Re: Subscription Agreement
Date:
October 14, 2008
No.
9
Yanyu Middle Road
Qianzhou
Village, Huishan District, Wuxi City
Jiangsu
Province, People’s Republic of China
Ladies
and Gentlemen:
The
undersigned (the “Subscriber”) hereby subscribes for the number of Shares (the
“Shares”) of common stock, par value $.001 per share (“Common Stock”), of China
Wind Systems, Inc., a Delaware corporation (the “Company”), as are set forth on
the signature page of this Agreement, at a purchase price of $0.60 per share.
The total purchase price for the Shares is set forth on the signature page
of
this Agreement.
1. The
Company represents and warrants to the Subscriber that the issuance of the
Shares has been duly authorized and reserved for issuance and when issued
pursuant to this Agreement upon payment of the purchase price of the Shares,
will be validly issued, fully paid and non-assessable.
2. The
Company is offering 3,500,000 shares of Common Stock at a purchase price of
$0.60 per share on a best efforts basis, with no minimum number of Shares being
sold. As a result, the Subscriber understands that it is possible that the
Company will not receive any proceeds from the sale of Shares other than the
purchase price of the Shares previously sold by the Company and the purchase
price of the Shares being purchased by the Subscriber. The payment of the
purchase price shall be made by wire transfer to the Company in accordance
with
the wire transfer instructions set forth in Exhibit A to this Agreement, and
the
Company will have the Shares issued as soon as practical
thereafter.
3. The
Subscriber hereby represents, warrants, covenants and agrees as
follows:
(a) The
Subscriber understands that the offer and sale of the Shares is being made
only
by means of this Agreement. The Subscriber understands that the Company has
not
authorized the use of, and the Subscriber confirms that he is not relying upon,
any other information, written or oral, other than material contained in this
Agreement and in material that has been publicly filed with the Securities
and
Exchange Commission (the “Commission”). The
Subscriber is aware that the purchase of the Shares involves a high degree
of
risk and that the Subscriber may sustain, and has the financial ability to
sustain, the loss of her entire investment, understands that no assurance can
be
given that the Company will be profitable in the future, that the Company may
need additional financing and that the failure of the Company to raise
additional funds when required may have a material adverse effect upon its
business. Furthermore,
in subscribing for the Shares, the Subscriber acknowledges that he or she is
not
relying upon any projections or any statements of any kind relating to future
revenue, earnings, operations or cash flow in purchasing the
Shares.
(b) The
Subscriber represents to the Company that the Subscriber is an accredited
investor within the meaning of Rule 501 of the Commission under the Securities
Act and she understands the meaning of the term “accredited investor.” The
Subscriber further represents that the Subscriber has such knowledge and
experience in financial and business matters as to enable the Subscriber to
understand the nature and extent of the risks involved in purchasing the Shares.
The Subscriber is fully aware that such investments can and sometimes do result
in the loss of the entire investment. The Subscriber has engaged her own counsel
and accountants to the extent that she deems it necessary.
1
(c) All
of
the information provided by the Subscriber in his or her Confidential Investor
Questionnaire is true and correct in all material respects.
(d) The
Subscriber is acquiring the Shares pursuant to this Agreement for investment
and
not with a view to the sale or distribution thereof, for the Subscriber’s own
account and not on behalf of others; has not granted any other person any
interest or participation in or right or option to purchase all or any portion
of the Shares; is aware that the Securities are restricted securities within
the
meaning of Rule 144 of the Commission under the Securities Act, and may not
be
sold or otherwise transferred other than pursuant to an effective registration
statement or an exemption from registration; and understands and agrees that
the
certificates for the Shares shall bear the Company’s standard investment legend.
The Subscriber understands the meaning of these restrictions.
(e) The
Subscriber will not transfer any Shares except in compliance with all applicable
federal and state securities laws and regulations, and, in such connection,
the
Company may request an opinion of counsel reasonably acceptable to the Company
as to the availability of any exemption.
(f) The
Subscriber represents and warrants that no broker or finder was involved
directly or indirectly in connection with the Subscriber’s purchase of the
Shares pursuant to this Agreement. The Subscriber shall indemnify the Company
and hold it harmless from and against any manner of loss, liability, damage
or
expense, including fees and expenses of counsel, resulting from a breach of
the
Subscriber’s warranty contained in this Section 3(f).
(g) The
Subscriber understands that she has no registration rights with respect to
the
Shares.
(h) The
Subscriber represents and warrants that the address set forth on the signature
page is his or her true and correct address, and understands that the Company
will rely on this representation in making filings under state securities or
blue sky laws.
(i) The
Subscriber understands that the Company may reject the Subscriber’s subscription
if the Subscriber is not an accredited investor.
4. The
proceeds from the sale of the Shares shall be used for the completion of Phase
I, with the assets being acquired by the WFOE that is engaged the forged
products business.
5. (a)
This
Agreement constitutes the entire agreement between the parties relating to
the
subject matter hereof, superseding any and all prior or contemporaneous oral
and
prior written agreements, understandings and letters of intent. This Agreement
may not be modified or amended nor may any right be waived except by a writing
which expressly refers to this Agreement, states that it is a modification,
amendment or waiver and is signed by all parties with respect to a modification
or amendment or the party granting the waiver with respect to a waiver. No
course of conduct or dealing and no trade custom or usage shall modify any
provisions of this Agreement. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
(b) All
notices provided for in this Agreement shall be in writing signed by the party
giving such notice, and delivered personally or sent by overnight courier,
mail
or messenger against receipt thereof or sent by registered or certified mail,
return receipt requested, or by facsimile transmission or similar means of
communication if receipt is confirmed. Notices shall be deemed to have been
received on the date of delivery or attempted personal delivery if sent by
registered or certified mail, by messenger or by an overnight courier services
which provides evidence of delivery or attempted delivery, of if sent by
telecopier, upon the date of receipt provided that receipt is acknowledge by
the
recipient. Notices shall be sent to the parties at their respective addresses
set forth on the signature page of this Agreement. A copy of any notice to
the
Company shall be sent to Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, 00 Xxxxxxxx,
00xx
xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention Xxxxx X. Xxxxxxxx P.C., telecopier: (000)
000-0000, e-mail: xxxxxxxxx@xxxx.xxx.
Any
party may, by like notice, change the address, person or telecopier number
to
which notice shall be sent.
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2
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(c) This
Agreement shall be governed and construed in accordance with the laws of the
State of New York applicable to agreements executed and to be performed wholly
within such State, without regard to any principles of conflicts of law. Each
of
the parties hereby (i) irrevocably consents and agrees that any legal or
equitable action or proceeding arising under or in connection with this
Agreement may be brought in the federal or state courts located in the County
of
New York in the State of New York, (ii) by execution and delivery of this
Agreement, irrevocably submits to and accepts the jurisdiction of said courts,
(iii) waives any defense that such court is not a convenient forum, and (iv)
consent that any service of process may be made (x) in the manner set forth
in
Section 6(b) of this Agreement (other than by telecopier or e-mail), or (y)
by
any other method of service permitted by law.
(d) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective successors and permitted assigns.
(e) This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
document.
(f) The
representations, warranties and covenants set forth in this Agreement or in
any
other writing delivered in connection therewith shall survive the issuance
of
the Shares.
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Please
confirm your agreement with the foregoing by signing this Agreement where
indicated.
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Very
truly yours,
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Number
of Shares Subscribed for: _______________
|
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|
Total
Purchase Price: $_______________
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[Name
of Subscriber]
|
||
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By:
|
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Name:
Title:
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The
undersigned is an accredited investor pursuant to Item _____
of
Exhibit B.
Address:
Telecopier
Number:
e-mail:
Social
Security or Taxpayer ID No.:
Accepted
this day
of ,
2008
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By:
|
|
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Xxxx
Xxxxxxxxx
|
|
|
Chief
financial officer
|
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4
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Exhibit
A
Wire
Transfer Instructions
|
BANK
CUSTOMER SERVICE PHONE
|
(000)
000-0000 (Domestic)
|
|
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(000)
000-0000 (International)
|
||
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NAME
OF ACCOUNT:
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ABA
#
|
063
000 021
|
|
|
ACCOUNT
#
|
|
2000035488527
|
FOR
INTERNATIONAL WIRES ONLY
SWIFT
CODE: XXXXXX00
A-1
Exhibit
B
A
Subscriber who meets any one of the following tests is an accredited
investor:
(a) The
Subscriber is an individual who has a net worth, or joint net worth with the
Subscriber’s spouse, of at least $1,000,000.
(b) The
Subscriber is an individual who had individual income of more than $200,000
(or
$300,000 jointly with the Subscriber’s spouse) for the past two years, and the
Subscriber has a reasonable expectation of having income of at least $200,000
(or $300,000 jointly with the Subscriber’s spouse) for the current
year.
(c) The
Subscriber is an officer or director of the Company.
(d) The
Subscriber is a bank as defined in section 3(a)(2) of the Securities Act or
any
savings and loan association or other institution as defined in section
3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary
capacity.
(e) The
Subscriber is a broker or dealer registered pursuant to section 15 of the
Securities Exchange Act of 1934.
(f) The
Subscriber is an insurance company as defined in section 2(13) of the Securities
Act.
(g) The
Subscriber is an investment company registered under the Investment Company
Act
of 1940 or a business development company as defined in section 2(a)(48) of
that
Act.
(h) The
Subscriber is a small Business Investment Company licensed by the U.S. Small
Business Administration under section 301(c) or (d) of the Small Business
Investment Act of 1958.
(i) The
Subscriber is an employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, if the investment decision
is
made by a plan fiduciary, as defined in section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with investment decisions made solely
by persons that are accredited investors.
(j) The
Subscriber is a private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940.
(k) The
Subscriber is an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000.
(l) The
Subscriber is a trust, with total assets in excess of $5,000,000, not formed
for
the specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii) of the
Commission under the Securities Act.
B-1
(m) The
Subscriber is an entity in which all of the equity owners are accredited
investors (i.e., all of the equity owners meet one of the tests for an
accredited investor).
If
an
individual investor qualifies as an accredited investor, such individual may
purchase the
Shares
in
the name of his or her individual retirement account (“XXX”).
B-2
