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EXHIBIT 4.23
SUBSCRIPTION AGREEMENT
dated as of
March 26, 1999
ARTICLE I
SUBSCRIPTION
THIS SUBSCRIPTION AGREEMENT is dated as of March 26, 1999, between Xx. Xxxx
Xxx (the "Subscriber"), and Integrated Transportation Network Group, Inc., a
Delaware corporation (the "Company").
Section 1.01 SUBSCRIPTION. The Subscriber hereby subscribes to the
immediate acquisition of 1,500,000 shares (the "Shares") of Common Stock, $0.01
par value ("Common Stock") of the Company at a purchase price of US$2.00 per
share, for an aggregate purchase price of US$3,000,000 (the "Purchase Price").
The Purchase Price may be paid, at the option of the Subscriber, either by wire
transfer in U.S. Dollars to an account specified by the Company or by wire
transfer in People's Republic of China Renminbi ("RMB") at an exchange rate of
RMB8.25 to US$1.00 (resulting in an aggregate purchase price in RMB of
RMB8,250,000) to the Company's designee as set forth in Section 1.02.
Promptly upon the execution hereof and receipt of the Purchase Price by the
Company or its designee as set forth below, the Company shall deliver the Shares
to the undersigned at the address indicated below.
Section 1.02 PAYMENT OF PURCHASE PRICE IN RMB. In the event that the
Subscriber elects to pay the Purchase Price in RMB, the Purchase Price shall be
paid by wire transfer in Renminbi to an account of the Company's designee,
Shenzhen Jinzhenghua Transport Industrial Development Co., Ltd., a 92% owned
subsidiary of the Company ("Jinzhenghua"), as instructed by the Company. In
connection with any such payment to Jinzhenghua in Renminbi, the Subscriber
shall comply with the laws of the People's Republic of China relating to foreign
exchange restriction regulations, and shall indemnify the Company for any losses
incurred by the Company or Jinzhenghua as a direct result of any failure on the
part of the Subscriber to comply with such laws.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01 In connection with the purchase of the Shares, the Subscriber
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acknowledges, warrants and represents to the Company as follows:
(a) It is acquiring the Shares for investment for its own account and
without the intention of participating, directly or indirectly, in a
distribution of the Shares, and not with a view to resale or any distribution of
the Shares, or any portion thereof.
(b) It has knowledge and experience in financial and business matters and
has consulted with its own professional representatives, as it has considered
appropriate to assist in evaluating the merits and risks of this investment. It
has reviewed the Company's Registration Statement on Form S-I dated June 29,
1998 and the Company's Quarterly Reports on Form 10Q for the quarter ended June
30 and September 30, 1998, respectively. It has had access to and an opportunity
to question the officers of the Company, or persons acting on their behalf, with
respect to material information about the Company and, in connection with his
evaluation of this investment, has, to the best of its knowledge, received all
information and data with respect to the Company that it has requested. It is
acquiring the Shares based solely upon its independent examination and judgment
as to the prospects of the Company.
(c) The Shares were not offered to the Subscriber by means of publicly
disseminated advertisements or sales literature.
(d) Subject to the provisions of Section 3.01, it acknowledges that an
investment in the Shares is speculative and it may have to continue to beat the
economic risk of the investment in the Shares for an indefinite period. It
acknowledges that the Shares are being sold to the undersigned , without
registration under any state, or federal or PRC law requiring the registration
of securities for sale, and accordingly will constitute "restricted securities"
as defined in Rule 144 of the U.S. Securities and Exchange Commission. The
transferability of the Shares is therefore restricted by applicable United
States Federal and state securities laws and may be restricted under the laws of
other jurisdictions.
(e) The Subscriber is an "accredited investor" as such term is defined in
Appendix A.
(f) In consideration of the acceptance of this subscription, the
Subscriber agrees that the Shares will not be offered for sale, sold or
transferred by the undersigned other than pursuant to (i) an effective
registration under the Securities Act of 1933, as amended (the "Act"). an
exemption available under the Act or a transaction that is otherwise in
compliance with the Act; and (ii) an effective registration under the securities
law of any state or other jurisdiction applicable to the transaction, an
exemption available under such laws, or a transaction that is otherwise in
compliance with such laws.
(g) It understands that no U.S. federal or state agency has passed upon
the offering of the Shares or has made any finding or determination as to the
fairness of any investment in the Shares.
Section 2.02 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As an
inducement to the Subscriber to enter into this Agreement and to consummate the
transactions contemplated herein, the Company hereby represents and warrants to
the Subscriber and agrees as follows:
(a) ORGANIZATION; AUTHORITY. The Company is a corporation duly organized,
validly
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existing and in good standing under the laws of Delaware and has full power and
authority to enter into this Agreement and to perform its obligations hereunder.
This Agreement constitutes, and any other agreements and instruments required to
be delivered by the Company hereunder, when duly executed and delivered by the
Company, will constitute valid and binding obligations of the Company and will
be enforceable in accordance with their respective terms. The Company has
previously provided to the Subscriber true copies of all resolutions of the
Company's Board of Directors necessary to authorize the transactions described
herein, and all such resolutions are in full force and effect and have not been
revoked.
(b) CAPITALIZATION. As of March 23, 1999, the authorized share capital of
the Company consists of 50,000,000 common shares, par value US$.01 per share, of
which 10,467,915 are fully issued and remain outstanding, and 5,000,000
preferred shares, par value US$.01 per share, none of which are issued and
outstanding. Except as set forth above and as set forth in Appendix B, no other
shares or equity securities of the Company have been issued and remain
outstanding. and there are no outstanding options, warrants or other rights to
purchase or acquire any share capital of the Company, whether granted by the
Company or otherwise, and there are no existing contracts by which the Company
is or may become bound to issue any additional shares. The Company has never
reduced, repaid. redeemed or purchased any of its share capital. The Shares
shall, upon issuance, be fully paid and non-assessable.
(c) NO CONSENTS. Neither the consummation of the transactions contemplated
hereby, nor compliance with nor fulfillment of the terms and provisions hereof,
will (i) require the consent of any governmental authority or any person under
any contract to which the Company is a party or to which the Company is subject;
or (ii) give any party with rights under any material contract to which the
Company or any subsidiary of the Company is a party the right to terminate,
modify or otherwise change the material rights or obligations of any party under
such contract.
(d) COMPLIANCE WITH LAWS. The Company is in compliance, and there exists
no alleged material noncompliance, with all applicable laws relating in any
material respect to the Company and the operation or conduct of its business,
except where the failure to so comply would not have a material adverse effect
on the Company, and, except as previously disclosed in the Prospectus of the
Company dated June 29, 1998 or the quarterly reports of the Company filed with
the SEC on Form 10-Q for the three-month periods ending June 30, 1998 and
September 30, 1998, the Company has not received any notice of alleged violation
of any such applicable law.
ARTICLE III
MISCELLANEOUS
Section 3.01 REGISTRATION RIGHTS. The Company agrees that it shall file
with the United States Securities and Exchange Commission (the "SEC") a
registration statement under the U.S. Securities Act of 1933 (the "Securities
Act") in accordance with Rule 4I5 thereof (the "Shelf Registration") with
respect to all of the Shares, and shall use its best efforts to cause such
registration statement to become effective within 180 days after the date hereof
and to remain effective at all times for a period of four years after the date
hereof. In addition, if the Company
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at any time files a Registration Statement under the Securities Act with respect
to its Common Stock after the date hereof, the Company shall so notify the
undersigned and shall include such of the Shares as the Subscriber may request
on such Registration Statement.
Section 3.02 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts. each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
Section 3.03 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, applicable to
contracts executed in and to be performed entirely within that state. All
actions and proceedings arising out of or relating to this Agreement shall be
heard and determined in any New York state or federal court sitting in the City
of New York and, to the extent permitted by Law, the parties hereto expressly
consent to the jurisdiction of such courts, agree to venue in such courts and
hereby waive any defense or claim of FORUM NON CONVENIENS they may have with
respect to any such action or proceeding.
IN WITNESS WHEREOF, the Subscriber and the Company have executed this
Agreement or caused this Agreement to be executed as of the date first written
above.
COMPANY SUBSCRIBER
INTEGRATED TRANSPORTATION Xx. XXXX XXX
NETWORK GROUP, INC.
By:/s/ Xxxxxx Xxx By:/s/ Xxxx Xxx
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Name: Xxxxxx Xxx Name: Xxxx Xxx
Title: President Title:
Address: 000 Xxxx 00xx Xxxxxx Address: x/x X/X Xxxxx Xxxxxxxxxx Xxxxxxxx
00xx Xxxxx 12 Xxx Xxxxx Street, Chai Wan
Xxx Xxxx, XX 00000 Hong Kong
USA
