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Title: |
Escrow Agreement |
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Entities: |
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Date: |
2007 |
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Size: |
Preview shows 8KB of 34KB total |
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Price: |
$41 |
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ID: |
#3138421 |
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ESCROW AGREEMENT
THIS ESCROW AGREEMENT (?Agreement?) is made and entered into as of the 18th day of September 2007, by and among JPMorgan Chase Bank, N.A. (the ?Escrow Agent?), Delcath Systems, Inc., a Delaware corporation (the ?Company?), Canaccord Adams Inc. (?Canaccord?) and ThinkEquity Partners LLC (?ThinkEquity? and together with Canaccord, the ?Placement Agents?). Canaccord is acting as the lead placement agent (the ?Lead Placement Agent?).
Background
WHEREAS, the Company proposes to sell an aggregate of up to 3,833,108 shares of its common stock, par value $0.01 per share (?Common Stock?), and warrants to purchase up to 1,916,554 shares of the Company?s Common Stock (collectively, the ?Securities?), for an aggregate purchase price of up to $14,182,499.60, all as described in the subscription agreements (collectively, the ?Subscription Agreements?) dated the date hereof between the Company and each purchaser named therein (each a ?Purchaser,? and collectively, the ?Purchasers?);
WHEREAS, the Securities are being offered by the Company to purchasers identified by the Placement Agents, pursuant to the terms of the Subscription Agreements and the Placement Agency Agreement (the ?Placement Agency Agreement?) dated September 18, 2007 between the Company and the Placement Agents;
WHEREAS, unless the transactions contemplated by the Subscription Agreements and the Placement Agency Agreement have been abandoned pursuant to the terms thereof, or unless otherwise agreed to by the Company and the Placement Agents, the closing of the purchase and sale of the Securities shall take place on September 21, 2007 (the ?Closing Date?);
WHEREAS, with respect to certain subscription payments received from the Purchasers, the Company and the Placement Agents propose to establish an escrow account with the Escrow Agent in the name of the Company at 4 New York Plaza, 21st Floor, New York, New York 10004; and
WHEREAS, the Escrow Agent is willing to receive and disburse the proceeds from the offering of the Securities in accordance herewith. The Escrow Agent?s duties are limited to this Agreement and shall only act in accordance with the terms and conditions contained herein.
Terms
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Deposit of Escrowed Funds. Each Purchaser for the Securities identified on Exhibit A attached hereto shall wire or deposit with the Escrow Agent immediately available funds of such Purchaser delivered in payment for the Securities such Purchaser agrees to purchase (the ?Escrowed Funds?). Upon receipt of funds from each Purchaser, the Escrow Agent shall credit such funds to a non-interest bearing account held by the Escrow Agent. The
wire instructions to which each Purchaser shall wire or deposit such funds are set forth in the notice provision for the Escrow Agent in Section 9 to this Agreement.
2. Acceptance. Upon receipt of the Escrowed Funds, the Escrow Agent shall acknowledge such receipt in writing (which may be via electronic mail) to the Company and the Placement Agents and shall hold and disburse the same pursuant to the terms and conditions of this Agreement. The Escrow Agent shall have no duty to verify whether the amounts and property delivered comport with the requirements of any other agreement.
3. List of Purchasers. Exhibit A hereto contains the name of, the address of, the number of Securities subscribed for by, and the subscription amount to be delivered to the Escrow Agent on behalf of, each Purchaser whose funds are being deposited. The Escrow Agent shall notify the Placement Agents and the Company of any discrepancy between the subscription amounts set forth on any list delivered pursuant to this Section 3 and the subscription amounts received by the Escrow Agent. The Escrow Agent is authorized to augment such list to reflect the actual subscription amounts received and the release of any subscription amounts pursuant to Section 4.
4. Withdrawal of Subscription Amounts.
(a) If the Escrow Agent shall receive a notice, substantially in the form of Exhibit B hereto (an ?Offering Termination Notice?) from the Company, the Escrow Agent shall promptly after receipt of such Offering Termination Notice, send to each Purchaser listed on the list held by the Escrow Agent pursuant to Section 3 whose total subscription amount shall not have been released pursuant to paragraph (b) or (c) of this Section 4, in the manner set forth in paragraph (d) of this Section 4, a check to the order of such Purchaser in the amount of the remaining subscription amount held by the Escrow Agent on behalf of such Purchaser as set forth on such list held by the Escrow Agent. The Escrow Agent shall notify the Company and the Placement Agents of the distribution of such funds to the Purchasers.
(b) In the event that (i) the Securities have been subscribed for and funds in respect thereof shall have been deposited with the Escrow Agent in accordance with this Agreement and (ii) no Offering Termination Notice shall have been delivered to the Escrow Agent, the Company and the Placement Agents shall deliver to the Escrow Agent a joint notice, not more than three (3) Business Days prior to the Closing Date, substantially in the form of Exhibit C hereto (a ?Closing Notice?), designating the proceeds which are to be distributed on such Closing Date, and identifying the Purchasers and the number of Securities to be sold to each thereof on such Closing Date. The Escrow Agent, after receipt of such Closing Notice, on such Closing Date, shall pay, in federal or other immediately available funds and otherwise in the manner specified in such Closing Notice, an amount equal to the aggregate of the subscription amounts paid by the Purchasers identified in such Closing Notice for the Securities to be sold on such Closing Date as set forth on the list held by the Escrow Agent pursuant to Section 3.
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