OFFSHORE SUBSCRIPTION AGREEMENT
EXHIBIT
10.1
These securities have not been registered with the United States
Securities and Exchange Commission or the securities commission of any state
because they are believed to be exempt from registration under Regulation D
and/or Regulation S promulgated under the Securities Act of 1933, as amended
(the “Act”). The foregoing authorities have not confirmed the
accuracy or determined the adequacy of this document. Any
representation to the contrary is a criminal offense. This
subscription agreement shall not constitute an offer to sell nor a solicitation
of an offer to buy the securities in any jurisdiction in which such offer or
solicitation would be unlawful.
These
securities are subject to restrictions on transferability and resale and may not
be transferred or resold except as permitted under the Act, and applicable state
securities laws, pursuant to registration or exemption
therefrom. Investors should be aware that they will be required to
bear the financial risks of this investment for an indefinite period of
time. All offers and sales of the herein-described securities by
non-U.S. persons before the expiration of a period commencing on the date of the
closing of this offering and ending one year thereafter shall only be made in
compliance with Regulation S, pursuant to registration under the Act, or
pursuant to an exemption from registration, and all offers and sales after the
expiration of the one-year period shall be made only pursuant to registration or
an exemption from registration. Hedging transactions involving these
securities may not be conducted unless in compliance with the Act.
OFFSHORE SUBSCRIPTION
AGREEMENT
This Offshore Subscription
Agreement (the “Agreement”) is entered into this 15th day of May, 2009 (the
“Effective Date”), by and between China Fruits Corporation, a Nevada
corporation (“CHFR”) and Ning, Fen (“MS.
NING”), an individual.
WHEREAS,
MS. NING desires to subscribe to and purchase one million and seven hundred
fifty thousand shares (1,750,000) of restricted common stock of CHFR (the
“Shares”); and
WHEREAS,
CHFR agrees to deliver the Shares for the Consideration (as defined below) to be
paid by MS. NING, subject to the terms and conditions set forth
below.
NOW,
THEREFORE, for and in consideration of the mutual promises herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
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1.
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Purchase and
Sale. On the basis of the representations and
warranties herein contained, subject to the terms and conditions set forth
herein, MS. NING hereby agrees to purchase the Shares at a purchase price
of twenty cents (US$.20) per share (aggregate sum of $350,000), and CHFR
hereby agrees to sell the Shares to MS. NING for such
Consideration.
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2.
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Closing. The
closing of the purchase and sale contemplated by this Agreement (the
“Closing”) shall occur upon the transfer of the Consideration to CHFR at
Fu Xi Technology & Industry Park, Xxx Xxxx County, Jiang Xi Province,
P. R. China (the “Corporate Address”). CHFR shall deliver the Shares to
MS. NING within 14 days of receiving full payment under this
Agreement.
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A. Transactions
and Document Exchange at Closing. Prior to or at the Closing, the
following transactions shall occur and documents shall be exchanged, all of
which shall be deemed to occur simultaneously: (1) by MS. NING: MS. NING
shall deliver, or cause to be deliver, to CHFR: (a) the balance of the
Consideration (if any); and (b) such other documents, instruments, and/or
certificates, if any, as are required to be delivered pursuant to the provisions
of this Agreement, or which are reasonably determined by the parties to be
required to effectuate the transactions contemplated in this Agreement, or as
otherwise may be reasonably requested by CHFR in furtherance of the intent of
this Agreement; (2) by
CHFR: CHFR shall deliver, or cause the following to be delivered, to MS.
NING: (a) the Shares; and (b) such other documents, instruments, and/or
certificates, if any, as are required to be delivered pursuant to the provisions
of this Agreement, or which are reasonably determined by the parties to be
required to effectuate the transactions contemplated in this Agreement, or as
otherwise may be reasonably requested by MS. NING in furtherance of the intent
of this Agreement.
B. Post
-Closing Documents. From time to time after the Closing, upon the
reasonable request of any party, the party to whom the request is made shall
deliver such other and further documents, instruments, and/or certificates as
may be necessary to more fully vest in the requesting party the Consideration or
the Shares as provided for in this Agreement, or to enable the requesting party
to obtain the rights and benefits contemplated by this Agreement.
C. Payment. MS.
NING will ensure that all payments are forwarded to the Corporate
Address.
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3.
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Private
Offering. MS. NING and CHFR both understand and agree
that the purchase and sale of securities contemplated herein constitutes a
private, arms-length transaction between a willing seller and willing
buyer without the use or reliance upon a broker, distributor or securities
underwriter.
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A.
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Purchase
for Investment. Neither MS. NING nor CHFR are underwriters of,
or dealers in, the securities to be sold and exchanged
hereunder.
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B.
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Investment
Risk. Because of CHFR’s financial position and other factors as
disclosed in CHFR’s business plan (which MS. NING represents it has
received and reviewed), the transaction contemplated by this
Agreement may involve a high degree of financial risk, including the risk
that one or both parties may lose its entire investment, and both parties
hereby agree that they have each undertaken an independent
evaluation of the risks associated with the Shares, and both parties
understand those risks and are willing to accept the risk that they may be
required to bear the financial risks of this investment for an indefinite
period of time.
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C.
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Access
to Information. MS. NING and CHFR and their advisors have been
afforded the opportunity to discuss the transaction with legal and
accounting professionals and to examine and evaluate the financial impact
of the sale and exchange contemplated herein. MS. NING acknowledges that
it has been furnished with the information required to conform with the
provisions of subparagraph (a)(5) of Rule 15c2-11 of the Securities and
Exchange Commission.
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4.
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Representations and
Warranties of MS. NING: MS. NING hereby covenants and represents
and warrants to CHFR that:
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A.
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Organization. MS.
NING is an individual, with the power and authority to carry on business
as now being conducted. This Agreement has been duly executed
and delivered by MS. NING and constitutes a binding and enforceable
obligation of MS. NING.
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B.
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Third
Party Consent. No authorization, consent, or approval of, or
registration or filing with, any governmental authority or any other
person is required to be obtained or made by MS. NING in connection with
the execution, delivery, or performance of this Agreement or the transfer
of the Shares, or if any such is required, MS. NING will have or will
obtain the same prior to Closing.
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C.
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Litigation. MS.
NING is not a defendant against whom a claim has been made or a judgment
rendered in any litigation or proceedings before any local, state, or
federal government, including but not limited to the United States, or any
department, board, body, or agency
thereof.
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D.
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Authority. This
Agreement has been duly executed by MS. NING, and the execution and
performance of this Agreement will not violate, or result in a breach of,
or constitute a default in, any agreement, instrument, judgment, order, or
decree to which MS. NING is a party or to which the Consideration is
subject.
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E.
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Offshore
Transaction. MS. NING represents and warrants to CHFR as follows: (i) MS.
NING is not a “U.S. person” as that term is defined in Rule 902 of
Regulation S; (ii) at the execution of this Agreement, as well as the time
this transaction is or was due, MS. NING was outside the United States,
and no offer to purchase the Shares was made in the United States; (iii)
MS. NING agrees that all offers and sales of the Shares shall not be made
to U.S. persons unless the Shares are registered or a valid exemption from
registration can be relied on under applicable U.S. state and federal
securities laws; (iv) MS. NING is not a distributor or dealer; (v) the
transactions contemplated hereby have not been and will not be made on
behalf of any U.S. person or pre-arranged by MS. NING with a purchaser
located in the United States or a purchaser which is a U.S. person, and
such transactions are not and will not be part of a plan or scheme to
evade the registration provisions of the Act; (vi)all offering documents
received by MS. NING include statements to the effect that the Shares have
not been registered under the Securities Act of 1933 and may not be
offered or sold in the United States or to U.S. Persons (other than
distributors as defined in Regulation S) during the Restricted Period
unless the Shares are registered under the Securities Act of 1933 or an
exemption from registration is
available.
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The
foregoing representations and warranties are true and accurate as of the date
hereof, shall be true and accurate as of the date of the acceptance by CHFR of
MS. NING’s purchase, and shall survive thereafter. If MS. NING has knowledge,
prior to the acceptance of this Offshore Subscription Agreement by CHFR, that
any such representations and warranties shall not be true and accurate in any
respect, MS. NING prior to such acceptance, will give written notice of such
fact to CHFR specifying which representations and warranties are not true and
accurate and the reasons therefore.
MS. NING
agrees to fully indemnify, defend and hold harmless CHFR, its officers,
directors, employees, agents and attorneys from and against any and all losses,
claims, damages, liabilities and expenses, including reasonable attorney's fees
and expenses, which may result from a breach of MS. NING’s representations,
warranties and agreements contained herein.
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F.
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Accredited
Investor. MS. NING is an accredited investor as that term is
defined in Rule 501(a) of Regulation D promulgated under the
Act.
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G.
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Beneficial
Owner. MS. NING is purchasing stock for its own account or for
the account of beneficiaries for whom MS. NING has full investment
discretion with respect to stock and whom MS. NING has full authority to
bind, so that each such beneficiary is bound hereby as if such beneficiary
were a direct signatory hereunder, and all representations, warranties and
agreements herein were made directly by such
beneficiary.
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H.
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Directed
Selling Efforts. MS. NING will not engage in any activity for
the purpose of, or that could reasonably be expected to have the effect
of, conditioning the market in the United States for any of the Shares
sold hereunder. To the best of its knowledge, neither MS. NING
nor any person acting for MS. NING has conducted any “directed selling
efforts” as that term is defined in Rule 902 of Regulation
S.
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I.
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Independent
Investigation; Access. MS. NING, in electing to purchase the
Shares herein, has relied solely upon independent investigation made by
him and his representatives. MS. NING has been given no oral or
written representation or warranty from CHFR other than as set forth in
this Agreement. MS. NING and his representatives, if any, have,
prior to any sale to it, been given access and the opportunity to examine
all material books and records of CHFR, all material contracts and
documents relating to CHFR and this offering and an opportunity to ask
questions of, and to receive answers from, CHFR or any officer of CHFR
acting on its behalf concerning CHFR and the terms and conditions of this
offering. MS. NING and his advisors, if any, have been furnished with
access to all publicly available materials relating to the business,
finances and operations of CHFR and materials relating to the offer and
sale of the Shares which have been requested. MS. NING and his advisors,
if any, have received complete and satisfactory answers to any such
inquiries.
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J.
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No
Government Recommendation or Approval. MS. NING understands that no United
States federal or state agency, or similar agency of any other country,
has passed upon or made any recommendation or endorsement of the Shares,
or this transaction.
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K.
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No
Formation or Membership in “Group.” MS. NING is not part of a
“group” as that term is defined under the Act. MS. NING is not,
and does not intend to become, included with two or more persons acting as
a partnership, syndicate, or other group for the purpose of acquiring,
holding or disposing of securities of the
Company.
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L.
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Hedging
Transactions. MS. NING hereby agrees not to engage in any
hedging transactions involving the securities described herein unless in
compliance with the Act and Regulation S promulgated
thereunder.
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5.
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Conditions Precedent
to CHFR’s Closing. All obligations of CHFR under his
Agreement, and as an inducement to CHFR to enter into this Agreement, are
subject to MS. NING’s covenants and agreements to each of the
following:
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A.
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Acceptance
of Documents. All instruments and documents delivered to CHFR
pursuant to this Agreement or reasonably requested by CHFR to verify the
representations and warranties of MS. NING herein, shall be satisfactory
to CHFR and its legal counsel.
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B.
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Representations
and Warranties. The representations and warranties by MS. NING
set forth in this Agreement shall be true and correct at and as of the
Closing date, with the same force and effect as though made at and as of
the date hereof, except for changes permitted or contemplated by this
Agreement.
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C.
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No
Breach or Default. MS. NING shall have performed and complied
with all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by it prior to or at the
Closing.
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6.
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Termination. This
Agreement may be terminated at any time prior to the date of Closing by
either party if (a) there shall be any actual or threatened action or
proceeding by or before any court or any other governmental body which
shall seek to restrain, prohibit, or invalidate the transaction
contemplated by this Agreement, and which in the judgment of such party
giving notice to terminate and based upon the advice of legal counsel
makes it inadvisable to proceed with the transaction contemplated by this
Agreement, or (b) if this Agreement has not been approved and properly
executed by the parties by May 31,
2009.
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7.
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Restrictive
Legend. MS. NING agrees that the Shares shall bear a
restrictive legend to the effect that transfer is prohibited except in
accordance with the provisions of Regulation S, pursuant to registration
under the Act, or pursuant to an available exemption from registration,
and that hedging transactions involving those securities may not be
conducted unless in compliance with the
Act.
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8.
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CHFR’s Obligation to
Refuse Transfer. Pursuant to Regulation S promulgated
under the Act, CHFR hereby agrees to refuse to register any transfer of
the Shares not made in accordance with the provisions of Regulation S,
pursuant to registration under the Act, or pursuant to an available
exemption from registration.
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9.
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Miscellaneous.
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A.
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Authority. MS.
NING and the officers of CHFR executing this Agreement are duly authorized
to do so, and each party has taken all action required for valid
execution.
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B.
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Notices. Any
notice under this Agreement shall be deemed to have been sufficiently
given if sent by registered or certified mail, postage prepaid, or by
express mail service substantially equivalent to Federal Express,
addressed as follows
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To
MS. NING: Ms. Ning,
Fen.
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00 Xxxxx Xx Xx Xx, Xxxxxx Cun, Fufang
Xiang
Nanfeng
County, Jiangxi, P.R. China
(offshore
address)
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To
CHFR:
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China
Fruits Corporation
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Fu
Xi Technology & Industry Park, Xxx Xxxx County
Jiang Xi
Province, P. R. China
(00000)
000-0000
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C.
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Entire
Agreement. This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes
any and all prior or contemporaneous representations, warranties,
agreements and understandings in connection therewith. This Agreement may
be amended only by a writing executed by all parties
hereto.
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D.
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Severability. If
a court of competent jurisdiction determines that any clause or provision
of this Agreement is invalid, illegal or unenforceable, the other clauses
and provisions of the Agreement shall remain in full force and
effect and the clauses and provisions which are determined to be void,
illegal or unenforceable shall be limited so that they shall remain in
effect to the extent permissible by
law.
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E.
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Assignment. None
of the parties hereto may assign this Agreement without the express
written consent of the other parties and any approved assignment shall be
binding on and inure to the benefit of such successor or, in the event of
death or incapacity, on assignor’s heirs, executors, administrators,
representatives, and successors.
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F.
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G.
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Attorney’s
Fees. If any legal action or other proceeding (including but
not limited to binding arbitration) is brought for the enforcement of or
to declare any right or obligation under this Agreement or as a result of
a breach, default or misrepresentation in connection with any of the
provisions of this Agreement, or otherwise because of a dispute among the
parties hereto, the prevailing party will be entitled to recover actual
attorney’s fees (including for appeals and collection and including the
actual cost of in-house counsel, if any) and other expenses incurred in
such action or proceeding, in addition to any other relief to which such
party may be entitled.
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H.
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Counterparts
and Facsimile. This Agreement may be executed in any number of
identical counterparts (except as to signature only), each of which may be
deemed an original for all purposes. A fax, telecopy or other
reproduction of this instrument may be executed by one or more parties
hereto and such executed copy may be delivered by facsimile or similar
instantaneous electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution
and delivery shall be considered valid, binding and effective for all
purposes.
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IN
WITNESS WHEREOF, the parties have executed this agreement below.
Ms. Ning,
Fen China
Fruits Corporation
By: /s/ Ning,
Fen /s/ Chen Xxxx Xxxx
Ning, Fen,
Individual Cheng Xxxx Xxxx, President
