ESCROW AGREEMENT
This
ESCROW AGREEMENT (this “Agreement”) made as of the ___day of
, 2008 by and among
PolyMedix, Inc. (the “Issuer”) whose address appears on the Information Sheet (as defined herein)
attached to this Agreement, Fordham Financial Management, Inc. and Xxxxxx Securities, LLC, as
Placement Agents (the “Placement Agents”) whose name and address appear on the Information Sheet
and American Stock Transfer & Trust Company LLC with an address at 00 Xxxxxx Xxxx, Xxx Xxxx, XX
00000 (the “Escrow Agent”).
WITNESSETH:
WHEREAS, the Issuer proposes to sell in a public offering (Registration statement on Form S-1,
file no. 333-151084) up to ___Units for a maximum dollar amount of $ (the “Offering
Amount”), each Unit consisting of one share of Common Stock and one Warrant to purchase one share
of Common Stock of the Issuer (the “Units”) on a “best efforts” basis (the “Offering”) to investors
(the subscribers of the Units pursuant to this offering are hereinafter referred to as
“Investors”), it being understood that there is no minimum Offering Amount and the Placement Agents
and the Issuer may elect to close on any Units sold in the Offering at one or more closings;
WHEREAS, the Issuer and the Placement Agents propose to establish an escrow account (the
“Escrow Account”), to which subscription monies which are received by the Escrow Agent from the
Placement Agents in connection with such public offering are to be credited, and the Escrow Agent
is willing to establish the Escrow Account on the terms and subject to the conditions hereinafter
set forth; and
WHEREAS, the Escrow Agent has agreed to establish a special bank account at X.X. Xxxxxx Xxxxx
Bank, 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the “Bank”) into which the subscription monies, which
are received by the Escrow Agent from the Placement Agents and credited to the Escrow Account, are
to be deposited.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. Information Sheet. Each capitalized term not otherwise defined in this Agreement
shall have the meaning set forth for such term on the information sheet which is attached to this
Agreement as Exhibit A and is incorporated by reference herein and made a part hereof (the
“Information Sheet”).
2. Establishment of the Bank Account.
2.1 The Escrow Agent shall establish a non-interest-bearing bank account at the branch of Bank
selected by the Escrow Agent, and bearing the designation set forth on the Information Sheet
(heretofore defined as the “Bank Account”). The purpose of the Bank
Account is for (a) the deposit of all subscription monies (checks or wire transfers) which are
received by the Placement Agents from prospective purchasers of the Units and are delivered by the
Placement Agents to the Escrow Agent (the “Escrow Amounts”), (b) the holding of Escrow Amounts
which are collected through the banking system and (c) the disbursement of Escrow Amounts, all as
described herein.
2.2 On or before the date of the initial deposit in the Bank Account pursuant to this
Agreement, the Placement Agents shall notify the Escrow Agent in writing of the date of the
commencement of the Offering (the “Effective Date”), and the Escrow Agent shall not be required to
accept any amounts for credit to the Escrow Account or for deposit in the Bank Account prior to its
receipt of such notification.
2.3 The “Offering Period,” which shall be deemed to commence on the Effective Date, shall
consist of the number of calendar days or business days set forth on the Information Sheet. The
Offering Period shall be extended at the mutual discretion of the Issuer and the Placement Agents
(the “Extension Period”) only if the Escrow Agent shall have received written notice thereof prior
to the expiration of the Offering Period. An Extension Period, which shall be deemed to commence on
the next calendar day following the expiration of the Offering Period shall consist of the number
of calendar days (if any) set forth on the Information Sheet. The last day of the Offering Period,
or the last day of the final Extension Period, as the case may be (if the Escrow Agent has received
written notice thereof as herein above provided), is referred to herein as the “Termination Date”.
Except as provided in Section 4.3 hereof, after the Termination Date, the Placement Agents shall
not deposit, and the Escrow Agent shall not accept, any additional amounts representing payments by
prospective purchasers.
3. Deposits to the Bank Account.
3.1 The Placement Agents shall promptly deliver to the Escrow Agent all monies which it
receives from prospective purchasers of the Units, which monies shall be in the form of checks or
wire transfers, provided however that “Cashiers” checks and “Money Orders” must be in amounts
greater than $10,000; Cashiers checks or Money Orders in amounts less than $10,000 shall be
rejected by the Escrow Agent. Upon the Escrow Agent’s receipt of such monies, they shall be
credited to the Escrow Account. All checks delivered to the Escrow Agent shall be made payable
substantially as follows to “AST&T AAF PolyMedix, Inc.” Any check payable other than to the Escrow
Agent as required hereby shall be at the sole discretion of the Escrow Agent after notification to
the Issuer and Placement Agent either accepted for deposit into the Escrow Account or returned to
the prospective purchaser, or if the Escrow Agent has insufficient information to do so, then to
the Placement Agents (together with any Subscription Information, as defined below or other
documents delivered therewith) by noon of the next business day following receipt of such check by
the Escrow Agent, and such check shall be deemed not to have been delivered to the Escrow Agent
pursuant to the terms of this Agreement.
3.2 Promptly after receiving subscription monies as described in Section 3.1, the Escrow Agent
shall deposit the same into the Bank Account. Amounts of monies so deposited are hereinafter
referred to as “Escrow Amounts”. The Escrow Agent shall cause the Bank to process all Escrow
Amounts for collection through the banking system. Simultaneously
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with each deposit to the Escrow Account, the Placement Agents shall inform the Escrow Agent in
writing of the name, address, and the tax identification number of the purchaser, the amount of
Units subscribed for by such purchase, and the aggregate dollar amount of such subscription
(collectively, the “Subscription Information”).
3.3 The Escrow Agent shall not be required to accept for credit to the Escrow Account or for
deposit into the Bank Account checks which are not accompanied by the appropriate Subscription
Information, which at minimum shall include the name address, tax identification number and the
number of Units.
3.4 Amounts representing payments by prospective purchasers, whether by check or wire, except
amounts received after the Escrow Agent’s regular business hours, shall be accepted by the Escrow
Agent in the Escrow Account on the next business day.
3.5 Only those Escrow Amounts, which have been deposited in the Bank Account and which have
cleared the banking system and have been collected by the Escrow Agent, are herein collectively
referred to as the “Funds.”
3.6 If the Offering is terminated without any Funds accepted by the Issuer, the Escrow Agent
shall refund all Funds directly to subscribers without interest or deduction therefrom.
4. Disbursement from the Bank Account.
4.1 [Left blank intentionally.]
4.2 Subject to Section 4.3 below, if at any time up to the close of regular banking hours on
the Termination Date, the Escrow Agent determines that subscriptions have been received toward the
sale of the Offering Amount, upon receipt of written instructions jointly signed by the Issuer and
the Placement Agents, the Escrow Agent shall promptly disburse the Funds, by drawing checks on the
Bank Account or wiring Funds from the account. It is agreed by the parties that there is no minimum
Offering Amount required to be sold in the Offering and that one or more closings may occur before,
on or after the Termination Date.
4.3 This Section 4.3 applies only if a Collection Period (as defined below) has been provided
for by the appropriate indication on the Information Sheet. If the Escrow Agent has on hand at the
close of business on the Termination Date any uncollected amounts of the Offering Amount, the
number of business days set forth on the Information Sheet (the “Collection Period”) shall be
utilized to allow such uncollected amounts to clear the banking system. During the Collection
Period, the Placement Agents shall not deposit, and the Escrow Agent shall not accept, any
additional amounts; provided, however, that such amounts as were received by the
Placement Agents by the close of business on the Termination Date may be deposited with the Escrow
Agent by noon of the next business day following the Termination Date. Any uncollected funds which
clear the banking system after the Termination Date and the Collection Period shall be promptly
returned directly to each investor without interest or deduction therefrom.
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4.4 Upon the final disbursement of the Funds pursuant to the terms of this Article 4, the
Escrow Agent shall be relieved of further obligations and released from all liability under this
Agreement. It is expressly agreed and understood that in no event shall the aggregate amount of
payments made by the Escrow Agent exceed the amount of the Funds.
5. Rights, Duties and Responsibilities of Escrow Agent. It is understood and agreed
that the duties of the Escrow Agent are purely ministerial in nature, and that:
5.1 The Escrow Agent shall notify the Placement Agents, on a daily basis, of the Escrow
Amounts which have been deposited in the Bank Account and of the amounts, constituting the Funds,
which have cleared the banking system and have been collected by the Escrow Agent.
5.2 The Escrow Agent shall not be responsible for or be required to enforce any of the terms
or conditions of the placement agent agreement or any other agreement between the Placement Agents
and the Issuer nor shall the Escrow Agent be responsible for the performance by the Placement
Agents or the Issuer of their respective obligations under this Agreement.
5.3 The Escrow Agent shall not be required to accept from the Placement Agents (or the Issuer)
any Subscription Information pertaining to prospective purchasers unless such Subscription
Information is accompanied by checks or wire transfers meeting the requirements of Section 3.1, nor
shall the Escrow Agent be required to keep records of any information with respect to payments
deposited by the Placement Agents (or the Issuer) except as pursuant to the Escrow Agent’s normal
record keeping practices; however, the Escrow Agent shall notify the Placement Agents within a
reasonable time of any discrepancy between the amount set forth in any Subscription Information and
the amount delivered to the Escrow Agent therewith. Such amount need not be accepted for deposit
in the Escrow Account until such discrepancy has been resolved.
5.4 The Escrow Agent shall be under no duty or responsibility to enforce collection of any
check delivered to it hereunder. The Escrow Agent, within a reasonable time, shall return to the
respective applicable Placement Agent any check received which is dishonored, together with the
Subscription Information, if any, which accompanied such check.
5.5 If the Escrow Agent is uncertain as to its duties or rights hereunder or shall receive
instructions with respect to the Bank Account, the Escrow Amounts or the Funds which, in its sole
determination, are in conflict either with other instructions received by it or with any provision
of this Agreement, it shall be entitled to hold the Escrow Amounts, the Funds, or a portion
thereof, in the Bank Account pending the resolution of such uncertainty to the Escrow Agent’s sole
satisfaction, by final judgment of a court or courts of competent jurisdiction or otherwise.
5.6 The Escrow Agent shall not be liable for any action taken or omitted hereunder, or for the
misconduct of any employee, agent or attorney appointed by it, except in the case of willful
misconduct or gross negligence. The Escrow Agent shall be entitled to
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consult with counsel of its own choosing and shall not be liable for any action taken,
suffered or omitted by it in accordance with the advice of such counsel.
5.7 The Escrow Agent shall have no responsibility at any time to ascertain whether or not any
security interest exists in the Escrow Amounts, the Funds or any part thereof or to file any
financing statement under the Uniform Commercial Code with respect to the Funds or any part
thereof.
6. Amendment; Resignation or Removal of Escrow Agent. This Agreement may be altered
or amended only with the written consent of the Issuer, the Placement Agents and the Escrow Agent.
The Escrow Agent may resign and be discharged from its duties hereunder at any time by giving
written notice of such resignation to the Issuer and the Placement Agents specifying a date when
such resignation shall take effect and upon delivery of the Funds to the successor escrow agent
designated by the Issuer in writing. Such successor Escrow Agent shall become the Escrow Agent
hereunder upon the resignation date specified in such notice. If the Issuer fails to designate a
successor Escrow Agent within thirty (30) days after such notice, then the resigning Escrow Agent
shall promptly refund the amount in the Funds to each prospective purchaser, without interest
thereon or deduction. The Escrow Agent shall continue to serve until its successor accepts the
escrow and receives the Funds. The Issuer shall have the right at any time to remove the Escrow
Agent and substitute a new escrow agent by giving notice thereof to the Escrow Agent then acting.
Upon its resignation and delivery of the Funds as set forth in this Section 6, the Escrow Agent
shall be discharged of and from any and all further obligations arising in connection with the
escrow contemplated by this Agreement. Without limiting the provisions of Section 8 hereof, the
resigning Escrow Agent shall be entitled to be reimbursed by the Issuer and the Placement Agents
for any expenses incurred in connection with its resignation, transfer of the Funds to a successor
escrow agent or distribution of the Funds pursuant to this Section 6.
7. Representations and Warranties. The Issuer and the Placement Agents hereby
severally represent and warrant to the Escrow Agent that:
7.1 No party other than the parties hereto and the prospective purchasers have, or shall have,
any lien, claim or security interest in the Escrow Amounts or the Funds or any part thereof.
7.2 No financing statement under the Uniform Commercial Code is on file in any jurisdiction
claiming a security interest in or describing (whether specifically or generally) the Escrow
Amounts or the Funds or any part thereof.
7.3 The Subscription Information submitted with each deposit shall, at the time of submission
and at the time of the disbursement of the Funds, be deemed a representation and warranty that such
deposit represents a bona fide payment by the purchaser described therein for the amount of Units
set forth in such Subscription Information.
7.4 All of the information contained in the Information Sheet is, as of the date hereof, and
will be, at the time of any disbursement of the Funds, true and correct.
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7.5 Reasonable controls have been established and required due diligence performed to comply
with “Know Your Customer” regulations, USA Patriot Act, Office of Foreign Asset Control (OFAC)
regulations and the Bank Secrecy Act.
8. Fees and Expenses. The Escrow Agent shall be entitled to the Escrow Agent Fees set
forth on the Information Sheet, payable as and when stated therein. In addition, the Issuer and
the Placement Agents jointly and severally agree to reimburse the Escrow Agent for any reasonable
and documented expenses incurred in connection with this Agreement, including, but not limited to,
reasonable and documented counsel fees up to a maximum of one thousand dollars ($1000.00).
9. Indemnification and Contribution.
9.1 The Issuer and the Placement Agents (collectively referred to as the “Indemnitors”)
jointly and severally agree to indemnify the Escrow Agent and its officers, directors, employees,
agents and shareholders (collectively referred to as the “Indemnitees”) against, and hold them
harmless of and from, any and all loss, liability, cost, damage and expense, including without
limitation, reasonable counsel fees, which the Indemnitees may suffer or incur by reason of any
action, claim or proceeding brought against the Indemnitees arising out of or reasonably relating
to this Agreement or any transaction to which this Agreement reasonably relates, unless such
action, claim or proceeding is the result of the willful misconduct or gross negligence of the
Indemnitees.
9.2 If the indemnification provided for in Section 9.1 is applicable, but for any reason is
held to be unavailable, the Indemnitors shall contribute such amounts as are just and equitable to
pay, or to reimburse the Indemnitees for, the aggregate of any and all losses, liabilities, costs,
damages and expenses, including reasonable counsel fees, actually incurred by the Indemnitees as a
result of or in connection with, and any amount paid in settlement of, any action, claim or
proceeding arising out of or reasonably relating to any actions or omissions of the Indemnitors.
9.3 The provisions of this Article 9 shall survive any termination of this Agreement, whether
by disbursement of the Funds, resignation of the Escrow Agent or otherwise.
10. Termination of Agreement. This Agreement shall terminate on the final disposition
of the Funds pursuant to Section 4, provided that the rights of the Escrow Agent and the
obligations of the other parties hereto under Section 9 shall survive the termination hereof and
the resignation or removal of the Escrow Agent.
11. Governing Law and Assignment. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York, without regard to the conflicts of laws
principles thereof, and shall be binding, upon the parties hereto and their respective successors
and assigns; provided, however, that any assignment or transfer by any party of its
rights under this Agreement or with respect to the Escrow Amounts or the Funds shall be void as
against the Escrow Agent unless (a) written notice thereof shall be given to the
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Escrow Agent; and (b) the Escrow Agent shall have consented in writing to such assignment or
transfer.
12. Notices. All notices required to be given in connection with this Agreement shall
be sent by registered or certified mail, return receipt requested, or by hand delivery with receipt
acknowledged, or by facsimile or email with copy to follow by United States Postal Service or by
the Express Mail service offered by the United States Postal Service, and addressed, if to the
Issuer or the Placement Agents, at their respective addresses set forth on the Information Sheet,
and if to the Escrow Agent, at its address set forth above, to the attention of the Trust
Department.
13. Severability. If any provision of this Agreement or the application thereof to
any person or circumstance shall be determined to be invalid or unenforceable, the remaining
provisions of this Agreement or the application of such provision to persons or circumstances other
than those to which it is held invalid or unenforceable shall not be affected thereby and shall be
valid and enforceable to the fullest extent permitted by law.
14. Execution in Several Counterparts. This Agreement, including the attached Escrow
Agreement Information Sheet, may be executed in several counterparts or by separate instruments and
by facsimile transmission and all of such counterparts and instruments shall constitute one
agreement, binding on all of the parties hereto.
15. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all prior agreements and
understandings (written or oral) of the parties in connection therewith.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first
above written.
| AMERICAN STOCK TRANSFER & TRUST COMPANY LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXX SECURITIES, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| FORDHAM FINANCIAL MANAGEMENT, INC. |
||||
| By: | ||||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Chief Executive officer | |||
| POLYMEDIX, INC. |
||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President Finance, Chief Financial Officer and Secretary | |||
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EXHIBIT A
ESCROW AGREEMENT INFORMATION SHEET
1. |
The Issuer | |||
| Name: | PolyMedix, Inc. | |||
| Address: | 000 Xxxxxx-Xxxxxxx Xxxx, Xxxxx 000 | |||
| Xxxxxx, XX 00000 | ||||
| Facsimile: | ||||
| Email: | ||||
| with copy to: | ||||
| Xxxxxx Xxxxxxxx LLP | ||||
| 000 Xxxxxx Xxxx | ||||
| 000 Xxxxxxx Xxxx | ||||
| Xxxxxx, XX 00000-0000 | ||||
| Attn: Xxxxxxx X. Xxxxxx | ||||
| Facsimile: (000) 000 0000 | ||||
| Email: xxxxxxx@xxxxxxxxx.xxx | ||||
| State of incorporation or organization: Delaware | ||||
| 2. | The Placement Agents | |||
| Name: | Fordham Financial Management, Inc. | |||
| Address: | 00 Xxxx Xxxxxx, 00xx Xxxxx | |||
| Xxx Xxxx, XX 00000 | ||||
| Facsimile: (000) 000-0000 | ||||
| Email: xxxxxxx@xxxxxxxxxxxxxxxx.xxx, | ||||
| and | ||||
| Xxxxxx Securities, LLC | ||||
| 000 Xxxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Facsimile: | ||||
| Email: | ||||
| with a copy to: | ||||
| Xxxxxx Xxxxx, Esq. | ||||
| Xxxxx & Xxxxx, PLLC | ||||
| 0000 Xxx Xxxxxxx Xxxx, Xxxxx 000 | ||||
| Xxxxxxxx, XX 00000 | ||||
| Facsimile: (000) 000-0000 | ||||
| Email: xxxxxxx@xxx.xxx | ||||
| and | ||||
| Xxxxxx X. Xxxxx, Esq. | ||||
| Xxxxxxx Xxxxxxxxx & Xxxxx LLP | ||||
| 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxx Xxxx, XX 00000 | ||||
| Facsimile: | ||||
| Email: | ||||
| Facsimile: 000-000-0000 | ||||
| Email: xxxxxx@xxxxxxxxxxxxxxxx.xxx |
3. |
The Shares | |
| Description of the Units to be offered: Units, each consisting of one share of Common Stock and one Warrant to purchase one share of Common Stock. | ||
| Offering price per share/unit/other: $___ per Unit. | ||
4. |
Minimum Amount Required for Disbursement of the Escrow Account | |
| Aggregate dollar amount which must be collected before the Escrow Account may be disbursed to the Issuer ("Minimum Dollar Amount"): Not Applicable. | ||
| Total amount of Units which must be subscribed for before the Escrow Account may be disbursed to the Issuer ("Minimum Shares Amount"): Not Applicable. | ||
| Maximum Amount - The maximum number of Units to be sold is ___ Units and the maximum dollar amount is $ . | ||
5. |
Plan of Distribution of the Shares | |
| Offering Period: from , 2008 to , 2008 |
||
| Extension Period, if any: __ days |
||
| Collection Period, if any: 20 business days | ||
6. |
Title of Bank Account: | |
| AST&T Escrow Agent for PolyMedix, Inc. | ||
7. |
Checks payable: AST&T AAF PolyMedix, Inc. | |
8. |
Escrow Agent | |
| American Stock Transfer & Trust Company LLC | ||
| 00 Xxxxxx Xxxx | ||
| Xxx Xxxx, XX 00000 |
9. |
Escrow Agent Fees | |
| $7,500.00 upon execution of this Agreement. All other fees will be mutually agreed upon by the Issuer and the Escrow Agent. | ||
10. |
Federal I.D. No. | |
| 00-0000000 |
