EXHIBIT 4.6
______________, 1997
ConSyGen, Inc.
c/o John G. Nossiff, Jr., Esq.
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, MA 02111
ATTN: Ronald I. Bishop, President and Chief Executive Officer
Re: ConSyGen, Inc.
------------------
Ladies and Gentlemen:
The undersigned hereby subscribes to the immediate acquisition of
_______ shares of Common Stock, $.003 par value (the "Securities"), of ConSyGen,
Inc., a Texas corporation (the "Company"), at a per share price of U.S. $______
for aggregate consideration of U.S. $___________ The undersigned is delivering
herewith to the Escrow Agent (defined below) at the above address U.S.
$__________ by certified check or federal funds wire transfer to the following
account:
BANK: FLEET PRIVATE BANKING
ABA: 011000138
SWIFT CODE: FLTBUS3B (For international wires only)
CITY: BOSTON
STATE: MASSACHUSETTS
ACCOUNT #: 93568 68063
ACCOUNT NAME: BROWN, RUDNICK, FREED & GESMER, CLIENT
TRUST FUND
ATTN: JOHN G. NOSSIFF, JR.
ORIGINATION OF FUNDS:
BANK:_______________________________________________
CITY:_______________________________________________
STATE:______________________________________________
AMOUNT OF FUNDS WIRED:______________________________
GIVE FOLLOWING INSTRUCTIONS TO ORIGINATING BANK:
- ------------------------------------------------
Originating Bank should instruct Fleet Private Banking to notify BRF&G
Accounting Department upon receipt of the funds - Use Code CSGI.
There is no minimum offering amount. Pending acceptance of this
subscription, the funds delivered herewith will be held in escrow by Brown,
Rudnick, Freed & Gesmer, counsel to the Company (the "Escrow Agent"), in an
interest-bearing account. In the event the funds are not received by the Closing
Date (August 29, 1997, unless extended by the Company) or the Company rejects
this subscription (which the Company reserves the right to do in its sole
discretion), the Company shall cause the Escrow Agent to return the funds to the
subscriber with interest earned thereon. Upon the Company's acceptance of this
subscription, the Company shall deliver the Securities to the undersigned at the
address indicated below and the Escrow Agent shall deliver the funds to the
Company. The Escrow Agent shall have no liability to the undersigned in
connection with acting as Escrow Agent, except for acts constituting fraud or
willful misconduct.
In connection with the purchase of the Securities, the undersigned
acknowledges, warrants and represents to the Company as follows:
1. The undersigned is acquiring the Securities for investment for its
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.
2. The undersigned 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. The undersigned has been provided with and has carefully
reviewed the ConSyGen, Inc. Disclosure Memorandum dated August 26, 1997 (the
"Company Information"). The undersigned 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 its
evaluation of this investment, has, to the best of its knowledge, received all
information and data with respect to the Company that the undersigned has
requested. The undersigned is acquiring the Securities based solely upon (1) the
Company Information; and (2) its independent examination and judgment as to the
prospects of the Company.
3. The Securities were not offered to the undersigned by means of
publicly disseminated advertisements or sales literature.
4. The undersigned acknowledges that an investment in the Securities is
speculative and the undersigned may have to continue to bear the economic risk
of the investment in the Securities for an indefinite period. The undersigned
acknowledges that the Securities are being sold to the undersigned without
registration under any state or federal law requiring the registration of
securities for sale, and accordingly will constitute "restricted securities" as
defined in Rule 144 of the Securities and Exchange Commission. The
transferability of the Securities is therefor restricted by applicable United
States Federal and state securities laws and may be restricted under the laws of
other jurisdictions.
5. The undersigned is an "accredited investor" as such term is defined
in Appendix A.
6. In consideration of the acceptance of this subscription, the
undersigned 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.
7. The undersigned 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.
The undersigned agrees to indemnify and hold harmless the Company and
its officers, directors, employees and agents from and against any and all
costs, liabilities and expenses (including attorneys' fees) arising out of or
related in any way to any breach of any representation or warranty contained
herein.
The Company agrees to file, within 45 days of Closing, a Registration
Statement on Form S-1 registering the shares for resale by the undersigned. At
the end of each 30 day period, after the expiration of such 45 day period,
during which the Registration Statement is not filed, a fee shall be paid to the
undersigned equal to two (2%) percent of the amount invested, but in no case
shall such fee exceed ten (10%) percent of the amount invested. Any fee shall be
payable in shares of common stock of the Company. The number of shares shall be
determined by dividing the dollar amount of the fee, determined in accordance
herewith, by $_______ (the per share purchase price hereunder). Any fee shall be
paid with shares within ten (10) days of the due date thereof.
ACCEPTANCE OF SUBSCRIPTION SUBSCRIBER
ConSyGen, Inc. ________________________________
Name: _________________________
Address: ______________________
By: /s/Ronald I. Bishop ______________________
--------------------- ______________________
Ronald I. Bishop, President
Dated:
-----------------
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 purchaser
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 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.
SCHEDULE TO EXHIBIT 4.6
TOTAL
NO. OF SHARES PRICE PER SUBSCRIPTION
SUBSCRIBED SHARE DATE ACCEPTED PRICE
15,000 $6.75 9/19/97 $101,250
20,000 $5.50 9/19/97 $110,000
2,000 $5.00 9/19/97 $ 10,000
15,000 $6.75 9/19/97 $101,250
50,000 $5.60 8/27/97 $280,000
50,000 $5.60 8/27/97 $280,000