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Exhibit 4.13
SUBSCRIPTION AGREEMENT
dated as of
December 23, 1998
ARTICLE I
SUBSCRIPTION
THIS SUBSCRIPTION AGREEMENT is dated as of December 23, 1998, between
Xxxx Xxx Xxxxx Xxxx (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 (i) 380,952 shares (the "Shares") of Common Stock, $0.1
par value ("Common Stock") of the Company, and (ii) Warrants to purchase an
additional 500,000 shares of Common Stock, which shall be exercisable
immediately at a price of US$2.00 per share and shall have a term of five years.
Such Common Stock and Warrants are referred to herein as the "Securities".
Promptly upon the execution hereof and receipt by the Company of US$
one million dollars (US $1,000,000), the Company shall deliver the Securities to
the undersigned at the address indicated below.
ARTICLE II
PRESENTATIONS AND WARRANTIES
Section 2.01 In connection with the purchase of the Securities, the
Subscriber acknowledges, warrants and represents to the Company as follows:
(a) He is acquiring the Securities for investment for his own account
and without the intention of participating, directly or indirectly, in a
distribution of the Securities, and not with a view to resale or any
distribution of the Securities, or any portion thereof.
(b) He has knowledge and experience in financial and business matters
and has consulted with his own professional representatives as he has considered
appropriate to assist in evaluating the merits and risks of this investment. He
has reviewed the Company's Registration Statement on Form S-1 dated June 29,
1998 and the Company's Quarterly Reports on Form 10Q for the quarter ended June
30 and September 30, 1998, respectively. He 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
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investment, has, to the best of his knowledge, received all information and
data with respect to the Company that he has requested. He is acquiring the
Securities based solely upon his independent examination and judgment as to the
prospects of the Company.
(c) The Securities were not offered to the Subscriber by means of
publicly disseminated advertisements or sales literature.
(d) Subject to the provisions of Section 3.01, he acknowledges that an
investment in the Securities is speculative and he may have to continue to bear
the economic risk of the investment in the Securities for an indefinite period.
He acknowledges that the Securities 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 Securities 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 Securities 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) He understands that no U.S. federal or state agency has passed upon
the offering of the Securities or has made any finding or determination as to
the fairness of any investment in the Securities.
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 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
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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 December 10, 1998, the authorized
share capital of the Company consists of 50,000,000 common shares, par value
US$.01 per share, of which 9,854,250 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
Securities shall, upon issuance, shall 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 MISCELLANEOUS. 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 415 thereof (the "Shelf Registration") with respect to all
of the Securities, 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 two years after the date hereof.
In addition, if the Company at any time files a Registration Statement under the
Securities Act with respect to its Common Stock after the date hereof,
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the Company shall so notify the undersigned and shall include such of the
Securities 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
Network Group Inc. /s/ Xxxx Xxx Xxxxx Xxxx
--------------------------------------
Name: Xxxx Xxx Xxxxx Xxxx
Address: 1/F Shell Industrial Building
By: /s/ Xxxxxx Xxx 12 Xxx Xxxxx Street, Chai Wan
--------------------------------- Hong Kong, PRC
Xxxxxx Xxx, President
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000 U.S.A.
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APPENDIX A
An "accredited Investor" within the meaning of Regulation D
under the Securities Act of 1933 includes the following:
ORGANIZATIONS
(1) A bank as defined in section 3(a)(2) of the Act, or any savings and
loan association or other institution as defined in section 3(a)(5)(A) of the
Act, whether acting in its individual or fiduciary capacity; a broker or dealer
registered pursuant to section 15 of the Securities Exchange Act of 1934;
insurance company as defined in section 2(13) of the Act; 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; 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; 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.
(2) A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940.
(3) A trust (i) with total assets in excess of $5,000,000, (ii) not
formed for the specific purpose of acquiring the Securities, (iii) whose
purchase is directed by a person who, either alone or with his Subscriber
representative, has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of the proposed
investment.
(4) A corporation, business trust, partnership, or an organization
described in section 501(c)(3) of the Internal Revenue Code, which was not
formed for the specific purpose of acquiring the Securities, and which has total
assets in excess of $5,000,000.
INDIVIDUALS
(5) Individuals with income from all sources for each of the last two
full calendar years whose reasonably expected income for this calendar year
exceeds either of:
(i) $200,000 individual income; or
(ii) $300,000 joint income with spouse.
NOTE: Your "income" for a particular year may be calculated by adding to your
adjusted gross income as calculated for Federal income tax purposes any
deduction for
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long term capital gains, any deduction for depletion allowance, any
exclusion for tax exempt interest and any losses of a partnership allocated to
you as a partner.
(6) Individuals with net worth as of the date hereof (individually or
jointly with your spouse), including the value of home, furnishings, and
automobiles, in excess of $1,000,000.
(7) Directors, executive officers or general partners of the Issuer.
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APPENDIX B
1.
Options and Warrants
Employee Options The Company intends to issue options to purchase
up to 2,000,000 shares of Common Stock, on the
grant date at prices no less than the price
reported on the NASD's OTC Bulletin Board or such
other quotation system or exchange on which the
Common Stock is then listed.
Warrants Purchase rights to
694,286 shares of Common
Stock at US $2.00 per
share.
Financier Option Option to purchase
1,992,000 shares of
Common Stock at US
$2.00 per share.
Finder's Warrant Purchase rights to 100,000
shares of Common Stock at
US $2.00 per share.
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