EXHIBIT 4.3
SUBSCRIPTION AGREEMENT
ConSyGen, Inc.
10201 South 51st Street
Suite 140
Phoenix, AZ 85044
Gentlemen:
1. The undersigned hereby tenders this subscription and subscriber
for the purchase of a 6% Convertible Note, in the principal amount of $600K
convertible into shares of common stock of ConSyGen, Inc. (The "Company").
Together with this Subscription Agreement, the undersigned is delivering to the
Company, its funds by wire transfer as instructed by the Company. (See previous
page 2).
2. Representations and Warranties. In order to induce the Company
to accept this subscription, the undersigned hereby represents and warrants to,
and covenants with, the Company as follows:
(i) The undersigned performed reasonable due diligence and has not
been furnished with any other materials or literature relating to the offer and
sale of the shares being offered except those included in these confidential
offering materials.
(ii) The undersigned has had a reasonable opportunity to ask
questions of and receive answers from the Company concerning the Company and the
offering, and all such questions, if any, have been answered to the full
satisfaction of the undersigned;
(iii) The undersigned has such knowledge and expertise in
financial and business matters that the undersigned is capable of evaluating the
merits and risks involved in an investment in the securities offered hereby.
(iv) The Confidential Purchaser Questionnaire being delivered by
the undersigned to the Company simultaneously herewith is true, complete and
correct in all material respects; and the undersigned understands that the
Company has determined that the exemption from the registration provisions of
the Securities Act of 1933, as amended (the "Act"), which is based upon
non-public offerings are applicable to the offer and sale of the securities
offered hereby, based, upon the representations, warranties and agreements made
by the undersigned herein and in the Confidential Purchaser Questionnaire
referred to above;
(v) Except as set forth in the confidential offering `materials no
representations or warranties have been made to the undersigned by the Company
or any agent, employee or affiliate of the Company and in entering into this
transaction the
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undersigned is not relying upon any information, other than that which is made
and the results of independent investigation by the undersigned;
(vi) The undersigned understands that (A) the Securities have not
been registered under the Act or the securities laws of any state, based upon an
exemption from such registration requirements for non-public offerings pursuant
to Regulation D under the Act; (B) the Securities are and will be "restricted
securities", as said term is defined in Regulation D of the Securities Act of
1933 and Regulations promulgated under the Act; (C) the Securities may not be
sold or otherwise transferred unless they have been first registered under the
Act and all applicable state securities laws, or unless exemptions from such
registration provisions are available with respect to said resale or transfer;
(D) the certificates for the underlying Shares when issued will bear a legend to
the effect that the transfer of the securities represented thereby is subject to
restrictions on resale under federal and state securities laws; and (E) stop
transfer instructions will be placed with the transfer agent for the Shares;
(vii) The undersigned is acquiring the Securities solely for the
account of the undersigned, for investment purposes only, and not with a view
towards the resale or distribution thereof;
(viii) The undersigned will not sell or otherwise transfer any of
the Securities of common stock or any interest therein, unless and until (I)
said shares shall have first been registered under the Act and all applicable
state securities laws; or (ii) the undersigned shall have first delivered to the
Company a written opinion of counsel (which counsel and opinion (in form and
substance) shall be reasonably satisfactory to the Company), to the effect that
the proposed sale or transfer is exempt from the registration provisions or the
Act and all applicable state securities laws;
(ix) The undersigned has full power and authority to execute and
deliver this Subscription Agreement and to perform the obligations of the
undersigned hereunder; and this Subscription Agreement is a legally binding
obligation of the undersigned in accordance with its terms;
(x) the undersigned is an "accredited investor", as such term is
defined in Regulation D promulgated under the Act.
3. The undersigned understands that this subscription is not
binding upon the Company until the Company accepts it, which acceptance is at
the sole discretion of the Company and is to be evidenced by the Company's
execution of this Subscription Agreement where indicated. This Subscription
Agreement shall be null and void if the Company does not accept it as aforesaid.
4. The undersigned understands that the Company may, in its sole
discretion, reject this subscription and, in the event that the offering is over
subscribed, offer partial reduce this subscription in any amount and to any
extent, whether or not pro rata reductions are made of any other investor's
subscription.
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5. The undersigned agrees to indemnify the Company and hold it
harmless from and against any and all losses, damages, liabilities, costs and
expenses which it may sustain or incur in connection with the breach by the
undersigned or if an representation, warranty or covenant made by the
undersigned herein.
6. Neither this Subscription Agreement nor any of the rights of
the undersigned hereunder may be transferred or assigned by the undersigned.
7. This Subscription Agreement (I) may only be modified by a
written instrument executed by the undersigned and the Company; and (ii) sets
forth the entire agreement of the undersigned and the Company with respect to
the subject matter hereof; (iii) shall be governed by the laws of the State of
Texas applicable to contracts made and to be wholly performed therein; and (iv)
shall inure to the benefit of, and be binding upon the Company and the
undersigned and their respective heirs, legal representatives, successors and
permitted assigns.
8. Unless the context otherwise requires, all personal pronouns
used in this Subscription Agreement, whether in the masculine, feminine or
neuter gender, shall include all other genders.
9. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or
within five days if mailed by certified or registered mail, return receipt
requested, postage prepaid, as follows; if to the undersigned, to the address
set forth in the Confidential Purchaser Questionnaire referred to above; and if
to the Company, to ConSyGen, Inc. 10201 South 51st Street, Phoenix, AZ 85044 or
to such other address as the Company or the undersigned shall have designated to
the other by like notice.
IN WITNESS WHEREOF, the undersigned has executed this Subscription
Agreement this 17th day of March, 1997.
Organization Signature:
Little Wing, L.P.
--------------------------
Print Name of Subscriber
By: /s/Parker Quillen
-----------------------
Print Name and Title
Person Signing
Principal amount of Note
subscribed for:
$600,000.00
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INDEMNIFICATION
(a) The undersigned hereby indemnifies the Company, its affiliates and its
agents and holds them harmless from and against any and all loss, damage,
liability or expense, including costs and reasonable attorney's fees,
incurred by the Company (or its affiliates or agents) by reason of or in
connection with any misrepresentation made by the undersigned, any breach
of any of the undersigned's warranties, or failure of the undersigned to
fulfill any covenants or agreements under this Subscription Agreement.
This Subscription Agreement and the representations and warranties
contained herein shall survive the undersigned's purchase of the Shares
and shall be binding upon the successors and assigns of the undersigned.
(b) The Company hereby indemnifies the undersigned, its affiliates and its
agents and holds them harmless from and against any and all loss, damage,
liability or expense, including costs and reasonable attorney's fees,
incurred by the undersigned (or its affiliates or agents) by reason of or
in connection with any misrepresentation made by the Company, any breach
of any of the Company's warranties, or failure of the Company to fulfill
any covenants or agreements under this Subscription Agreement. This
Subscription Agreement and the representations and warranties contained
herein shall survive the undersigned's purchase of the Shares and shall be
binding upon the successors and assigns of the Company.
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SUPPLEMENTAL INFORMATION TO BE FURNISHED WITH REPORTS FILED
PURSUANT TO SECTION 15 (d) OF THE ACT BY REGISTRANT'S WHICH HAVE NOT REGISTERED
SECURITIES PURSUANT TO SECTION 12 OF THE ACT.
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ACCEPTANCE OF SUBSCRIPTION
ConSyGen, Inc.
The foregoing subscription is hereby accepted by ConSyGen, Inc.,
this 20th day of March, 1997, for $600,000.00.
ConSyGen, Inc.
By: /s/Ronald I. Bishop
------------------------------
Ronald I. Bishop, President
SUMMARY OF TERMS
CONSYGEN, INC.
10201 South 51st Street
Suite 140
Phoenix, AZ 85044
(A Texas Corporation)
*******************
AMOUNT: Up to $1,000,000
UNDERWRITING: Best efforts, exclusive to IRA Capital Corporation
INSTRUMENT A 6% Convertible Note, convertible into shares of common stock of
ConSyGen, Inc. (The "Company")
REGISTRATION: The Convertible Notes will be issued pursuant to the exemption provisions
of Sections 4(2) and 4(6) of the Securities Act of 1933 (Regulation D).
The Company agrees to file a Registration Statement with the Securities
and Exchange Commission on Form S-3, its successor form, or any other form
under the Securities Act under which the common shares underlying the
Convertible Note is eligible to be registered, as soon as reasonably
practicable after the Closing Date, unless the shares underlying the Notes
are freely tradable under the Securities Act without registration
thereunder.
CONVERSION DISCOUNT: Lesser of:
(i) A fixed price determined to be 115% of the closing bid price of the
common shares on the Closing date; or
(ii) 30% discount off the average of the
previous 5 day closing bid price prior to
conversion.
CONVERSION DATE: The Note may be converted to shares of common stock at the earlier of the
expiration of 90 days following the Closing Date or the effective date of
the Registration Statement registering the Shares underlying the
Convertible Note as the case may be. The underlying common shares will be
subject to a Stop Transfer Instruction until the underlying shares are
registered under the Securities Act or the Company has received an opinion
of counsel, in form and substance satisfactory to the Company, that such
registration is not required.
If the Registration Statement registering the shares underlying the
Convertible Notes (the "Registration Statement") is not declared effective
by the Securities and Exchange Commission ("SEC") within 90 days of the
Closing, a penalty of an amount equal to two (2%) percent interest shall
be paid by the company in cash on the first day of the first month and at
the end of each 30 day period thereafter, during which the Registration
statement has not been declared effective by the SEC, a penalty of 3%
(three percent) shall be paid by the company in cash on the first day of
each subsequent month thereafter.
(A) The Company may force conversion of the Note with notice at any time
following the expiration of 6 months of the effective registration date.
(B) If the price of the shares of common stock is less than the bid price
on the day of closing of this offering, then the Company may elect to
redeem all or part of the Notes at a 130% (one hundred and thirty percent)
premium. The following conditions are applicable: (1) The Company must
provide the subscriber with full cash payment within three business days
of their notice to redeem the Note. Failure to satisfy the terms of
payment of the redemption in full, the Company shall forfeit all
redemption rights. (2) Upon the Company's receipt of conversion notice
from the subscriber, the Company may not effect a redemption of any kind.
(3) Upon notification of conversion from the subscriber to the Company,
the Company is required to deliver the shares of common stock to the
subscriber within 5 (five) business days of notification.
TERM: 3 Years
INTEREST: 6% per annum, payable semi-annually
CLOSING: On or before March 11, 1997
DOCUMENTATION: All documentation to be in form acceptable to counsel to ConSyGen, Inc.
and IRA Capital Corporation
ESCROW AGENT: IRA Capital Corporation
DATE: March 10, 1997
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This document is for information purposes only. IRA Capital Corporation believes
that the above-noted terms are indicative of the current investment climate
although the opinions expressed herein are subject to change without notice.