ESCROW AGREEMENT
Exhibit 8.1
This Escrow Agreement (“Escrow Agreement”), dated as of [_____], 2015, is entered into by and among Aperion Biologics, Inc., a Delaware corporation (the “Company”), X.X. Xxxxxxxxx + Co., LLC, (the “Underwriter”) and American Stock Transfer & Trust Company, LLC, a New York limited liability trust company (the “Escrow Agent”).
WHEREAS, the Company and the Underwriter have entered into the Underwriting Agreement dated [____], 2015, pursuant to which the Company proposes to issue and sell up to 2,500,000 shares of common stock, no par value, of the Company (the “Shares”), to certain investors (the “Investors”);
WHEREAS, the Company has filed with the Securities and Exchange Commission an offering statement on Form 1-A (Offering File No. 024-10482) (which, together with all amendments or supplements thereto, is referred to herein as the “Offering Statement”);
WHEREAS, the Underwriter proposes to offer the Shares to the Investors on behalf of the Company and to receive orders from such Investors for the total number of Shares being offered;
WHEREAS, with respect to the aggregate amount of the Investors’ proposed investments in the Company (the “Aggregate Investment”), the parties propose that the Escrow Agent through its office of escrow administration, American Stock Transfer & Trust Company, LLC, 0000 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 will establish an escrow account at a national bank; and
WHEREAS, the parties hereto desire to establish the terms and conditions pursuant to which the escrow account will be established and maintained.
NOW THEREFORE, it is agreed as follows:
1. Appointment of Agent and Establishment of Escrow. The Company hereby appoints the Escrow Agent as escrow agent and the Escrow Agent hereby accepts such appointment, each in accordance with the terms and conditions set forth herein. The Escrow Agent hereby agrees to establish a non-interest bearing trust account pursuant to Rule 15c2-4 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the “Escrow Account”) at a national bank, for the Aggregate Investment.
2. Delivery of Funds. The Escrow Agent will establish the Escrow Account on the date hereof on behalf of the Company and the Underwriter and agrees it will provide the Underwriter with the wire details for the Escrow Account. An amount representing the Aggregate Investment will be wired directly to the Escrow Account (the “Escrowed Property”). The Escrow Agent shall not accept or handle any customer funds.
3. List of Investors. The Underwriter shall furnish or cause to be furnished to the Escrow Agent and the Company, at the time of each receipt of funds pursuant to Section 2 hereof, a list, substantially in the form of Exhibit A hereto, containing the name, the address, the number of Shares to be purchased, the investment amount, and the social security or certified taxpayer identification number, if applicable, of each investor whose funds have been received (the “Investor List”).
4. Agent to Hold and Disburse Funds. The Escrow Account will be in a segregated account established for the benefit of the investors and the Escrowed Property will be disbursed pursuant to the terms of this Escrow Agreement, as follows:
(a) (i) If the Escrow Agent shall receive a (i) written notice, substantially in the form of Exhibit B hereto (an “Offering Termination Notice”), from the Company and the Underwriter; or (ii) a final and non-appealable order of a court of competent jurisdiction, a copy of which is delivered to the Escrow Agent by either the Company or the Underwriter, that instructs the Escrow Agent as to the disbursement of the Escrowed Property, the Escrow Agent shall promptly after receipt of such Offering Termination Notice or court order, and in no event more than five business days thereafter arrange for payment to each investor listed on the Investor List held in the Escrow Account pursuant to Section 3 hereof whose total investment amount shall not have been released pursuant to paragraph (b) or (c) of this Section 4, by wire transfer of immediately available funds the amount attributable to such investor of the remaining Aggregate Investment held in the Escrow Account as set forth on such Investor List held by the Escrow Agent. The Escrow Agent shall notify the Company and the Underwriter of the distribution of such funds to the investors. For the avoidance of doubt, in the event the funds in the amount equal to the proceeds of the sale of all of the Shares offered pursuant to the Underwriting Agreement are not received (the “Requisite Funds”) prior to the close of business on the date scheduled for receipt of the Requisite Funds, the Company and the Underwriter agree to deliver to the Offering Termination Notice to the Escrow Agent as described above, and the Escrow Agent shall make the payments to each investor, as described above. The funds returned to each investor shall be free and clear of any and all claims of the Company or any of its creditors.
(b) In the event that (i) the Investors have agreed to purchase any of the Shares and the Requisite Funds shall have been received into the Escrow Account on or before the Closing Date and (ii) no Offering Termination Notice or final and non-appealable court order as set forth in paragraph (a) above shall have been delivered to the Escrow Agent, the Company and the Underwriter, shall deliver to the Escrow Agent a joint written notice, substantially in the form of Exhibit C hereto (a “Closing Notice”), designating the date on which Shares are to be sold and delivered to the investors as the “Closing Date,” and identifying the investors and the number of Shares to be sold to each investor on such Closing Date. Such Closing Notice, unless one of the parties objects, shall be delivered on the Closing Date. The Escrow Agent, after receipt of such Closing Notice shall, on such Closing Date, pay to the Company, the Underwriter and the Escrow Agent, wire transfer of immediately available funds and otherwise in the manner and amount specified by the Company and the Underwriter in such Closing Notice, an amount equal to the Aggregate Investment for the Shares to be sold on such Closing Date as set forth on the list held by the Escrow Agent pursuant to Section 3 hereof. The Escrow Agent shall pay the amounts described in this paragraph only after receipt of the Requisite Funds.
(c) If at any time and from time to time prior to the release of any investor’s total investment amount pursuant to paragraph (a) or (b) of this Section 4 from the Escrow Account, the Company shall deliver to the Escrow Agent a written notice, substantially in the form of Exhibit D hereto (an “Investment Termination Notice”), to the effect that any or all of the investment of such investor have been rejected by the Company (a “Rejected Investment”), the Escrow Agent shall promptly after receipt of such Investment Termination Notice arrange for payment to such investor by wire transfer of immediately available funds the amount of such Rejected Investment.
| -2- |
5. Exculpation and Indemnification of Escrow Agent.
(a) The Escrow Agent shall have no duties or responsibilities other than those expressly set forth herein. The Escrow Agent shall have no duty to enforce any obligation of any person to make any payment or delivery, or to direct or cause any payment or delivery to be made, or to enforce any obligation of any person to perform any other act. The Escrow Agent shall be under no liability to the other parties hereto or to anyone else by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person’s obligations under any such document. Except for amendments to this Agreement referred to below, and except for instructions given to the Escrow Agent by the Company and the Underwriter relating to the funds received by the Escrow Agent under this Agreement, the Escrow Agent shall not be obligated to recognize any agreement between any and all of the persons referred to herein, notwithstanding that references thereto may be made herein and whether or not it has knowledge thereof.
(b) The Escrow Agent shall not be liable to the Company or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own reasonable judgment. The Escrow Agent may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained), which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms thereof, unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall give its prior written consent thereto.
(c) The Escrow Agent shall not be responsible for the sufficiency or accuracy of the form of, or the execution, validity, value or genuineness of, any document or property received, held or delivered by it hereunder, or of any signature or endorsement thereon, or for any lack of endorsement thereon, or for any description therein; nor shall the Escrow Agent be responsible or liable to the other parties hereto or to anyone else in any respect on account of the identity, authority or rights of the persons executing or delivering or purporting to execute or deliver any document or property or this Agreement. The Escrow Agent shall have no responsibility with respect to the use or application of any funds or other property paid or delivered by the Escrow Agent pursuant to the provisions hereof. The Escrow Agent shall not be liable to the Company or to anyone else for any loss which may be incurred by reason of any investment of any monies which it holds hereunder provided the Escrow Agent has complied with the provisions of Section 4(a) hereunder.
| -3- |
(d) The Escrow Agent shall have the right to assume in the absence of written notice to the contrary from the proper person or persons that a fact or an event by reason of which an action would or might be taken by the Escrow Agent does not exist or has not occurred, without incurring liability to the other parties hereto or to anyone else for any action taken or omitted, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own reasonable judgment, in reliance upon such assumption.
(e) The Escrow Agent does not have, for tax reporting purposes, any interest in the Escrowed Property received hereunder but is serving as escrow holder only. The parties hereto agree that, for tax reporting purposes, all interest or other income earned from the investment of the Escrowed Property or any portion thereof in any tax year (i) to the extent such interest or other income is distributed by the Escrow Agent to any person or entity pursuant to the terms of this Escrow Agreement during such tax year, shall be reported as allocated to such person or entity, and (ii) otherwise shall be reported as allocated to the Investors, in proportion to their respective investment amounts as set forth on Exhibit A hereto.
(f) The Escrow Agent will be indemnified and held harmless by the Company from and against any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving any claim, or in connection with any claim or demand, which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, the monies or other property held by it hereunder or any income earned from investment of such monies, except for the Escrow Agent’s gross negligence or misconduct. Promptly after the receipt by the Escrow Agent or notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall, if a claim in respect thereof is to be made against the Company, notify the Company thereof in writing, but the failure by the Escrow Agent to give such notice shall not relieve the Company from any liability which the Company may have to the Escrow Agent hereunder.
(g) For the purposes hereof, the term “expense or loss” shall include all amounts paid or payable to satisfy any claim, demand or liability, or in settlement of any claim, demand, action, suit or proceeding settled with the express written consent of the Escrow Agent, and all costs and expenses, including, but not limited to, reasonable counsel fees and disbursements, paid or incurred in investigating or defending against any such claim, demand, action, suit or proceeding.
6. Termination of Agreement and Resignation of Escrow Agent.
(a) This Escrow Agreement shall terminate on the final disposition of the monies and property held in escrow hereunder, provided that the rights of the Escrow Agent and the obligations of the other parties hereto under Sections 5 and 8 shall survive the termination hereof.
| -4- |
(b) The Escrow Agent may resign at any time and be discharged from its duties as Escrow Agent hereunder by giving the Company and the Underwriter at least 30 days notice thereof. As soon as practicable after its resignation, the Escrow Agent shall turn over to a successor escrow agent appointed by the Company all monies and property held hereunder upon presentation of the document appointing the new escrow agent and its acceptance thereof. If no new escrow agent is so appointed within the 60-day period following such notice of resignation, the Escrow Agent may deposit the aforesaid monies and property with any court it deems appropriate.
7. Form of Payments.
(a) Any payments to investors or to persons other than the Company pursuant to the terms of this Agreement shall be by wire transfer of immediately available funds. The fee described in Section 8 below shall include a total of three wire transfers, one wire transfer incoming to the Escrow Agent and two wire transfers outgoing from the Escrow Agent.
(b) All amounts referred to herein are expressed in United States Dollars and all payments by the Escrow Agent shall be made in such dollars.
8. Compensation of Escrow Agent. For services rendered, the Escrow Agent shall receive as compensation $4,000.00, which fee shall be paid by the Company promptly following the signing of this Agreement. The Escrow Agent shall also be entitled to retain any income earned on the funds in the escrow account as part of the Escrow Agent’s compensation.
9. Notices. All notices, requests, demands and other communications provided for herein shall be in writing, shall be delivered by hand or by first-class mail, shall be deemed given when received and shall be addressed to the parties hereto at their respective addresses listed below or to such other persons or addresses as the relevant party shall designate as to itself from time to time in writing delivered in like manner.
| If to the Company, to: | |
|
00000 Xxxxxxxxx Xx. Xxx Xxxxxxx, XX 00000 | |
| with a copy to: | |
|
Xxxxxx, Xxxxx & Xxxxxxx LLP 2 Palo Alto Square 0000 Xx Xxxxxx Xxxx, Xxxxx 000 Xxxx Xxxx, XX 00000-0000 Attention: Xxxxxx Lung Facsimile: 000-000-0000 |
| -5- |
| if to the Underwriter, to: | |
|
X.X. Xxxxxxxxx + Co., LLC 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxx Xxxxxx | |
| with a copy to: | |
|
Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP 0000 Xxxx Xxxxx Xxxxx, Xxxxx 000 Xxxxxxx, XX 00000 Attention: Xxxx X. Xxxxxx Facsimile: 000-000-0000 | |
| if to the Escrow Agent, to: | |
| American Stock Transfer & Trust Company, LLC | |
| 0000 00xx Xxxxxx | |
| Xxxxxxxx, Xxx Xxxx 00000 | |
| Attention: Corporate Actions |
10. Further Assurances: From time to time on and after the date hereof, the Company shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do and cause to be done such further acts as the Escrow Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
11. Consent to Service of Process. Each of the Company and the Underwriter hereby irrevocably consents to the jurisdiction of the courts of the State of New York and of any federal court located in such State in connection with any action, suit or other proceeding arising out of or relating to this Agreement or any action taken or omitted hereunder, and waives personal service of any summons, complaint or other process and agrees that the service thereof may be made by certified or registered mail directed to each of the Company and the Underwriter at its address for purposes of notices hereunder.
12. Miscellaneous.
(a) This Agreement shall be construed without regard to any presumption or other rule requiring construction against the party causing such instrument to be drafted. The terms “hereby,” “hereof,” “hereto,” “hereunder” and any similar terms, as used in this Agreement, refer to the Agreement in its entirety and not only to the particular portion of this Agreement where the term is used. The word “person” shall mean any natural person, partnership, company, government and any other form of business or legal entity. All words or terms used in this Agreement, regardless of the number or gender, in which they are used, shall be deemed to include any other number and any other gender as the context may require. This Agreement shall not be admissible in evidence to construe the provisions of any prior agreement.
| -6- |
(b) Succession and Assignment. This Agreement and the rights and obligations hereunder of the Company may be assigned by the Company only to a successor to the Company’s entire business. This Agreement and the rights and obligations hereunder of the Escrow Agent may be assigned by the Escrow Agent only to a successor to its entire business. This Agreement shall be binding upon and inure to the benefit of each party’s respective successors, heirs and permitted assigns. No other person shall acquire or have any rights under or by virtue of this Agreement. This Agreement may not be changed orally or modified, amended or supplemented without an express written agreement executed by the Escrow Agent, the Company and the Underwriter. This Agreement is intended to be for the sole benefit of the parties hereto, and (subject to the provisions of this Section 11.2(b)) their respective successors, heirs and assigns, and none of the provisions of this Agreement are intended to be, nor shall they be construed to be, for the benefit of any third person.
(c) Amendments and Waivers. This Agreement may be amended only with the written consent of the Escrow Agent, the Company and the Underwriter. No waiver of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by the party giving such waiver. No waiver by any party with respect to any condition, default or breach of covenant hereunder shall be deemed to extend to any prior or subsequent condition, default or breach of covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
(d) Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without regard to principles of conflicts of law (other than Section 5-1401 of the New York General Obligations Law). The representations and warranties contained in this Agreement shall survive the execution and delivery hereof and any investigations made by any party. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect any of the terms hereof.
[Remainder of page intentionally left blank]
| -7- |
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be executed as of the day and year first above written.
| APERION BIOLOGICS, inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
| X.X. XXxxxxxxx + co., llc | ||
| By: | ||
| Name: | ||
| Title: | ||
| AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit A
Investor List
| Investor | Tax I.D. | Shares | Investment Amount |
|
[Investor Name] [Address] [Contact] |
|||
| A-1 |
EXHIBIT B
[Form of Offering Termination Notice]
| ________, 2015 |
American Stock Transfer & Trust Company, LLC
0000 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention:
Dear ______
Pursuant to Section 4(a) of the Escrow Agreement dated as of _______, 2015 (the “Escrow Agreement”) by and among Aperion Biologics, Inc. (the “Company”), X.X. Xxxxxxxxx + Co., LLC (“WRH”) and American Stock Transfer & Trust Company, LLC, the Company and WRH hereby notify you of the termination of the offering of the Shares (as that term is defined in the Escrow Agreement) and directs you to make payments to investors as provided for in Section 4(a) of the Escrow Agreement.
| Very truly yours, | ||
| APERION BIOLOGICS, inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
| X.X. XXxxxxxxx + co., llc | ||
| By: | ||
| Name: | ||
| Title: | ||
| B-1 |
EXHIBIT C
[Form of Closing Notice]
| [____], 2015 |
American Stock Transfer & Trust Company, LLC
0000 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Corporate Actions
Dear:
Pursuant to Section 4(b) of the Escrow Agreement dated as of [____], 2015, (the “Escrow Agreement”) by and among Aperion Biologics, Inc. (the “Company”), X.X. Xxxxxxxxx + Co., LLC, (the “Underwriter”) and American Stock Transfer & Trust Company, LLC, the Company hereby certifies that, subject to its receipt of the Aggregate Investment for the Shares (as that term is defined in the Escrow Agreement), the Company will sell and deliver Shares to the investors at a closing to be held on [___], 2015 (the “Closing Date”). The names of the investors concerned, the number of Shares to be purchased by each of such investors and the related investment amounts are set forth on Schedule I annexed hereto.
We hereby request that the aggregate investment amount be paid to the Underwriter, to the Escrow Agent and us as follows:
1. To the Company, $_________;
2. To the Underwriter, $_________; and
3. To the Escrow Agent $[ ]
| C-1 |
These instructions may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
| APERION BIOLOGICS, inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
| X.X. XXxxxxxxx + co., llc | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature page to Closing Notice]
SCHEDULE I to Exhibit C
|
Name of Investor
|
Number of Shares |
Investment Amount |
SCHEDULE II to Exhibit C
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
| If to the Underwriter: | |
| Name | Telephone Number |
| Xxxxxxx X. Xxxxx | (000) 000-0000 |
| If to the Company: | |
| Name | Telephone Number |
| [ ] | [ ] |
Telephone call-backs shall be made to the Underwriter and the Company if joint instructions are required pursuant to this Escrow Agreement.
EXHIBIT D
[Form of Investment Termination Notice]
| _______, 2015 |
American Stock Transfer & Trust Company, LLC
0000 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Corporate Actions
Dear:
Pursuant to the Escrow Agreement dated as of ______, 2015 (the “Escrow Agreement”) by and among Aperion Biologics, Inc. (the “Company”), X.X. Xxxxxxxxx + Co., LLC and American Stock Transfer & Trust Company, LLC, the Company hereby notifies you that the following investment(s) have been rejected:
|
Name of Investor |
Amount of Shares Rejected |
Dollar Amount of Rejected Investment
|
| APERION BIOLOGICS, inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
| D-1 |
