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CALCULATION
OF REGISTRATION FEE
Title of Securities to be Registered
Amount to be Registered
(1)(2)
Proposed
Maximum
Offering
Price per
Share (3)
Proposed Maximum
Aggregate Offering
Price (3)
Amount of
Registration Fee
Common
Stock, $0.001 par value per share
1,000,000
shares
$
5.03
$
5,030,000
$
359(4)
(1)
The
amount to be registered represents (i) 1,000,000 shares of the
Company’s common stock underlying options to be granted under the Deyu
Agriculture Corp. 2010 Share Incentive Plan.
(2)
This
Registration Statement also covers an indeterminate number of shares of
Common Stock which may be issuable by reason of stock splits, stock
dividends or similar transactions pursuant to Rule 416 of the
Securities Act of 1933, as amended.
(3)
Estimated
in accordance with Rule 457(c) and (h) under the Securities Act of
1933, as amended, solely for the purpose of calculating the total
registration fee. Computation based upon the average of the high and
low prices of the Company’s common stock as quoted on the OTCBB on
November 3, 2010.
(4)
Previously
paid.
2
EXPLANATORY
NOTE
Deyu
Agriculture Corp. (the “Registrant”) has
filed this Post-Effective Amendment No. 1 to its Registration Statement on Form
S-8 in order to re-file as Exhibit 99.1 the Deyu Agriculture Corp. 2010 Share
Incentive Plan to correct a scrivener’s error. The Registrant filed
the original Registration Statement on Form S-8 to register under the Securities
Act of 1933, as amended (the “Securities Act”), the
offer and sale of 1,000,000 shares of common stock
of the Registrant, par value $0.001 per share (the “Common Stock”)
underlying options to be granted by the Registrant under the Deyu Agriculture
Corp. 2010 Share Incentive Plan (the “Plan”). On
November 4, 2010, the Board of Directors of the Registrant approved the Plan
attached hereto as Exhibit 99.1, and with the exception of the re-filing of such
Exhibit and the inclusion of the Registrant’s Quarterly Report on Form 10-Q
filed with U.S. Securities and Exchange Commission (the “Commission”) on
November 15, 2010 and the Registrant’s Current Report on Form 8-K filed with the
Commission on November 17, 2010 in Item 3 below, all other items in this
Registration Statement remain unchanged.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(A) PROSPECTUS
The
document(s) containing the information required by Part I of Form S-8 will be
sent or given to employees as specified by Rule 428(b)(1) under the Securities
Act. Such documents need not be filed with the U.S. Securities and
Exchange Commission (the “Commission”), either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of Form S-8, 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
The
following documents filed by the Registrant with Commission are incorporated
herein by reference:
·
The
Registrant’s Prospectus filed with the Commission on October 26, 2010
pursuant to 424(b) under the Securities Act (Registration No. 333-167527)
which contains the Registrant’s audited consolidated financial statements
for the fiscal year ended December 31, 2009 (the "Prospectus");
·
The
Registrant’s Current Report on Form 8-K as filed with the Commission
on May 3, 2010;
·
The
Registrant’s Current Report on Form 8-K as filed with the
Commission on May 11, 2010;
·
The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2010 as filed with the Commission on May 17,2010;
·
The
Registrant’s Amendment No. 1 to its Current Report on Form 8-K/A as
filed with the Commission on May 25,2010;
·
The
Registrant’s Current Report on Form 8-K as filed with the
Commission on June 4, 2010;
The
Registrant’s Current Report on Form 8-K as filed with the
Commission on June 23, 2010;
·
The
Registrant’s Amendment No. 1 to its Current Report on
Form 8-K/A as filed with the Commission on July 6,2010;
·
The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended
June 30, 2010, as filed with the Commission on August 16,2010;
·
The
Registrant’s Current Report on Form 8-K as filed with the
Commission (with respect to Items 5.02, 5.05, 8.01 and 9.01) on August 23,2010;
·
The
Registrant’s Current Report on Form 8-K as filed with the
Commission (other than information furnished pursuant to Item 7.01
thereof) on August 23, 2010;
·
The
Registrant’s Amendment No. 2 to its Current Report on
Form 8-K/A as filed with the Commission on September 21,2010;
·
The
Registrant’s Current Report on Form 8-K as filed with the Commission
on October 6, 2010;
·
The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2010, as filed with the Commission on November 15,2010;
·
The
Registrant’s Current Report on Form 8-K as filed with the Commission
on November 17, 2010; and
·
All
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year ended December 31,2009.
The
Registrant incorporates by reference the documents listed above and any
documents subsequently filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)
prior to the filing of a post-effective amendment, except for information
furnished under Item 7.01 of Form 8-K, which is not deemed filed and
not incorporated by reference herein, 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 the Registration
Statement and to be part thereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement.
Any such 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.
Authorized
Capital Stock
Our
authorized stock consists of 85,000,000 shares: 75,000,000 shares of Common
Stock, par value $0.001 per share, and 10,000,000 shares of preferred stock, par
value $0.001 per share. The following summary description relating to our
capital stock does not purport to be complete. All capitalized terms not defined
herein have the meanings set forth in the Prospectus.
4
Common
Stock
Holders
of Common Stock are entitled to cast one vote for each share on all matters
submitted to a vote of shareholders, including the election of directors. The
holders of Common Stock are entitled to receive ratably such dividends, if any,
as may be declared by the Board out of funds legally available therefore. See
“Dividend Policy” below. Such holders do not have any preemptive or other rights
to subscribe for additional shares. All holders of our Common Stock are entitled
to share ratably in any assets for distribution to shareholders upon the
liquidation, dissolution or winding up. There are no conversion, redemption or
sinking fund provisions applicable to the Common Stock. All outstanding shares
of Common Stock are fully paid and non-assessable. Our Board of Directors
is not classified. Also, holders of Common Stock do not have preemption
rights, liability for further calls or to assessment by the registrant, any
restriction on alienability of the securities to be registered, or any provision
discriminating against any existing or prospective holder of such
securities.
The
rights of the shareholders may not be modified other than by a vote of a
majority of the shares outstanding, voting as a class.
Series
A Convertible Preferred Stock
The
holders of Series A convertible preferred stock (the “Series A Preferred”)
will be entitled to receive cumulative preferred share original purchase price
(the “Dividend
Preference” and the “Dividends”).
If, after the Dividend Preference has been fully paid or declared and set apart,
the we shall make any additional distributions, then the holders of Series A
Preferred shall participate with the holders of Common Stock on an as-converted
basis with respect to such distributions. Dividends will be payable in cash or
stock, at our option.
Upon any
liquidation, dissolution or winding up, the holders of Series A Preferred will
be entitled to receive, out of our assets available for distribution to its
stockholders, an amount equal to $4.40 per share (the amount, the “Liquidation Preference
Amount”), before any payment shall be made or any assets distributed to
the holders of the Common Stock (the “Liquidation
Preference”).
Each
holder of Series A Preferred will have the right, at the option of the holder at
any time on or after the issuance of the Series A Preferred, without the payment
of additional consideration, to convert Series A Preferred into a number of
fully paid and non-assessable shares of Common Stock equal to: (i) the
Liquidation Preference Amount of such share divided by (ii) the conversion price
in effect as of the date of the conversion.
For a
period of two (2) years following the issuance of the Series A Preferred, the
conversion price of Series A Preferred will be subject to adjustment for
issuances of Common Stock (or securities convertible or exchangeable into shares
of Common Stock) at a purchase price less than the conversion price of the
Series A Preferred.
The
Series A Preferred do not contain any repurchase or redemption
rights.
The
summary of the Series A Preferred above is qualified in its entirety by
reference to the form of Certificate of Designation referenced hereto as
Exhibit 4.1.
The
Series A Warrants
There are
982,362 Series A Warrants outstanding which were sold together with the Series A
Preferred, which:
(a)
entitle
the holder to purchase one (1) share of Common
Stock;
(b)
are
exercisable at any time after consummation of the transactions
contemplated by the Securities Purchase Agreement and shall expire on the
date that is five years following the original issuance date of the Series
A Warrants;
(c)
are
exercisable, in whole or in part, at an exercise price of $5.06 per share
of Common Stock; and
(d)
are
exercisable only for cash (except that there will be a cashless exercise
option if, after twelve months from the Issue Date, (i) the Per Share
Market Value of one share of Common Stock is greater than the Warrant
Price (at the date of calculation) and (ii) a registration statement under
the Securities Act providing for the resale of the Common Stock issuable
upon exercise of Warrant Shares is not in effect, in lieu of exercising
this Warrant by payment of cash).
5
The
summary of the Series A Warrants above is qualified in its entirety by reference
to the form of Series A Warrant referenced hereto as Exhibit 4.2.
Dividend
Policy
We have
not paid cash dividends on any class of common equity since formation and we do
not anticipate paying any dividends on our outstanding Common Stock in the
foreseeable future. We plan to retain any earnings to finance the development of
the business and for general corporate purposes.
Nevada
Anti-Takeover Laws and our Corporate Policy
Nevada
Revised Statutes sections 78.378 to 78.379 provide state regulation over the
acquisition of a controlling interest in certain Nevada corporations unless the
articles of incorporation or bylaws of the corporation provide that the
provisions of these sections do not apply. Our articles of incorporation and
bylaws do not state that these provisions do not apply. The statute creates a
number of restrictions on the ability of a person or entity to acquire control
of a Nevada corporation by setting down certain rules of conduct and voting
restrictions in any acquisition attempt, among other things. The statute is
limited to corporations that are organized in the state of Nevada and that have
200 or more stockholders, at least 100 of whom are stockholders of record and
residents of the State of Nevada; and does business in the State of Nevada
directly or through an affiliated corporation. Because of these conditions, the
statute currently does not apply to us.
The
anti-takeover provisions of Sections 78.411 through 78.445 of the Nevada
Corporation Law apply to our Company. Section 78.438 of the Nevada law prohibits
companies from merging with or selling more than 5% of its assets or stock to
any shareholder who owns or owned more than 10% of any stock or any entity
related to a 10% shareholder for three years after the date on which the
shareholder acquired the shares, unless the transaction is approved by the our
Board. The provisions also prohibit companies from completing any of the
transactions described in the preceding sentence with a 10% shareholder who has
held the shares more than three years and its related entities unless the
transaction is approved by our Board or a majority of our shares, other than
shares owned by that 10% shareholder or any related entity. These provisions
could delay, defer or prevent a change in control of our Company.
Indemnification and limitation of
liability. Under the terms of our
articles of incorporation and bylaws, we will indemnify our officers, directors,
employees, and agents against all liabilities and expenses actually and
reasonably incurred in connection with service for or on behalf of the
corporation to the fullest extent allowed by Chapter 78 of the Nevada Revised
Statutes, unless it is ultimately determined by a court of competent
jurisdiction that (i) they failed to act in a manner they believed in good faith
to be in, or not opposed to, the best interests of the corporation, and (ii)
with respect to any criminal proceeding, had reasonable cause to believe their
conduct was lawful. In addition, the applicable provisions mandate that we
indemnify our officers and directors who have been successful on the merits or
otherwise in the defense of any such action, suit, or proceeding against
expenses (including attorneys' fees) actually and reasonably incurred by them in
connection with such defense. The Articles also eliminate, to the fullest extent
permitted by Nevada law, the liability of directors and officers to the
corporation or our stockholders for monetary or other damages for breach of
fiduciary duties as a director or officer.
Item
5. Interests of Named Experts and Counsel.
Not
Applicable.
6
Item 6. Indemnification of
Directors and Officers.
Nevada
Revised Statute 78.037 permits a corporation to eliminate or limit the personal
liability of a director or officer to the corporation or its stockholders for
damages relating to breach of fiduciary duty as a director or officer, but such
a provision must not eliminate or limit the liability of a director or officer
for (a) acts or omissions which involve intentional misconduct, fraud or a
knowing violation of law or (b) the payment of distributions in violation of
Nevada Revised Statute 78.300.
Nevada
Revised Statutes 78.7502 provides as follows with respect to indemnification of
directors, officers, employees and agents:
(a)
We
may indemnify any person who was or is a party or is threatened to be made
a party to any action, except an action by us, by reason of the fact that
he is or was our director, officer, employee or agent, or is or was
serving as a director, officer, employee or agent of any other person at
our request, against expenses actually and reasonably incurred by him in
connection with the action, suit or proceeding if he: (i) is not liable
for breach of his fiduciary duties as a director or officer pursuant to
Nevada Revised Statutes 78.138; and (ii) acted in good faith and in a
manner which he reasonably believed to be in or not opposed to our best
interests and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was
unlawful.
(b)
We
may indemnify any person who was or is a party or is threatened to be made
a party to any action by us, by reason of the fact that he is or was our
director, officer, employee or agent, or is or was serving as a director,
officer, employee or agent of any other person at our request, against
expenses actually and reasonably incurred by him in connection with the
defense or settlement of the action or suit if he: (i) is not liable for
breach of his fiduciary duties pursuant to Nevada Revised Statutes 78.138;
and (ii) acted in good faith and in a manner which he reasonably believed
to be in or not opposed to our best interest. We may not indemnify
him for any claim, issue or matter as to which he has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to us or for amounts paid in settlement to us,
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, he is
fairly and reasonably entitled to indemnity for such expenses as the court
deems proper.
(c)
To
the extent that our director, officer, employee or agent has been
successful on the merits or otherwise in defense of any action, suit or
proceeding, or in defense of any claim, issue or matter therein, we are
required to indemnify him against expenses, including attorneys’ fees
actually and reasonably incurred by him in connection with the
defense.
Our
articles of incorporation and bylaws provide for elimination of any liability of
our directors and officers and indemnity of our directors and officers to the
fullest extent permitted by Nevada law.
The
above-described provisions relating to the exclusion of liability and
indemnification of directors and officers are sufficiently broad to permit the
indemnification of such persons in certain circumstances against liabilities
arising under the Securities Act. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to our directors
and officers and to persons controlling us pursuant to the foregoing provisions,
we have 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.
See Index
to Exhibits.
7
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; 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) 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 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
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 this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, 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 of 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.
8
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, The People’s Republic of China, on this 7th day
of December, 2010.
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 dates
indicated.
Name
Title
Date
/s/
*
Chief
Executive Officer and Chairman of the Board (Principal
