NOTES
REPURCHASE AGREEMENT
This
NOTES REPURCHASE AGREEMENT (this “Agreement”)
dated
as of July 28,
2008 is
made by and between Origin Agritech Ltd., a company organized and existing
under
the laws of the British Virgin Islands (the “Company”)
and
Citadel Equity Fund Ltd. (the “Seller”).
RECITALS:
WHEREAS,
the
Company has issued to the Seller, and the Seller has purchased from the Company,
the Company’s 1% Guaranteed Senior Secured Convertible Notes due 2012 of
US$100,000 principal amount each in an aggregate principal amount of
US$40,000,000 (the “Notes”)
pursuant to that certain Notes Purchase Agreement dated July 25, 2007 by and
among, inter
alia,
the
Company and the Seller.
WHEREAS,
in
connection with such transaction, an Indenture dated July 25, 2007 (the
“Indenture”)
was
entered into by and among, inter
alia,
the
Company, The Bank of New York (the “Trustee”)
and
State Harvest Holdings Limited (the “Guarantor”). Capitalized terms that are not
otherwise defined in this Agreement shall have the meanings ascribed to them
in
the Indenture or other relevant Transaction Documents, as applicable.
WHEREAS,
the
Company now wishes to repurchase from the Seller, and the Seller wishes to
sell
to the Company, Notes, each of US$100,000 principal amount, in an aggregate
principal amount of US$18,700,000 (the “Repurchased
Notes”)
upon
the terms and conditions set forth in this Agreement.
NOW
THEREFORE,
in
consideration of the foregoing and the mutual promises, covenants and agreements
of the parties contained herein, the parties hereto agree as
follows:
| 1. |
NOTES
REPURCHASE; PAYMENT
|
1.1 Repurchase
and Sale of the Repurchased Notes. The
parties agree that the Company shall repurchase the Repurchased Notes from
the
Seller in two (2) installments. At the first closing (the “First
Closing”),
the
Company shall repurchase from the Seller and the Seller shall sell to the
Company Repurchased Notes in an aggregate principal amount of US$14,000,000
for
an aggregate purchase price of US$15,000,000. At the second closing (the
“Second
Closing”),
the
Company shall repurchase from the Seller and the Seller shall sell to the
Company Repurchased Notes in an aggregate principal amount of US$4,700,000
for
an aggregate purchase price of US$5,000,000 (together with the purchase price
paid at the First Closing, the “Repurchase
Price”).
Notwithstanding any terms of this Agreement, the Seller shall be entitled to
all
rights and privileges in respect of the Repurchased Notes as a noteholder up
to
the First Closing Date or the Second Closing Date (each as defined below),
as
the case may be, including, without limitation, the right to receive any
Interest payable on the Repurchased Notes in respect of any Record Date prior
to
the First Closing Date or the Second Closing Date, as applicable. For the
avoidance of doubt, except as provided in the preceding sentence, the Seller
shall not be entitled to any accrued and unpaid Interest on the Repurchased
Notes.
1.2 Closing. The
First
Closing shall occur at the Beijing office of Milbank, Tweed, Hadley & McCloy
LLP, or at such other place as the Company and the Seller shall mutually agree,
on the date that falls three (3) business days after the date hereof, or if
later, the third business day following the satisfaction of all of the
conditions set forth in Section 8 (the “First