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EXHIBIT 4.11
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR STATE SECURITIES LAWS. NO SALE, TRANSFER OR OTHER DISPOSITION OF THIS
WARRANT OR SAID SHARES MAY BE EFFECTED WITHOUT (i) AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO UNDER APPLICABLE STATE SECURITIES
LAWS, OR (ii) AN EXEMPTION FROM REGISTRATION UNDER SUCH LAWS IS
AVAILABLE.
Warrant Xx. 00 XXXXX XXXXXXXX XXXXXXX No. of Shares 100,000
To Subscribe for and Purchase Common Stock of
CONSYGEN, INC.
THIS CERTIFIES that, for value received, Irvington International Limited
(together with any subsequent transferees of all or any portion of this Warrant,
the "Holder"), is entitled, upon the terms and subject to the conditions
hereinafter set forth, to subscribe for and purchase from CONSYGEN, INC., a
Texas corporation (hereinafter called the "Company"), at the price hereinafter
set forth in Section 2, up to one hundred thousand (100,000) fully paid and
non-assessable shares (the "Shares") of the Company's Common Stock, $.003 par
value per share (the "Common Stock").
1. DEFINITIONS. As used herein the following term shall have the
following meaning:
"ACT" means the Securities Act of 1933, as amended, or a successor
statute thereto and the rules and regulations of the Securities and Exchange
Commission issued under that Act, as they each may, from time to time, be in
effect.
2. PURCHASE RIGHTS. Subject to this Section 2, the purchase rights
represented by this Warrant shall be exercisable by the Holder in whole or in
part commencing one (1) year from the date hereof.
Subject to the terms hereof, the purchase rights represented by this
Warrant shall expire three (3) years from the date hereof.
Subject to this Section 2, this Warrant may be exercised for Shares at a
price of five dollars ($5.00) per share, subject to adjustment as provided in
Section 6 (the "Warrant Purchase Price").
This Warrant may be redeemed by the Company upon 60 days written notice
to the Holder hereof at a price equal to the product of the number of Shares
issuable hereunder and the par value of the Shares ($.003). The Company may
exercise its redemption right by delivering
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or mailing to the Holder written notice of redemption to the address according
to the Company's records. Within 60 days after the date of the Company's notice
of redemption hereunder, the Holder shall tender to the Company at its principal
offices the certificate or certificates representing this Warrant, all in form
suitable for transfer of this Warrant to the Company, together with such
documents as the Company may reasonably require to effectuate such transfer.
Upon its receipt of such certificate(s), the Company shall deliver or mail to
the Holder a check in the amount of the redemption price determined in
accordance herewith. After the time at which the certificate(s) is required to
be delivered to the Company for transfer to the Company hereunder, the Holder
shall have no rights hereunder, including without limitation the right to
exercise the purchase rights evidenced by this Warrant. In the event that the
Company elects to exercise its redemption right hereunder, it may do so by
canceling the certificate(s) evidencing this Warrant and depositing the
redemption price determined hereunder in a bank account for the benefit of the
Holder, whereupon this Warrant shall be, for all purposes, canceled and neither
the Holder nor any transferee shall have any rights hereunder. In addition to
any other legal or equitable remedies which it may have, the Company may enforce
its rights by actions for specific performance (to the extent permitted by law).
3. EXERCISE OF WARRANT. Subject to Section 2 above, the purchase
rights represented by this Warrant may be exercised, in whole or in part and
from time to time, by the surrender of this Warrant and the duly executed Notice
of Exercise (the form of which is attached as Exhibit A) at the principal office
of the Company and by the payment to the Company, by check, of an amount equal
to the then applicable Warrant Purchase Price per share multiplied by the number
of Shares then being purchased. Upon exercise, the Holder shall be entitled to
receive, within a reasonable time, a certificate or certificates, issued in the
Holder's name or in such name or names as the Holder may direct, for the number
of Shares so purchased. The Shares so purchased shall be deemed to be issued as
of the close of business on the date on which this Warrant shall have been
exercised.
4. SHARES TO BE ISSUED; RESERVATION OF SHARES. The Company covenants
that the Shares that may be issued upon the exercise of the purchase rights
represented by this Warrant will, upon issuance in accordance herewith, be fully
paid and non-assessable, and free from all liens and charges with respect to the
issue thereof. During the period within which the purchase rights represented by
the Warrant may be exercised, the Company will at all times have authorized and
reserved, for the purpose of issuance upon exercise of the purchase rights
represented by this Warrant, a sufficient number of shares of its Common Stock
to provide for the exercise of the right represented by this Warrant.
5. NO FRACTIONAL SHARES. No fractional shares shall be issued upon
the exercise of this Warrant. In lieu thereof, a cash payment shall be made
equal to such fraction multiplied by the fair market value of such shares of
Common Stock, as determined in good faith by the Company's Board of Directors.
6. ADJUSTMENTS OF WARRANT PURCHASE PRICE AND NUMBER OF SHARES. If
there shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split or
other change in the corporate
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structure of the Company, appropriate adjustments shall be made by the Board of
Directors of the Company (or if the Company is not the surviving corporation in
any such transaction, the Board of Directors of the surviving corporation) in
the aggregate number and kind of shares subject to this Warrant, and the number
and kind of shares and the price per share then applicable to shares covered by
the unexercised portion of this Warrant.
7. NO RIGHTS AS SHAREHOLDERS. This Warrant does not entitle the
Holder to any voting rights or other rights as a shareholder of the Company
prior to exercise of this Warrant and the payment for the Shares so purchased.
Notwithstanding the foregoing, the Company agrees to transmit to the Holder such
information, documents and reports as are generally distributed to holders of
the capital stock of the Company concurrently with the distribution thereof to
the shareholders. Upon valid exercise of this Warrant and payment for the Shares
so purchased in accordance with the terms of the Warrant, the Holder or the
Holder's designee, as the case may be, shall be deemed a shareholder of the
Company.
8. SALE OR TRANSFER OF THE WARRANT AND THE SHARES; LEGEND. The
Warrant and the Shares shall not be sold or transferred unless either (i) they
first shall have been registered under applicable State Securities laws, or (ii)
such sale or transfer is exempt from the registration requirements of such laws.
Each certificate representing any Warrant shall bear the legend set out on page
1 hereof. Each certificate representing any Shares shall bear a legend
substantially in the following form, as appropriate:
9. THE SHARES EVIDENCED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO UNDER APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO
AN EXEMPTION UNDER APPLICABLE STATE SECURITIES LAWS.
10. Such Warrant and Shares may be subject to additional restrictions
on transfer imposed under applicable state and federal securities law.
11. MODIFICATIONS AND WAIVERS. This Warrant may not be changed,
waived, discharged or terminated except by an instrument in writing signed by
the party against which enforcement of the same is sought.
12. NOTICES. Any notice, request or other document required or
permitted to be given or delivered to the Holder or the Company shall be
delivered, or shall be sent by certified or registered mail, postage prepaid, to
the Holder at its address shown on the books of the Company or in the case of
the Company, at the address indicated therefor on the signature page of this
Warrant, or, if different, at the principal office of the Company.
13. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT. The Company
covenants with the Holder that upon its receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant or any stock certificate and, in the case of
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any such loss, theft or destruction, of an indemnity or security reasonably
satisfactory to it, and upon reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of this Warrant
or stock certificate, if mutilated, the Company will make and deliver a new
Warrant or stock certificate, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant or stock certificate.
14. REPRESENTATIONS AND WARRANTIES OF HOLDER. By accepting this
Warrant, the Holder represents and warrants that he, she or it is acquiring this
Warrant and the Shares for his, her or its own account, for investment and not
with a view to, or for sale in connection with, any distribution thereof or any
part thereof. Holder represents and warrants that he, she or it is (a)
experienced in the evaluation of businesses similar to the Company, (b) has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Company, (c) has the
ability to bear the economic risks of an investment in the Company, (d) has been
furnished with or has had access to such information as is specified in
subparagraph (b)(2) of Rule 502 promulgated under the Act and (e) has been
afforded the opportunity to ask questions of and to receive answers from the
officers of the Company and to obtain any additional information necessary to
make an informed investment decision with respect to an investment in the
Company.
15. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon
any corporation succeeding the Company by merger, consolidation or acquisition
of all or substantially all of the Company's assets, and all of the obligations
of the Company relating to the Shares issuable upon exercise of this Warrant
shall survive the exercise and termination of this Warrant and all of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the Holder.
16. GOVERNING LAW. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Texas.
IN WITNESS WHEREOF, CONSYGEN, INC. has caused this Warrant to be executed
by its officer thereunto duly authorized.
ORIGINAL ISSUANCE AS OF: November 10, 1997
CONSYGEN, INC.
/s/ Xxxxxx X. Xxxxxxx
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By: Xxxxxx X. Xxxxxxx, Chairman
Address: 00000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
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EXHIBIT A
NOTICE OF EXERCISE
To: CONSYGEN, INC.
1. The undersigned hereby elects to purchase _________ shares of
Common Stock of CONSYGEN, INC. pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price of such shares in full.
2. Please issue a certificate or certificates representing said
shares in the name of the undersigned or in such other name or names as are
specified below.
3. The undersigned represents that the aforesaid shares of Common
Stock are being acquired for the account of the undersigned for investment and
not with a view to, or for resale in connection with, the distribution thereof
and that the undersigned has no present intention of distributing or reselling
such shares. The undersigned further represents that such shares shall not be
sold or transferred unless either (1) they first shall have been registered
under applicable state securities laws or (ii) or an exemption from applicable
state registration requirements is available.
4. In the event of partial exercise, please re-issue an appropriate
Warrant exercisable into the remaining shares.
IRVINGTON INTERNATIONAL LIMITED
By: ______________________________________
Name:_________________________________
Title:________________________________
Address:___________________________________
___________________________________________
(Signature)
___________________________________________
(Date)
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