OFFSHORE SUBSCRIPTION AGREEMENT
This
Offshore Subscription Agreement (the “Agreement”) is entered into this 12th day
of January, 2010(the “Effective Date”), by and between China Fruits Corporation,
a Nevada corporation (“CHFR”) and Xxxxx, XxxXxx (“XX. XXXXX”), an
individual.
WHEREAS,
XX. XXXXX desires to subscribe to and purchase nine hundred thousand shares
(900,000) 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 XX. XXXXX, 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:
1.
Purchase and Sale. On the basis of the representations and warranties herein
contained, subject to the terms and conditions set forth herein, XX. XXXXX
hereby agrees to purchase the Shares at a purchase price of twenty cents
(US$.20) per share (aggregate sum of $180,000), and CHFR hereby agrees to sell
the Shares to XX. XXXXX for such Consideration.
2.
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 XX. XXXXX
within 14 days of receiving full payment under this Agreement.
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 XX. XXXXX : XX. XXXXX
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 maybe 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 XX. XXXXX: (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 XX. XXXXX 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. XX. XXXXX will ensure that all payments are forwarded to the Corporate
Address.
3.
Private Offering . XX. XXXXX 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.
A.
Purchase for Investment. Neither XX. XXXXX nor CHFR are underwriters of, or
dealers in, the securities to be sold and exchanged hereunder.
B.
Investment Risk. Because of CHFR’s financial position and other factors as
disclosed in CHFR’s business plan (which XX. XXXXX 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.
C. Access
to Information. XX. XXXXX 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. XX. XXXXX 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.
4.
Representations and Warranties of XX. XXXXX: XX. XXXXX hereby covenants and
represents and warrants to CHFR that:
A.
Organization. XX. XXXXX 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 XX. XXXXX and constitutes a binding and enforceable obligation of
XX. XXXXX.
B. 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 XX. XXXXX in connection with the execution, delivery, or
performance of this Agreement or the transfer of the Shares, or if any such is
required, XX. XXXXX will have or will obtain the same prior to
Closing.
C.
Litigation. XX. XXXXX 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.
D.
Authority. This Agreement has been duly executed by XX. XXXXX, 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 XX. XXXXX is a party or to which the Consideration is
subject.
E.
Offshore Transaction. XX. XXXXX represents and warrants to CHFR as follows: (i)
XX. XXXXX 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, XX. XXXXX was outside the United States, and no offer
to purchase the Shares was made in the United States; (iii) XX. XXXXX 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) XX. XXXXX 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 XX.
XXXXX 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 XX. XXXXX 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.
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
XX. XXXXX’x purchase, and shall survive thereafter. If XX. XXXXX 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, XX. XXXXX 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.
XX. XXXXX
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 XX. XXXXX’x representations,
warranties and agreements contained herein.
F.
Accredited Investor. XX. XXXXX is an accredited investor as that term is defined
in Rule 501(a) of Regulation D promulgated under the Act.
G..
Beneficial Owner. XX. XXXXX is purchasing stock for its own account or for the
account of beneficiaries for whom XX. XXXXX has full investment discretion with
respect to stock and whom XX. XXXXX 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.
H.
Directed Selling Efforts. XX. XXXXX 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 XX. XXXXX nor any person acting
for XX. XXXXX has conducted any “directed selling efforts” as that term is
defined in Rule 902 of Regulation S.
I.
Independent Investigation; Access. XX. XXXXX, in electing to purchase the Shares
herein, has relied solely upon independent investigation made by him and his
representatives. XX. XXXXX has been given no oral or written representation or
warranty from CHFR other than as set forth in this Agreement. XX. XXXXX 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. XX. XXXXX 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. XX. XXXXX and his advisors, if any, have received
complete and satisfactory answers to any such inquiries.
J. No
Government Recommendation or Approval. XX. XXXXX 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.
K. No
Formation or Membership in “Group.” XX. XXXXX is not part of a “group” as that
term is defined under the Act. XX. XXXXX 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.
L.
Hedging Transactions. XX. XXXXX 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.
5.
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 XX. XXXXX’x covenants and agreements to each of the
following:
A.
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 XX. XXXXX herein, shall be satisfactory to
CHFR and its legal counsel.
B.
Representations and Warranties. The representations and warranties by XX. XXXXX
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.
C. No
Breach or Default. XX. XXXXX 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.
6.
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 January 12,
2010.
7.
Restrictive Legend . XX. XXXXX 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.
8. 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.
9.
Miscellaneous .
A.
Authority. XX. XXXXX 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.
B.
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
To XX.
XXXXX:
Xxxxx Jun
Jie
501,
No.14, Xxx Xxx Xiang, Ren Min Road,
QinCheng
Town, Xxx Xxxx County, Fu Zhou City,
Jiangxi,
P.R. China
To
CHFR:
China
Fruits Corporation
Fu Xi
Technology & Industry Park, Xxx Xxxx County
Jiang Xi
Province, P. R. China
(00000)
000-0000
C. 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.
D.
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.
E.
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.
F.
Applicable Law. This Agreement has been negotiated and is being contracted for
in the United States, State of Nevada. It shall be governed by and interpreted
in accordance with the laws of the United States and the State of Nevada,
regardless of any conflict-of-law provision to the contrary.
G.
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.
H.
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.
IN
WITNESS WHEREOF, the parties have executed this agreement below.
Xx.
Xxxxx, Jun
Jie China
Fruits Corporation
By: /s/ Xxxxx, Jun Jie By: /s/ Chen Xxxx Xxxx
Xxxxx,
Jun Jie,
Individual Cheng
Xxxx Xxxx, President
