Form of Subscription Agreement SUBSCRIPTION AGREEMENT
Exhibit 4.3
______ __, 2007
Gentlemen:
The undersigned (the “Investor”) hereby confirms its agreement with you as follows:
1. This Subscription Agreement (this “Agreement”) is made as of the date set forth below
between Polymedix, Inc., a Delaware corporation (the “Company”), and the Investor.
2. The Company has authorized the sale and issuance to certain investors of up to an aggregate
of
units (the “Units”), each consisting of (i) ___ shares (each a “Share” and
collectively, the “Shares”) of its common stock, par value $0.001 per share (the “Common Stock”),
and (ii) warrants (“Warrant,” collectively, the “Warrants”) to purchase ___shares of Common Stock
(and the fractional amount being the “Warrant Ratio”), subject to adjustment by the Company’s Board
of Directors, or a committee thereof, for a purchase price of $ per Unit (the “Purchase
Price”). The Shares issuable upon exercise of the Warrants are referred to herein as “Warrant
Shares” and, together with the Units, the Shares and the Warrants, are collectively referred to
herein as the “Securities.”
3. The offering and sale of the Units (the “Offering”) is being made pursuant to (1) an
effective Registration Statement on Form SB-2 (Registration No. 333-142787) (filed by the Company
with the Securities and Exchange Commission (the “Commission”)) (the “Registration Statement”), (2)
if applicable, certain “free writing prospectuses”(as that term is defined in Rule 405 under the
Securities Act of 1933, as amended), that have or will be filed with the Commission and delivered
to the Investor on or prior to the date hereof, (3) a preliminary prospectus dated May 25, 2007
(the “Preliminary Prospectus”), and (4) a final prospectus (together with the Preliminary
Prospectus, the “Prospectus”) containing certain supplemental information regarding the Units and
terms of the Offering that will be filed with the Commission and delivered to the Investor (or made
available to the Investor by the filing by the Company of an electronic version thereof with the
Commission) along with the Company’s counterpart to this Agreement.
4. The Company and the Investor agree that the Investor will purchase from the Company and the
Company will issue and sell to the Investor the Units set forth below for the aggregate purchase
price set forth below. The Units shall be purchased pursuant to the Terms and Conditions for
Purchase of Units attached hereto as Annex I and incorporated herein by this reference as if fully
set forth herein. The Investor acknowledges that the Offering is not being underwritten by the
placement agents (the “Placement Agents”) named in the Prospectus Supplement and that there is no
minimum offering amount.
5. The manner of settlement of the Shares included in the Units purchased by the Investor
shall be determined by such Investor as follows:
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| Delivery by electronic book-entry at The Depository Trust Company (“DTC”), registered in the Investor’s name and address as set forth below, and released by The American Stock Transfer & Trust Company, the Company’s transfer agent (the “Transfer Agent”) (attention: (___) ___-___), to the Investor at the Closing (as defined in Section 3.1 of Annex A hereto). NO LATER THAN TWO (2) BUSINESS DAYS AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL: |
| (I) | DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL AT CUSTODIAN (“DWAC”) INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND | ||
| (II) | REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE UNITS BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT: | ||
| JPMorgan Chase Bank NA ABA # 000000000 Account # 304951404 Account Name: Polymedix / Xxxxxxx ref: [subscriber name] Phone: (___) ___-___ |
IT IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE PROPER
ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC IN A TIMELY
MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE UNITS OR DOES NOT
MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE UNITS MAY NOT BE DELIVERED AT
CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING ALTOGETHER.
6. The executed Warrant shall be delivered in accordance with the terms set forth in Annex I
hereto.
7. The Investor represents that, except as set forth below, (a) it has had no position, office
or other material relationship within the past three years with the Company or persons known to it
to be affiliates of the Company, (b) it is not a NASD member or an Associated Person (as such term
is defined under the NASD Membership and Registration Rules Section 1011) as of the Closing, and
(c) neither the Investor nor any group of Investors (as identified in a public filing made with the
Commission) of which the Investor is a part in connection with the Offering of the Units, acquired,
or obtained the right to acquire, 20% or more of the Common Stock (or securities convertible into
or exercisable for Common Stock) or the voting power of the Company on a post-transaction basis.
Exceptions: (If no exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
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8. The Investor represents that it has received or can obtain on the SEC’s Xxxxx filing system
the Prospectus, which is part of the Company’s Registration Statement, the Preliminary Prospectus,
the documents incorporated by reference therein, and any free writing prospectus (collectively, the
“Disclosure Package”), prior to or in connection with the receipt of this Agreement along with the
Company’s counterpart to this Agreement.
9. No offer by the Investor to buy Units will be accepted and no part of the Purchase Price
will be delivered to the Company until the Company has accepted such offer by countersigning a copy
of this Agreement, and any such offer may be withdrawn or revoked, without obligation or commitment
of any kind, at any time prior to the Company (or a Placement Agent on behalf of the Company)
sending (in writing, facsimile or by electronic mail) notice of its acceptance of such offer. An
indication of interest will involve no obligation or commitment of any kind until this Agreement is
accepted and countersigned by or on behalf of the Company.
Number of Units:
Purchase Price Per Unit: $
Aggregate Purchase Price: $
Purchase Price Per Unit: $
Aggregate Purchase Price: $
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Please confirm that the foregoing correctly sets forth the agreement between us by signing in
the space provided below for that purpose.
| Dated as of: _____ __, 2007 | ||||
| INVESTOR | ||||
| By: | ||||
| Print Name: | ||||
| Title: | ||||
| Address: | ||||
Agreed and
Accepted this ___ day of , 2007:
POLYMEDIX, INC.
By: |
||||
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF UNITS
1. Authorization and Sale of the Units; Defined Terms.
1.1 Subject to the terms and conditions of this Agreement, the Company has authorized the sale
of the Units.
1.2 Capitalized terms used herein but not otherwise defined have the meanings ascribed to them
in the Agreement.
2. Agreement to Sell and Purchase the Units; Placement Agents.
2.1 At the Closing (as defined in Section 3.1), the Company will sell to the Investor, and the
Investor will purchase from the Company, upon the terms and conditions set forth herein, the number
of Units set forth on the last page of the Agreement to which these Terms and Conditions for
Purchase of Units are attached as Annex I (the “Signature Page”) for the aggregate purchase price
therefor set forth on the Signature Page.
2.2 The Company proposes to enter into substantially this same form of Subscription Agreement
with certain other investors (the “Other Investors”) and expects to complete sales of Units to
them. The Investor and the Other Investors are hereinafter sometimes collectively referred to as
the “Investors,” and this Agreement and the Subscription Agreements executed by the Other Investors
are hereinafter sometimes collectively referred to as the “Agreements.”
2.3 Investor acknowledges that the Company intends to pay Xxxxxxx & Company, LLC and WBB
Securities, LLC (collectively, the “Placement Agents”) a fee (the “Placement Fee”) in respect of
the sale of Units to the Investor.
2.4 The Company has entered into a Placement Agency Agreement, dated July ___, 2007 (the
“Placement Agreement”), with the Placement Agents that contains certain representations,
warranties, covenants, and agreements of the Company that may be relied upon by the Investor, which
shall be a third party beneficiary thereof. A copy of the Placement Agreement is available upon
request.
3. Closings and Delivery of the Units and Funds.
3.1 Closing. The completion of the purchase and sale of the Units (the “Closing”) shall occur
at a place and time (the “Closing Date”) to be specified by the Company and the Placement Agents,
and of which the Investors will be notified in advance by the Placement Agents, in accordance with
Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
At the Closing, (a) the Company shall cause the Transfer Agent to deliver to the Investor the
number of Shares set forth on the Signature Page registered in the name of the Investor or, if so
indicated on the Investor Questionnaire attached hereto as Schedule A, in the name of a nominee
designated by the Investor and as contemplated
Annex I- Page 1
by procedures set forth in the Agreement and the Placement Agreement, (b) the Company shall
cause to be delivered to the Investor a Warrant to purchase a number of whole Warrant Shares
determined by multiplying the number of Shares set forth on the signature page by the Warrant Ratio
and rounding down to the nearest whole number and (c) the aggregate purchase price for the Units
being purchased by the Investor will be delivered by or on behalf of the Investor to the Company.
3.2 (a) Conditions to the Company’s Obligations. The Company’s obligation to issue and sell
the Units to the Investor shall be subject to: (i) the receipt by the Company of the purchase price
for the Units being purchased hereunder as set forth on the Signature Page and (ii) the accuracy of
the representations and warranties made by the Investor and the fulfillment of those undertakings
of the Investor to be fulfilled prior to the Closing Date.
(b) Conditions to the Investor’s Obligations. The Investor’s obligation to purchase the Units
will be subject to the accuracy of the representations and warranties made by the Company contained
in the Placement Agreement and the fulfillment of those undertakings of the Company to be fulfilled
prior to the Closing Date those contained in the Placement Agreement and the Subscription
Agreement, and to the condition that the Placement Agents shall not have determined that the
conditions to the closing in the Placement Agreement have not been satisfied. The Investor’s
obligations are expressly not conditioned on the purchase by any or all of the Other Investors of
the Units that they have agreed to purchase from the Company or the issuance of any minimum amount
of Units by the Company.
3.3 Delivery of Funds by Electronic Book-Entry at The Depository Trust Company. No later
than two (2) business days after the execution of this Agreement by the Investor and the
Company, the Investor shall remit by wire transfer the amount of funds equal to the aggregate
purchase price for the Units being purchased by the Investor to the following account designated by
the Company and the Placement Agents pursuant to the terms of that certain Escrow Agreement (the
“Escrow Agreement”) dated as of ___, 2007, by and among the Company, the Placement Agents and
(the “Escrow Agent”):
JPMorgan Chase Bank NA
ABA # 000000000
Account # 304951404
Account Name: Polymedix / Xxxxxxx
ref: [subscriber name] Phone: (___) ___-____
ABA # 000000000
Account # 304951404
Account Name: Polymedix / Xxxxxxx
ref: [subscriber name] Phone: (___) ___-____
Such funds shall be held in escrow until the Closing and delivered by the Escrow Agent on behalf of
the Investors to the Company upon the satisfaction, in the reasonable judgment of the Placement
Agents, of the conditions set forth in Section 3.2(b) hereof. The Placement Agents shall have no
rights in or to any of the escrowed funds unless the Placement Agents and the Escrow Agent are
notified in writing by the Company in connection with the Closing that a portion of the escrowed
funds shall be applied to the Placement Fee as contemplated by Section 2(e) of the Placement
Agreement. The Company and the Investor agree to indemnify and hold the Escrow Agent and the
Placement Agents harmless from and against any and all losses, costs, damages, expenses and claims
(including, without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under
this Section 3.3 or otherwise with respect to the funds
Annex I- Page 2
held in escrow pursuant hereto or arising under the Escrow Agreement, unless (i) such Losses
resulted from any material violation by the Escrow Agent or any Placement Agent of any applicable
broker-dealer rules or federal or state securities laws or (ii)it is finally determined that such
Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent or the
Placement Agents. Anything in this Agreement to the contrary notwithstanding, in no event shall
the Escrow Agent or the Placement Agents be liable for any Losses that exceed the total
compensation received by the Escrow Agent or the Placement Agents, as applicable, pursuant to and
in accordance with any agreement between the Escrow Agent and the Company or the Placement
Agreement, as applicable.
3.4 Delivery of Shares by Electronic Book-Entry at The Depository Trust Company. No later
than two (2) business days after the execution of this Agreement by the Investor and the
Company, the Investor shall direct the broker-dealer at which the account or accounts to be
credited with the Shares being purchased by such Investor are maintained, which broker/dealer shall
be a DTC participant, to set up a Deposit/Withdrawal at Custodian (“DWAC”) instructing The American
Stock Transfer & Trust Company, the Company’s transfer agent, to credit such account or accounts
with the Shares by means of an electronic book-entry delivery. Such DWAC shall indicate the
settlement date for the deposit of the Shares, which date shall be provided to the Investor by the
Placement Agents. Simultaneously with the delivery to the Company by the Escrow Agent of the funds
held in escrow pursuant to Section 3.3 above, the Company shall direct its transfer agent to credit
the Investor’s account or accounts with the Shares pursuant to the information contained in the
DWAC.
4. Representations, Warranties and Covenants of the Investor.
4.1 The Investor represents and warrants to, and covenants with, the Company that (a) the
Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in
preparation of the Prospectus Supplement and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the Closing Date and (b) the Investor, in connection
with its decision to purchase the number of Units set forth on the Signature Page, is relying only
upon the Disclosure Package and the representations and warranties of the Company contained herein
and the Placement Agency Agreement.
4.2 The Investor acknowledges, represents and agrees that no action has been or will be taken
in any jurisdiction outside the United States by the Company or the Placement Agents that would
permit an offering of the Units, or possession or distribution of offering materials in connection
with the issue of the Units in any jurisdiction outside the United States where action for that
purpose is required. Each Investor outside the United States will comply with all applicable laws
and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Units
or has in its possession or distributes any offering material, in all cases at its own expense.
The Placement Agents are not authorized to make and have not made any representation or use of any
information in connection with the issue, placement, purchase and sale of the Units, except as set
forth or incorporated by reference in the Disclosure Package.
4.3 The Investor further represents and warrants to, and covenants with, the Company that (a)
the Investor has full right, power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
Annex I- Page 3
action to authorize the execution, delivery and performance of this Agreement, and (b) this
Agreement constitutes a valid and binding obligation of the Investor enforceable against the
Investor in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreements of the Investors herein may be
legally unenforceable.
4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other
materials presented to the Investor in connection with the purchase and sale of the Units
constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Units.
4.5 Each Investor represents, warrants and agrees that, since the earlier to occur of (i) the
date on which any Placement Agent first contacted such Investor about the Offering and (ii) the
date of this Agreement, it has not engaged in any transactions in the securities of the Company
(including, without limitation, any Short Sales involving the Company’s securities). Each Investor
covenants that it will not engage in any transactions in the securities of the Company (including
Short Sales) prior to the time that the transactions contemplated by this Agreement have been
consummated and are publicly disclosed. Each Investor agrees that it will not use any of the Units
acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so
would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include,
without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under
the Exchange Act, whether or not against the box, and all types of direct and indirect stock
pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent
positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including
on a total return basis), and sales and other transactions through non-US broker dealers or foreign
regulated brokers.
5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement or by the Placement Agents,
all covenants, agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Agreement, the delivery to the Investor of the Units
being purchased and the payment therefor. The Placement Agents shall be third party beneficiaries
with respect to representations, warranties and agreements of the Investor in Section 4 hereof.
6. Notices. All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and will be deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by International Federal Express, two
Annex I- Page 4
business days after so mailed and (iv) if delivered by facsimile, upon electric confirmation
of receipt and will be delivered and addressed as follows:
| (a) | if to the Company, to: | ||
| Polymedix, Inc. 000 X. Xxxxxx-Xxxxxxx Xxxx Xxxxx 000 Xxxxxx, Xxxxxxxxxxxx 00000 Facsimile: (000) 000-0000 Attention: Xxxxxx X. Xxxxx, Chief Financial Officer |
|||
| with copies to: |
|||
| Xxxxxx Xxxxxxxx, LLP 000 Xxxxxx Xxxx 000 Xxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000 Attention: Xxxxxxx X. Xxxxxx Facsimile: (000) 000-0000 |
(b) if to the Investor, at its address on the Signature Page hereto, or at such other address
or addresses as may have been furnished to the Company in writing.
7. Changes. This Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
8. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.
9. Severability. In case any provision contained in this Agreement should be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein will not in any way be affected or impaired thereby.
10. Governing Law. This Agreement will be governed by, and construed in accordance with, the
internal laws of the State of New York, without giving effect to the principles of conflicts of law
that would require the application of the laws of any other jurisdiction.
11. Counterparts. This Agreement may be executed in two or more counterparts, each of which
will constitute an original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties. The Company and the Investor acknowledge and agree that
the Company shall deliver its counterpart to the Investor along with the Prospectus and the
Prospectus Supplement (or the filing by the Company of an electronic version thereof with the
Commission).
Annex I- Page 5
12. Confirmation of Sale. The Investor acknowledges and agrees that such Investor’s receipt
of the Company’s counterpart to this Agreement, together with the Prospectus and the Prospectus
Supplement (or the filing by the Company of an electronic version thereof with the Commission),
shall constitute written confirmation of the Company’s sale of Units to such Investor.
13. Termination. In the event that the Company decides to terminate Offering prior to
Closing, this Agreement shall terminate without any further action on the part of the parties
hereto and any monies remitted to the Escrow Agent will be promptly refunded by the Escrow Agent,
without interest, to the Investor.
Annex I- Page 6
SCHEDULE A TO ANNEX I
POLYMEDIX, INC.
INVESTOR QUESTIONNAIRE
POLYMEDIX, INC.
INVESTOR QUESTIONNAIRE
Pursuant to Section 3 of Annex I to the Agreement, please provide us with the following
information:
| 1. | The exact name that your Shares and Warrants are to be registered in. You may use a nominee name if appropriate: | |||||||
| 2. | The relationship between the Investor and the registered holder listed in response to item 1 above: | |||||||
| 3. | The mailing address of the registered holder listed in response to item 1 above: | |||||||
| 4. | The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above: | |||||||
| 5. | Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained); please include the name and telephone number of the contract person at the broker-dealer: | |||||||
Schedule A to Annex I- Page 1
| 6. | DTC Participant Number: | |||||||
| 7. | Name of Account at DTC Participant being credited with the Shares: | |||||||
| 8. | Account Number at DTC Participant being credited with the Shares: | |||||||
Schedule A to Annex I- Page 2
