November ___, 2009 PolyMedix, Inc. 170 N. Radnor-Chester Road Suite 300 Radnor, PA 19087 Ladies and Gentlemen: The undersigned (the “Investor”) hereby confirms and agrees with you as follows:
Exhibit 4.11
November ___, 2009
PolyMedix, Inc.
000 X. Xxxxxx-Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
000 X. Xxxxxx-Xxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned (the “Investor”) hereby confirms and agrees with you as follows:
1. This Purchase Agreement (the “Agreement”) is made as of the date hereof between PolyMedix,
Inc., a Delaware corporation (the “Company”), and the Investor that is a signatory to this
Agreement.
2. The Company has authorized the sale and issuance to certain investors of up to an aggregate
of million units (the “Units”), each consisting of (i) shares (the “Shares”) of its
common stock, par value $0.001 per share (the “Common Stock”), and (ii) Series C Warrants
(the “Warrant(s)”) to purchase of a share of Common Stock, for a purchase price of $ per
Unit. 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 an
effective Registration Statement on Form S-1 (Registration No. 333-160833) (filed by the Company
with the Securities and Exchange Commission (the “Commission”)) (the “Registration Statement”), a preliminary prospectus dated
, 2009 (the “Preliminary
Prospectus”), and the pricing information provided to the
Investor prior to the Investor's execution and delivery of this
Agreement. The Investor hereby acknowledges receipt of the Disclosure
Package.
4. The Company and the Investor agree that the Offering is being made subject to the execution
by the Company and the Placement Agents of the Placement Agency Agreement. 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 number Securities set forth below the Investor’s name on Schedule I hereto, at a
purchase price of $ per Unit, pursuant to the Terms and Conditions for Purchase of Securities
attached hereto as Annex I and incorporated herein by reference as if fully set forth
herein. The Investor acknowledges that the Offering is not being underwritten by the Placement
Agents and that there is no minimum offering amount. Shares of Common Stock will be credited to
the Investor using customary book-entry procedures. The executed Warrant will be delivered to the
Investor pursuant to the terms thereof.
5. 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) except as set forth on Schedule II hereto, neither it, nor any
group of which it is a member or to which it is related, beneficially owns (including the right to
acquire or vote) any
securities of the Company and (c) it is not a, and it has no direct or indirect affiliation or
association with any, FINRA member as of the date hereof.
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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.
| Name of Investor: | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
AGREED AND ACCEPTED:
POLYMEDIX, INC.
By:
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Name: |
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Title: |
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SCHEDULE I
SCHEDULE OF INVESTORS
| Name of Investor: | ||||||
| Name of Individual Representing Investor: |
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| Title of Individual Representing Investor: |
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| Address: | ||||||
| Telephone: | ||||||
| Telecopier: | ||||||
| Number of | Price Per | Aggregate | ||
| Units | Unit | Purchase | ||
| to Be Purchased | In Dollars | Price | ||
| $___ | $ |
SCHEDULE II
SCHEDULE OF BENEFICIAL OWNERSHIP
Please provide the number of securities of PolyMedix, Inc. that you or your organization will
beneficially own immediately after Closing, including those Securities purchased by you or your
organization pursuant to this Agreement and those securities purchased or acquired by you or your
organization through other transactions and provide the number of securities that you have or your
organization has the right to acquire within 60 days of Closing:
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SECURITIES
1. Agreement to Sell and Purchase the Securities; Placement Agents.
1.1 Upon the terms and subject to the conditions hereinafter set forth, at the Closing (as
defined in Section 2 below), the Company will sell to the Investor, and the Investor will purchase
from the Company, the number of Units set forth on Schedule I of this Agreement below such
Investor’s name at the purchase price set forth therein.
1.2 The Company may enter into agreements similar to this Agreement with certain other
investors (the “Other Investors”) and expects to complete sales of Securities to them. The
Investor and the Other Investors hereinafter collectively are referred to as the “Investors,” and
this Agreement and the agreements executed by the Other Investors are hereinafter collectively
referred to as the “Agreements”. The Company may accept or reject any one or more Agreements in its
sole discretion.
1.3 The Company has entered into a Placement Agency Agreement (the “Placement Agency
Agreement”) dated the date hereof with Xxxxxxxx Curhan Ford & Co., Boenning & Scattergood, Inc. and
Noble Financial Capital Markets in their capacities as Placement Agents for the Offering (together, the
“Placement Agents”), and the Company has agreed to pay the Placement Agents a fee in respect of the
sale of the Common Stock and Warrants.
2. Delivery of the Shares at Closing. The completion of the purchase and sale of the
Securities (the “Closing”) shall take place at a place and time (the “Closing Date”) to be
specified by the Company and the Placement Agents, in accordance with Rule 15c6-1 promulgated under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
The Company’s obligation to issue and sell the Securities at Closing to the Investor shall be
subject to the (a) 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 and (b) the
payment by the Investor of the purchase price for the Units being purchased hereunder.
The Investor’s obligation to purchase the Securities shall be subject to the condition that
the Placement Agents shall not have (a) terminated the Placement Agency Agreement pursuant to the
terms thereof or (b) determined that the conditions to closing in the Placement Agency Agreement
have not been satisfied.
At the Closing, 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:
[Insert Wire Instructions]
Upon receipt of payment by, or on behalf of, the Investor, the Company shall (a) deliver the Shares purchased by the Investor to the Investor through DTC directly to the account(s) of the applicable DTC Holder as set forth on Annex II and (b) deliver the Warrants to the Investors at the address set forth on Annex II.
At the Closing, payment shall be made by, or on behalf of, the Investor by release of the
funds paid by each Investor and the Company shall (a) deliver the Shares purchased by the Investor
to the Investor through DTC directly to the account(s) of the applicable DTC Holder as set forth on
Annex II and (b) deliver the Warrants to the Investors at the address set forth on Annex II.
3. Representations, Warranties and Covenants of the Company. The Company hereby
represents and warrants to, and covenants with, the Investor, as follows:
3.1 The issuance and sale of each of the Shares and the Warrants have been duly authorized by
the Company, and the Shares, when issued and paid for in accordance with this Agreement, will be
duly and validly issued, fully paid and nonassessable and will not be subject to preemptive or
similar rights. The Warrant Shares have been duly authorized and reserved for issuance pursuant to
the terms of the Warrants, and the Warrant Shares, when issued by the Company upon valid exercise
of the Warrants and payment of the exercise price, will be duly and validly issued, fully paid and
nonassessable and will not be subject to preemptive or similar rights.
3.2 This Agreement constitutes a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject to the effect of applicable bankruptcy,
insolvency or similar laws affecting creditors’ rights generally and equitable principles of
general applicability.
4. Representations, Warranties and Covenants of the Investor. The Investor represents
and warrants to the Company as follows:
4.1 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 action to
authorize the execution, delivery and performance of this Agreement, and this Agreement constitutes
a valid and binding obligation of the Investor enforceable against the Investor in accordance with
its terms, subject to the effect of applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and equitable principles of general applicability.
4.2 The Investor is knowledgeable, sophisticated and experienced in making, and is qualified
to make, decisions with respect to investments in shares representing an investment decision like
that involved in the purchase of the Securities and has, in connection with its decision to
purchase the number of Securities set forth on Schedule I to the Agreement, relied solely upon the
Disclosure Package and has not relied upon any information provided by the Placement Agents.
4.3 The Investor understands that nothing in this Agreement or the Disclosure Package 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.
4.4 Since the earlier to occur of (i) the date on which a Placement Agent first contacted the
Investor about the Offering and (ii) the date of this Agreement, the Investor has not engaged in
any transactions in the securities of the Company (including, without limitation, any Short Sales
involving the
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Company’s securities). The 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 publicly disclosed. The 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. Notwithstanding any
investigation made by any party to this Agreement, all covenants, agreements, representations and
warranties made by the Company and the Investor herein shall survive the execution of this
Agreement, the delivery to such Investor of the Securities being purchased and the payment
therefor.
6. Notices. All notices, requests, consents and other communications hereunder shall
be in writing, shall 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 shall be deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by a nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by International Federal
Express, two business days after so mailed, (iv) if delivered by facsimile, upon electronic
confirmation of receipt and shall be delivered as addressed as follows: (a) if to the Company,
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, 400 Berwyn Park, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxxx
X. Xxxxxx, Facsimile: (000) 000-0000; and (b) if to an Investor, at its address on Schedule I
hereto, or at such other address or addresses as may have been furnished to the Company in writing
by such Investor.
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 or reference only and shall 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 shall not in any way be affected or impaired thereby.
10. Governing Law. This Agreement shall 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.
11. Counterparts; Facsimile. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when taken together,
shall constitute one instrument, and shall become effective when one or more counterparts have been
signed by each party hereto and delivered to the other parties. Facsimile signatures shall be as
effective as original signatures.
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 Disclosure Package
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shall constitute written
confirmation of the Company’s sale of Units to such Investor.
13. Termination. In the event that the Offering is terminated prior to Closing, this
Agreement shall terminate without any further action on the part of the parties hereto and any
monies remitted by the Investor will be promptly refunded, without interest, to the
Investor.
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Annex II
POLYMEDIX, INC.
INVESTOR QUESTIONNAIRE
Pursuant to Annex I to the Agreement, please provide us with the following
information:
1.
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The exact name that your Shares and Warrants are to be registered in. You may use a nominee name if appropriate: | |||
2.
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The relationship between the Investor and the registered holder listed in response to item 1 above: | |||
3.
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The mailing address of the registered holder listed in response to item 1 above: | |||
4.
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The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above: | |||
5.
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Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained): | |||
6.
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DTC Participant Number: | |||
7.
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Name of Account at DTC Participant being credited with the Shares: | |||
8.
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Account Number at DTC Participant being credited with the Shares: | |||
