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EXHIBIT 10
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OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
THIS OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT is executed in reliance
upon the transaction exemption afforded by Regulation S ("Regulation S") as
promulgated by the Securities and Exchange Commission ("SEC"), under the
Securities Act of 1933, as amended ("1933 Act").
THIS AGREEMENT has been executed by the undersigned in connection with
the offer to the Purchaser (as hereinafter identified and defined) of 1,000,000
shares of Common Stock (hereinafter referred to as the "Shares") of KRANTOR
CORPORATION located at 000 Xxxx Xxxxxxxx Xxxxx, Xxxx Xxxx, XX 00000; a
corporation organized under the laws of Delaware, United States of America
(hereinafter referred to as "Company"). The undersigned XXXXX XXXXX SEAFOOD
LTD., a corporation organized under the laws of PRC China Republic jurisdiction
(hereinafter referred to as "Purchaser") located at , hereby represents and
warrants to, and agrees with Company as follows:
1. AGREEMENT TO SUBSCRIBE; PURCHASE PRICE
a. CONSIDERATION. The undersigned hereby subscribes for 1,000,000
Shares (the "Shares") of the Common Stock of the Company in exchange for sale to
the Company by Purchaser of 100,000 pounds of Loligo squid 75/25 tubes/tentacles
no less then 3/5 AND 5/8 inch packed under TENDA brand 2.5 lbs by 20 trays [50
lb case] (hereinafter the "Goods") as per the purchase order attached hereto as
an Exhibit in full satisfaction of the price therefor hereby acknowledged to be
$125,000.
b. FORM OF PAYMENT. Purchaser shall deliver the Goods to the Company
against issuance of the Shares.
2. ACCEPTANCE OF SUBSCRIPTION
a. This subscription may be accepted or rejected by the Company at its
sole discretion.
b. This subscription shall be deemed accepted only when this Agreement
is signed by the Company in the space provided on the signature page hereof.
c. If the Company receives subscriptions from multiple subscribers, it
has no obligation to accept subscriptions in the order received.
3. PURCHASER REPRESENTATIONS AND WARRANTIES
a. Offshore Transaction. Purchaser hereby represents and warrants to
the Company as of the date hereof and as of the Closing Date as follows:
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(i) If the Purchaser is a corporation, it is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and if the Purchaser is a
partnership or other organization, it is duly organized, validly
existing and in good standing under the laws of its jurisdiction
of organization.
(ii) (a) If the Purchaser is a corporation, the execution,
delivery and performance of this Agreement has been duly
authorized by all necessary corporate action, (b) if the
Purchaser is a partnership or other organization, the other
governing documents to enter into this Agreement and to
consummate the transactions contemplated hereby and all necessary
consents and approvals required by the partnership agreement or
other governing documents have been obtained, and (c) this
Agreement constitutes a legal, valid and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance
with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights
generally.
(iii) The Purchaser did not receive any offer to purchase the
Shares in the United States. This Agreement has not been executed
by the Purchaser in the United States.
(iv) The Purchaser is not a "U.S. person," as defined by Rule
902(o) of Regulation S (a "U.S. Person"), promulgated under the
US Federal Securities Act of 1933, as amended (the "1933 Act")
and as set forth in Schedule A attached hereto, and is not
acquiring the Shares, directly or indirectly, for the account or
benefit of any U.S. Person.
(v) The Purchaser (a) has received a copy of the Disclosure
Documents (as hereinafter defined) and has carefully reviewed and
understands the Disclosure Documents and this Agreement and (b)
understands that, except as set forth in the Disclosure Documents
and in this Agreement, no representations or warranties have been
made to the Purchaser by the Company nor by any distributor, nor
by any of their officers, directors, employees, agents or
affiliates, and (c) agrees that, in connection with the purchase
of the Shares, it is not relying upon any information concerning
the Company, other than (i) that contained in the Disclosure
Documents and in this Agreement and (ii) on the results of its
own independent investigations. The term "Disclosure Documents "
shall mean (a) the Company's latest Annual Report to Shareholders
on Form 10-K (without exhibits), (b) the Company's Quarterly
Reports on Form 10-Q and Form 8-K thereafter, and (c) copies of
the Company's significant press releases issued after said Annual
Report.
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(vi) The Purchaser understands that (a) no governmental authority
has passed upon the accuracy or completeness of the Disclosure
Documents or has made any finding or determination concerning the
appropriateness or suitability of an investment in the Shares and
(b) no governmental authority has recommended or endorsed, or
will recommend or endorse, the Investment in the Shares.
(vii) The Purchaser is not purchasing the Shares with a view to
the distribution thereof within the meaning of the 1933 Act.
(viii) The Purchaser will not engage in any transaction or series
of transactions that, although in technical compliance with
Regulation S, is part of a plan or scheme to evade the
registration requirements of the 1933 Act with respect to the
Shares.
(ix) All subsequent offers and sales of the Shares by Purchaser
shall be made in compliance with Regulation S under the
Securities Act, pursuant to registration under the Securities Act
or pursuant to an exemption from such registration. In any case,
the Shares shall not be resold to U.S. persons or within the
United States during the period of forty (40) days commencing on
the date of the Closing of the purchase of the Shares;
(x) Purchaser understands that the Shares are being offered and
sold to it in reliance of specific exemptions from the
registration requirements of Federal and State securities laws
and that the Company is relying upon the acknowledgements and
understandings of Purchaser set forth herein, in order to
determine the applicability of such exemptions and the
suitability of Purchaser to acquire the Shares.
(xi) Purchaser agrees to indemnify and hold the Company, its
respective officers, directors and shareholders or any other
person who may be deemed to control the Company harmless from any
loss, liability, claim, damage or expense, arising out of the
inaccuracy of any of Purchaser's representations, warranties or
statements or the breach of any of the agreements contained
herein.
4. LIMITATIONS OR TRANSFER AND CERTAIN COVENANTS
a. The Purchaser acknowledges that (i) the Shares have not been
registered under the 1933 Act in reliance on provisions of Rule 903 or Rule 904
of Regulation S nor have the Shares been registered or qualified for sale under
the laws of any other jurisdiction (either within or outside of the United
States) and (ii) the Company has no obligations hereunder to nor any current
intention to effect any such registration or qualification.
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b. The Purchaser covenants and agrees that it will not sell the Shares
in the United States, or to a U.S. Person, or for the account or benefit of a
U.S. Person, prior to the expiration of a period of 40 days following the
Closing Date ("Restricted Period") and thereafter only in accord with any
exemptions from registration allowed under the relevant laws of the United
States if the Shares are not registered.
c. The Purchaser acknowledges that the certificates evidencing the
Shares will bear the following legend:
"These shares have been issued pursuant to Regulation S as an
exemption to the registration provisions under the Securities Act
of 1933, as amended. These shares cannot be transferred, offered
or sold in the U.S. or to U.S. persons (as defined in Regulation
S) until after March 31, 1997 Forty-one days after issuance and
thereafter only in accord with applicable U.S. regulations if not
registered)."
The Company covenants and agrees that following the expiration of the
Restricted Period it will advise the transfer agent for the Common Stock, upon
the request of a record holder of the Shares, that the foregoing legend can be
removed from the certificate for the Shares. However Purchaser acknowledges the
necessity for sale only in accord with exemptions from registration if and when
available, if the Shares are not registered.
d. The Purchaser represents and warrants to the Company that, as of the
date hereof and as of the closing Date, neither it nor any of its affiliates
has, and covenants that during the Restricted Period neither it nor any of its
affiliates will establish or maintain, any short position (including any short
call position or any long put position) with respect to the Common Stock of the
Company, and that no such person or entity is a party to, nor shall it enter
into during the Restricted Period, any contract or arrangement having the effect
eliminating or substantially diminishing the risk of ownership of the Shares.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser, as of the date
hereof and as of the Closing Date, that:
a. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation.
b. (i) The execution, delivery and performance of this Agreement has
been duly authorized by all necessary corporate action and this Agreement
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
generally.
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c. The execution, delivery and performance of this Agreement does and
will not (i) violate any provision of the Company's Certificate of Incorporation
or By-laws, (ii) violate or breach any material contract or agreement to which
the Company is a party, (iii) result in the creation of any lien, security
interest, charge or encumbrance on any property or assets of the Company, or
(iv) require the authorization, consent or approval of any court or any
administrative or governmental body pursuant to any law, statute, rule or
regulation to which the Company is subject or to any order, judgment or decree
by which the Company is bound.
d. When issued in accordance with the terms of this Agreement, the
Shares:
(i) except for the Regulation S legend provided in this Agreement,
will be free and clear of any restrictions, liens, claims or other
encumbrances by the Company (other than those that may arise by reason
of any action or inaction of the Purchaser);
(ii) will be duly authorized, validly issued, fully paid and
nonassessable;
(iii) will not have been issued or sold in violation of any preemptive
or other similar rights of the holders of any securities of the
Company; and
(iv) will not subject the holders thereof to personal liability to the
Company solely by reason of their ownership of such Shares.
e. The Company is a "Reporting Issuer" as defined by Rule 902(l) of
Regulation S. The Company is in full compliance, to the extent applicable, with
all reporting obligations under either Section 12(b), 12(g) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Common
Stock trades on {NASDAQ} and its trading symbol is KRAN.
f. Company has not offered the securities which are the subject of this
transaction to any person in the United States, any identifiable groups of U.S.
citizens abroad, or to any U.S. Person as that term is defined in Regulation S.
g. At the time the buy order was originated, Company and/or its agents
reasonably believed Purchaser was outside of the United States and was not a
U.S. person.
h. Company and/or its agents reasonably believe that the transaction
has not been pre-arranged with a buyer in the United States.
i. In regard to this transaction, Company has not conducted any
"directed selling efforts"' as that term is defined in Rule 902 of Regulation S
nor has Company conducted any general solicitation relating to the offer and
sale of the securities which are the subject of this transaction to persons
resident within the United States or elsewhere.
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Each of the foregoing representations and warranties shall survive the
Closing.
6. REMEDIES
In the event of a breach by the Purchaser of any of the
representations, warranties or covenants contained in this Agreement, and
without limitations of any other remedy available to the Company at law or in
equity, the Company shall have the right and the option to rescind the sale of
the Shares to the Purchaser. In such case, the amount payable to the Purchaser
upon rescission will be the aggregate Purchase Price, less all expenses, costs
and damages incurred by the Company, which shall be returned to the Purchaser,
and whereupon the Company shall have no further liability or obligation to the
Purchaser under this Agreement or otherwise.
7. ASSIGNABILITY
Neither this Agreement, nor the rights or obligations of either party
hereunder, may be transferred or assigned without the prior written consent of
the other party (which may be withheld for any reason in the sole discretion of
the party required to provide such consent) and any purported transfer or
assignment not so consented to shall be void. This Agreement shall be binding on
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
8. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and there are no
representations, warranties, covenants or other agreements of either party
except as stated herein.
9. AMENDMENTS
No provision of this Agreement shall be waived, discharged or amended,
except by an instrument in writing signed by the party against whom any such
waiver, modification, discharge or amendment is sought.
10. WAIVERS
No waiver by either party of any default with respect to any provision,
condition or requirements of this Agreement shall be deemed to be a waiver of
any future default with respect to the same provision, condition or requirement,
or a waiver of any other provision, condition or requirement hereof. No delay or
omission of either party to exercise any right hereunder shall in any manner
impair the exercise of such right at any future time.
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11. APPLICABLE LAW
This Agreement shall be construed in accordance with and governed by
the laws of the State of New York without regard to the conflicts of laws
principles thereof.
12. SEVERABILITY
Each provision of this Agreement shall be considered severable and if
for any reason any provision which is not essential to the effectuation of the
basic purposes of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, or contrary to existing or future
applicable law, such invalidity shall not impair the operation of or affect
those provisions of this Agreement which are valid. In such case, this Agreement
shall be construed so to as to limit any term or provision so as to make it
enforceable or valid within the requirements of any applicable law, and in the
event such term or provision cannot be so limited, this Agreement shall be
construed to omit such invalid or unenforceable provision.
13. FAX SIGNATURES AND COUNTERPARTS
This Agreement may be executed in any number of counterparts, including
counterparts transmitted by telecopier or FAX, any one of which shall constitute
an original of this Agreement. When counterparts of facsimile copies have been
executed by all parties, they shall have the same effect as if the signature to
each counterpart or copy were upon the same document and copies of such
documents shall be deemed valid as originals. The parties agree that all such
signatures may be transferred to a single document upon the request of any
party.
14. NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be effective (a) upon hand delivery or
delivery by telecopy or facsimile at the address or number designated below (if
delivery on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
If to the Company: Xxxxx X. Xxxxxx, Xx.
President
Krantor Corporation
000 Xxxx Xxxxxxxx Xx.
Xxxx Xxxx, XX 00000
If to the Purchaser, as set forth on the signature page hereof.
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Either party hereto may from time to time change its address for
notices under this Section 14 by giving at least 10 days written notice of such
changed address to the other party hereto.
15. HEADINGS
The headings herein are for convenience of reference only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
the interpretation of any of the provisions hereof.
16. NO THIRD PARTY BENEFICIARIES
This Agreement is intended for the benefit of the parties hereto and
their respective successors and permitted assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.
17. FEES AND EXPENSES
Each party shall pay for the fees and expenses of its own advisers,
counsel, accountants and other experts, if any, and all other expenses incurred
by such party incident to the negotiation, preparation, execution and delivery
and performance of this Agreement.
18. CONSENT TO JURISDICTION
Each of the Company and th Purchaser (i) hereby irrevocably submits to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York or of any New York State Court sitting in New York
City for the purposes of any suit, action or proceeding arising out of or
relating to this Agreement, and (ii) hereby waives, and agrees not to assert in
any such suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of such court, that the suit, action or proceeding is
brought in an inconvenient forum or that the venue of the suit, action or
proceeding is importer. Each of the Company and the Purchaser consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this paragraph shall affect or
limit any right to serve process in any other manner permitted by law.
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IN WITNESS WHEREOF, the undersigned has caused this Offshore Securities
Subscription Agreement to be executed by a duly authorized officer.
XXXXX XXXXX SEAFOOD LTD.
Name of Purchaser
/s/ Xxx Xxx
By:-------------------------------------
NAME: Xxx Xxx
ACCEPTED:
KRANTOR CORPORATION
Address:
/s/ Xxxxx Xxxxxx, Xx. Pres. Xxxxx Xxxxx Wharf
By:------------------------------- Behai, PRC
Xxxxx Xxxxxx, Xx., Pres.
Date: February 10, 1997
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SCHEDULE A
CATEGORIES OF U.S. PERSONS
1. Any natural person resident in the United States;
2. Any partnership or corporation organized or incorporated under the laws of
the United States;
3. Any estate of which any executor or administrator is a U.S. person;
4. Any trust of which any trustee is a U.S. person;
5. Any agency or branch of a foreign entity located in the U.S.;
6. Any non-discretionary account or similar account (other than estate or trust)
held by a dealer or other fiduciary for the benefit or account of a U.S. person;
7. Any partnership or corporation if: (A) organized or incorporated under the
laws of any foreign jurisdiction; and (B) formed by a U.S. person principally
for the purpose of investment in securities not registered under the Act, unless
it is organized or incorporated, and owned, by accredited investors (as defined
in Rule 501[a]) who are not natural persons, estates or trusts.
8. Any employee benefit plan established and administered in accordance with the
law of a county other than the United States and customary practices and
documentation of such country shall not be deemed a U.S. person.
9. Any agency or branch of a U.S. person located outside the United States shall
not be deemed a "U.S. person" if :
theagency or branch operates for valid business reasons: and the agency
or branch is engaged in the business of insurance or banking and is
subject to substantive insurance or banking regulation, respectively,
in the jurisdiction where located.
10. The International Monetary Fund, the International Bank for Reconstruction
and Development, the Inter-American Development Bank, the Asian Development
Bank, the African Development Bank, the United States, and their agencies,
affiliates and pension plans, and any other similar international organizations,
their agencies, affiliates and pension plans shall not be deemed "U.S. persons."
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PURCHASE ORDER KRANTOR CORPORATION
000 XXXX XXXXXXXX XXXXX
XXXX XXXX, XX 00000
000-000-0000
P.O. KRANTOR
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TO: XXXXX XXXXX SEAFOOD, LTD. C&F IF DIFFERENT ADDRESS:
XXXXX XXXXX WHARF NYC PORT
BEHAI, PRC
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P.O. DATE PLACED BY DATE EXPECTED SHIP VIA C&F TERMS
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FEB 10, 1997 XXXX XXXXXXX 3/31/97 SEALAND NYC PORT PAYABLE IN
KRANTOR STOCK
1,000,000
SHARES
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QTY. DESCRIPTION UNIT PRICE TOTAL
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100,000 LBS LOLOGO SQUID 75/25 TUBES/TENTACLES 1.25 125,000.00
ASSORTED SIZES
3/5 INCH 2.5 LBS. X 20
TENDA BRAND 0
5/8 INCH 2.5 X 20
TENDA BRAND 0
SUBTOTAL 125,000.00
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TOTAL DUE $125,000.00
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/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Authorized Signature
KRANTOR CORPORATION
/s/ Xxx Xxx
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Xxx Xxx
Authorized Signature
XXXXX XXXXX SEAFOOD LTD.
17
