the later
of the expiration or any termination, of this Agreement, all material nonpublic
information provided to it by the Company, except as required by law, pursuant
to an order of a court of competent jurisdiction or the request of a regulatory
authority having jurisdiction over CCM or its affiliates (a “Regulatory
Request”), or as contemplated by the terms of this Agreement, provided CCM
shall, if permitted by law, give notice to the Company of the request or order
(other than a Regulatory Request) to furnish the nonpublic information.
Notwithstanding any provision herein to the contrary, CCM may disclose nonpublic
information to its affiliates, agents and advisors whenever CCM determines that
such disclosure is necessary to provide the services contemplated hereunder,
provided that CCM advises such persons of the obligation to maintain the
confidentiality of such information and remains liable under this Agreement for
any breach of confidentiality by such affiliates, agents and advisors. Under no
circumstances will the content of the Company’s patent applications and licensed
rights, whether in the United States, Peoples Republic of China or in any other
jurisdiction, or any exhibits to said patent applications or licenses be
disclosed by CCM to any party at any time for any reason, except to CCM’s legal
counsel or under order of a court or tribunal having proper jurisdiction, or by
separate written agreement with the Company or by written direction of the
Company. Said restriction shall also apply to any and all engineering
reports submitted by the Company to CCM in performance of CCM’s due diligence
investigation, whereby such engineering reports meaningfully expose or discuss
material facts with respect to the Company’s intellectual property, product
designs, technical performance of a product or products, component sourcing
plans, manufacturing plans or any other information that may be reasonably
interpreted as a “trade secret” or critical amalgamation of trade
secrets.
6. Limitation of Engagement to
the Company. The Company acknowledges that CCM has been
retained only by the Company, that CCM is providing services hereunder as an
independent contractor (and not in any fiduciary or agency capacity) and that
the Company’s engagement of CCM is not deemed to be on behalf of, and is not
intended to confer rights upon, any shareholder, owner or partner of the Company
or any other person not a party hereto as against CCM or any of its affiliates,
or any of its or their respective officers, directors, controlling persons
(within the meaning of Section 15 of the Securities Act of 1933, as amended (the
“Securities Act”) or Section 20 of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)), employees or agents. Unless otherwise
expressly agreed in writing by CCM, no one other than the Company is authorized
to rely upon this Agreement or any other statements or conduct of CCM, and no
one other than the Company is intended to be a beneficiary of this
Agreement. The Company acknowledges that any recommendation or
advice, written or oral, given by CCM to the Company in connection with CCM’s
engagement is intended solely for the benefit and use of the Company’s
management and directors, and any such recommendation or advice is not on behalf
of, and shall not confer any rights or remedies upon, any other person or be
used or relied upon for any other purpose. CCM shall not have the
authority to make any commitment binding on the Company.
2
7. Governing Law;
Costs. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be fully performed therein. Any disputes which arise under
this Agreement will be heard only in the state or federal courts located in the
City of New York, State of New York. The parties hereto expressly
agree to submit themselves to the jurisdiction of the foregoing courts in the
City of New York, State of New York. The parties hereto expressly
waive any rights they may have to contest the jurisdiction, venue or authority
of any court sitting in the City and State of New York. In the event
of the bringing of any action, proceeding or suit by a party hereto against the
other party hereto, arising out of or relating to this Agreement, the party in
whose favor the final judgment or award shall be entered shall be entitled to
have and recover from the other party the costs and expenses incurred in
connection therewith, including its reasonable attorneys’ fees. Any
rights to trial by jury with respect to any such action, proceeding or suit are
hereby waived by CCM and the Company.
8. Notices. All
notices hereunder will be in writing and sent by certified mail, hand delivery,
overnight delivery or fax, if sent to CCM, to Chardan Capital Markets LLC, 00
Xxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 00000, fax number (______)
__________, and if sent to the Company, to the address set forth on the first
page hereof, fax number _______________, Attention: Xx. Xxxxxx Xxx, Chief
Financial Officer, with a copy to Xxxxxx X. Xxxxxxx, Esq., Golenbock Xxxxxxx
Xxxxx Xxxx & Xxxxxx, LLP, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, fax number 000-000-0000. Notices, other
than notices for termination of this Agreement which will be effective as of the
date and time of sending, sent by certified mail shall be deemed received five
days thereafter, notices sent by hand delivery or overnight delivery shall be
deemed received on the date of the relevant written record of receipt, and
notices delivered by fax shall be deemed received as of the date and time
printed thereon by the fax machine.
9. Miscellaneous. This
Agreement shall not be modified or amended except in writing signed by CCM and
the Company. This Agreement shall be binding upon and inure to the
benefit of both CCM and the Company and their respective assigns, successors,
and legal representatives. This Agreement (along with the NDA, if
any) constitutes the entire agreement of CCM and the Company, and supersedes any
prior agreements, with respect to the subject matter hereof. If any
provision of this Agreement is determined to be invalid or unenforceable in any
respect, such determination will not affect such provision in any other respect,
and the remainder of the Agreement shall remain in full force and
effect. This Agreement may be executed in counterparts (including
facsimile and .pdf counterparts), each of which shall be deemed an original but
all of which together shall constitute one and the same instrument.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
3
In
acknowledgment that the foregoing correctly sets forth the understanding reached
by CCM and the Company, please sign in the space provided below, whereupon this
letter shall constitute a binding Agreement as of the date indicated
above.
|
Very
truly yours,
|
||||||
|
CHARDAN
CAPTIAL MARKETS LLC
|
||||||
|
By:
|
|
|||||
|
Name:
|
||||||
|
Title:
|
||||||
|
Accepted
and Agreed to as of
|
||||||
|
the
date first written above:
|
||||||
|
ORIGIN
AGRITECH LIMITED
|
||||||
|
By:
|
|
|||||
|
Name:
|
||||||
|
Title:
|
||||||
4
