EXHIBIT 1.2
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of December __, 2001 (this "Agreement"), by
and among SOMANETICS CORPORATION, a Michigan corporation (the "Company"), XXXXX
XXXXXXX XXXXXXX & XXXXX LLP (the "Escrow Agent") and XXXXX XXXXXX & CO., INC.
(the "Placement Agent").
WHEREAS, the Company proposes to sell an aggregate of 1,000,000 common
shares, par value $0.01 per share (the "Securities"), all as described in the
Company's Registration Statement on Form S-1 (Reg. No 333-_____) (which,
together with all amendments or supplements thereto, is referred to herein as
the "Registration Statement");
WHEREAS, the Securities are being offered (the "Transaction") to
investors by the Placement Agent, pursuant to a Placement Agency Agreement,
dated as of December __, 2001 (the "Placement Agency Agreement"), by and between
the Company and the Placement Agent;
WHEREAS, the offering of the Securities will terminate if all of the
Securities are not sold, and all payments made by potential investors will be
refunded by the Escrow Agent;
WHEREAS, with respect to all subscription payments received from
potential investors, the Company proposes to establish an escrow account with
the Escrow Agent; and
WHEREAS, the Company and the Placement Agent desire that Xxxxx Xxxxxxx
Xxxxxxx & Xxxxx LLP act as escrow agent to hold the Escrowed Property (as
defined below) in escrow, under the terms of this Agreement.
NOW THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration the receipt and sufficiency are hereby
acknowledged, intending to be legally bound hereby, the parties hereto agree as
follows:
1. ESTABLISHMENT OF ESCROW. The Company and the Placement Agent hereby
appoint and designate the Escrow Agent, and the Escrow Agent hereby agrees to
receive and disburse the proceeds from the offering of the Securities and any
interest earned thereon in accordance herewith.
2. DEPOSIT OF ESCROW PROPERTY. Each of the potential investors for the
Securities shall, from time to time after the effective date of the Registration
Statement, cause to be wired to the Escrow Agent funds in payment for Securities
(the "Escrowed Property"). Upon receipt of funds from such potential investors,
the Escrow Agent shall credit such funds to an interest-bearing account (the
"Escrow Account") held by the Escrow Agent.
3. INVESTMENT OF ESCROWED PROPERTY. On the first business day after the
credit of any subscription proceeds to the Escrow Account pursuant to Section 2
and until release of such proceeds, the Escrow Agent shall invest such proceeds
in a [Money Market Deposit Account]. The Escrow Agent shall in no event be
liable for any loss resulting from any change in interest rates applicable to
proceeds invested pursuant to this Section 3. Interest on proceeds invested
pursuant to this Section 3 shall accrue from the date of investment of such
proceeds until the
termination of such investment pursuant to the terms hereof and shall be paid as
set forth in Section 5.
4. LIST OF SUBSCRIBERS. The Placement Agent shall furnish to the Escrow
Agent, at the time of each deposit of funds pursuant to Section 2, a list,
substantially in the form of Exhibit A hereto, containing the name of, the
address of, the number of Securities subscribed for by, the subscription amount
delivered to the Escrow Agent on behalf of and the tax identification number or
social security number, as the case may be, if applicable, of each potential
investor whose funds are being deposited. The Escrow Agent shall notify the
Placement Agent and the Company of any discrepancy between the subscription
amounts set forth on any list delivered pursuant to this Section 4 and the
subscription amounts received by the Escrow Agent. The Escrow Agent is
authorized to revise such list to reflect the actual subscription amounts
received and the release of any subscription amounts pursuant to Section 5.
5. 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 Placement Agent and the Company, the Escrow Agent
shall (i) promptly after receipt of such Offering Termination Notice, liquidate
any investments that shall have been made pursuant to Section 3 and send to each
potential investor listed on the list held by the Escrow Agent pursuant to
Section 4 whose total subscription amount shall not have been released pursuant
to paragraph (b) or (c) of this Section 5, in the manner set forth in paragraph
(d) of this Section 5, a check to the order of such potential investor in the
amount of the remaining subscription amount paid by such potential investor held
by the Escrow Agent as set forth on such list held by the Escrow Agent, and (ii)
as soon as practicable after the fourth business day of the month immediately
following the month in which the investments made pursuant to Section 3 were
terminated pursuant to this paragraph, send, in the manner set forth in
paragraph (d) of this Section 5, a check to the order of each potential investor
in the amount of income, if any, earned and not yet paid with respect to any
investment of such potential investor's funds. The Escrow Agent shall notify the
Company and the Placement Agent of the distribution of such funds to the
potential investors.
(b) The Escrow Agent shall notify the Company and the
Placement Agent promptly after the potential investors have deposited
$__________ [1,000,000 times the offering price] in the Escrow Account. In the
event that (i) the Securities have been subscribed for and funds in respect
thereof shall have been deposited with the Escrow Agent on or before the Closing
Date referred to below, (ii) no Offering Termination Notice shall have been
delivered to the Escrow Agent and (iii) the conditions set forth in Section 7 of
the Placement Agency Agreement have been satisfied or waived, the Company and
the Placement Agent shall deliver to the Escrow Agent a joint notice,
substantially in the form of Exhibit C hereto (a "Closing Notice"), designating
the date on which the Securities are to be sold and delivered to the potential
investors thereof (the "Closing Date"). Such notice shall be delivered not less
than one (1) nor more than three (3) business days prior to such Closing Date
and shall identify the potential investors and the number of Securities to be
sold to each thereof on such Closing Date. After receipt of such Closing Notice,
the Escrow Agent shall:
(A) on or prior to the Closing Date identified in
such Closing Notice, liquidate any investments that shall have
been made pursuant to Section 3 to the
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extent of the subscription amount to be distributed pursuant
to the immediately succeeding clause (ii);
(B) on such Closing Date, pay to the Placement Agent
and the Company, in federal or other immediately available
funds and otherwise in the manner specified by the Placement
Agent and the Company in such Closing Notice, an amount equal
to the aggregate of the subscription amounts paid by the
potential investors 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 4; and
(C) as soon as practicable after the fourth business
day of the month immediately following the month in which the
investments made pursuant to Section 3 were terminated
pursuant to such Closing Notice, send, in the manner set forth
in paragraph (d) of this Section 5, a check to the order of
each potential investor identified in such Closing Notice in
the amount of income, if any, earned and not yet paid with
respect to any investment of the potential investor's funds
distributed on such Closing Date. At the time of such
transfer, the Escrow Agent shall identify in writing to the
Company and the Placement Agent the amount of the interest
earned for the account of each potential investor.
(c) If at any time and from time to time prior to the release
of any potential investor's total subscription amount pursuant to paragraph (a)
or (b) of this Section 5 from escrow, the Placement Agent and the Company shall
deliver to the Escrow Agent a notice, substantially in the form of Exhibit D
hereto (a "Subscription Termination Notice"), to the effect that any or all of
the subscriptions have been rejected by the Company (a "Rejected Subscription"),
the Escrow Agent (i) promptly after receipt of such Subscription Termination
Notice, shall liquidate, to the extent of the sum of such potential investor's
Rejected Subscription amount as set forth in the Subscription Termination
Notice, any investments that shall have been made pursuant to Section 3 and send
to such potential investor, in the manner set forth in paragraph (d) of this
Section 5, a check to the order of such potential investor in the amount of such
Rejected Subscription amount, and (ii) as soon as practicable after the fourth
business day of the month immediately following the month in which the
investments made pursuant to Section 3 were terminated pursuant to this
paragraph, shall send to such potential investor, in the manner set forth in
paragraph (d) of this Section 5, a check to the order of such potential investor
in the amount of income, if any, earned and not yet paid with respect to any
investment of such potential investor's Rejected Subscription amount. At the
time of such transfer, the Escrow Agent shall identify in writing to the Company
and the Placement Agent the amount of the interest earned for the account of
each potential investor and the date such subscription was received.
(d) For the purposes of this Section 5, any check that the
Escrow Agent shall be required to send to any potential investor shall be sent
to such potential investor by first class mail, postage prepaid, at such
potential investor's address furnished to the Escrow Agent pursuant to Section
4.
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6. CONCERNING THE ESCROW AGENT. To induce the Escrow Agent to act
hereunder, it is further agreed by the Company and the Placement Agent as
follows:
(a) The Escrow Agent shall not be under any duty to give the
Escrowed Property held by it hereunder any greater degree of care than it gives
its own similar property and shall not be required to invest any funds held
hereunder except as directed in this Agreement, it being understood that
uninvested funds held hereunder shall not earn or accrue interest.
(b) This Agreement expressly sets forth all the duties of the
Escrow Agent with respect to any and all matters pertinent hereto, and no
implied duties or obligations shall be read into this Agreement against the
Escrow Agent. The Escrow Agent shall not be bound by the provisions of any
agreement among the other parties hereto except this Agreement.
(c) The Escrow Agent shall not be liable for any action taken
or omitted by it in good faith unless a court of competent jurisdiction
determines that the Escrow Agent's willful misconduct was the primary cause of
any loss to the other parties to this Agreement. The Escrow Agent may consult
with counsel of its own choice (including any member of its firm) and shall have
full and complete authorization and protection for any action taken or omitted
by it hereunder in good faith and in accordance with the opinion of such
counsel. This paragraph (c) shall survive notwithstanding any termination of
this Agreement or the resignation of the Escrow Agent.
(d) The Escrow Agent shall be entitled to rely upon any order,
judgment, certification, demand, notice, instrument or other writing delivered
to it hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. The Escrow Agent may act in reliance upon any instrument or
signature believed by it in good faith to be genuine and may assume, if in good
faith, that any person purporting to give notice or receipt or advice or make
any statement or execute any document in connection with the provisions hereof
has been duly authorized to do so.
(e) The Company shall indemnify the Escrow Agent for, and hold
it harmless against, any loss, liability or expense arising out of or in
connection with this Agreement and carrying out its duties hereunder, including
the costs and expenses of counsel either paid to retained attorneys (who may be
selected by the Escrow Agent) or amounts representing the fair value of legal
services rendered to itself, incurred as a result of or in connection with the
performance of this Agreement, except in those cases where the Escrow Agent has
been guilty of gross negligence or willful misconduct. Anything in this
Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Escrow Agent
has been advised of the likelihood of such loss or damage and regardless of the
form of action. This paragraph (e) shall survive notwithstanding any termination
of this Agreement or the resignation of the Escrow Agent.
(f) The Escrow Agent does not have any interest in the
Escrowed Property deposited hereunder but is serving as escrow holder only. Any
payments of income from the Escrow Account shall be subject to withholding
regulations then in force with respect to United States taxes. All interest or
other income earned under this Agreement shall be allocated and
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paid as provided herein and reported by the recipient to the Internal Revenue
Service as having been so allocated and paid.
(g) The Escrow Agent makes no representation as to the
validity, value, genuineness or collectibility of any security or other
documents or instruments held by or delivered to it.
(h) The Escrow Agent shall not be called upon to advise any
party as to the wisdom in selling or retaining, or taking or refraining from any
action with respect to, any securities or other property deposited hereunder.
(i) The Escrow Agent (and any successor escrow agent) at any
time may be discharged from its duties and obligations hereunder by the delivery
to it of notice of termination signed by the Placement Agent and the Company or
at any time may resign by giving written notice to such effect to the Placement
Agent. Upon any such termination or resignation, the Escrow Agent shall deliver
the Escrowed Property to any successor escrow agent jointly designated by the
other parties hereto in writing, or to any court of competent jurisdiction if no
such successor escrow agent is agreed upon, whereupon the Escrow Agent shall be
discharged of and from any and all further obligations arising in connection
with this Agreement. The termination or resignation of the Escrow Agent shall
take effect on the earlier of (i) the appointment of a successor (including a
court of competent jurisdiction) or (ii) the day that is 30 days after the date
of delivery: (A) to the Escrow Agent of the other parties' notice of termination
or (B) to the other parties hereto of the Escrow Agent's written notice of
resignation. If at that time the Escrow Agent has not received a designation of
a successor escrow agent, the Escrow Agent's sole responsibility after that time
shall be to keep the Escrowed Property safe until receipt of a designation of
successor escrow agent or a joint written disposition instruction by the other
parties hereto or any enforceable order of a court of competent jurisdiction.
(j) The Escrow Agent shall have no responsibility for the
contents of any writing of any third party contemplated herein as a means to
resolve disputes and may rely without any liability upon the contents thereof.
(k) The Escrow Agent shall not incur any liability for
following the instructions herein contained or expressly provided for, or
written instructions given by the parties hereto.
(l) In the event that the Escrow Agent shall be uncertain as
to its duties or rights hereunder or shall receive instructions, claims or
demands from any party hereto which, in its opinion, conflict with any of the
provisions of this Agreement, it shall be entitled to refrain from taking any
action and its sole obligation shall be to keep safely all property held in
escrow until it shall be directed otherwise in writing by all of the other
parties hereto or by a final order or judgment of a court of competent
jurisdiction, or it shall deliver all property held in escrow into the control
of a court of competent jurisdiction, in which event the Escrow Agent shall have
no further obligations or responsibilities with respect thereto. Additionally,
in the event of any disagreement among or between the parties hereto resulting
in adverse claims or demands being made in connection with the Escrowed
Property, the Escrow Agent shall be entitled to retain the Escrowed Property
until the Escrow Agent shall have received (i) a final and non-appealable order
of a court of competent jurisdiction directing delivery of the Escrowed Property
or (ii) a
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written agreement executed by the other parties hereto directing delivery of the
Escrowed Property, in which event the Escrow Agent shall disburse the Escrowed
Property in accordance with such order or agreement. Any court order referred to
in (i) above shall have been accompanied by a legal opinion of counsel for the
presenting party satisfactory to the Escrow Agent to the effect that said court
order is final and non-appealable. The Escrow Agent shall act on such court
order and legal opinions without further question.
(m) The Company agrees to pay or reimburse the Escrow Agent
upon request for all expenses, disbursements and advances, including reasonable
attorneys' fees, incurred or made by it in connection with the preparation,
execution, performance, delivery, modification and termination of this
Agreement.
(n) The other parties hereto irrevocably (i) submit to the
jurisdiction of any New York State or federal court sitting in New York City in
any action or proceeding arising out of or relating to this Agreement, (ii)
agree that all claims with respect to such action or proceeding shall be heard
and determined in such New York State or federal court and (iii) waive, to the
fullest extent possible, the defense of an inconvenient forum. The other parties
hereby consent to and grant any such court jurisdiction over the persons of such
parties and over the subject matter of any such dispute and agree that delivery
or mailing of process or other papers in connection with any such action or
proceeding in the manner provided hereinabove, or in such other manner as may be
permitted by law, shall be valid and sufficient service hereof.
(o) The duties and responsibilities of the Escrow Agent
hereunder shall be determined solely by the express provisions of this
Agreement, and no other or further duties or responsibilities shall be implied.
The Escrow Agent shall not have any liability under, nor any duty to inquire
into, the terms and provisions of any agreement or instructions, other than as
outlined in this Agreement.
(p) The duties of the Escrow Agent hereunder are solely
ministerial in nature, and the Escrow Agent shall not have any liability under,
or duty to inquire into, the terms and provisions of any other agreement or
document. The participation of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP as Escrow Agent
is being undertaken as an accommodation to the Company and the Placement Agent.
The Company and the Placement Agent acknowledge that the Escrow Agent, from time
to time, has served as counsel to the Placement Agent including, without
limitation, in connection with the negotiation, execution and delivery of the
Placement Agency Agreement and any other agreements or documents contemplated by
the Transaction. The Company and the Placement Agent expressly waive any
conflict of interest arising on account of such representation by the Escrow
Agent and its service as the Escrow Agent hereunder. The participation of Xxxxx
Xxxxxxx Xxxxxxx & Xxxxx LLP as Escrow Agent shall in no way hinder or limit the
present or future ability of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP to act as counsel
to the Placement Agent with respect to any matter including, but not limited to,
disputes with regard to this Agreement; provided, however, that such
representation shall not affect the Escrow Agent's obligations hereunder and
shall be at the sole cost and expense of the Placement Agent.
(q) If any property held by the Escrow Agent hereunder shall
be attached, garnished or levied upon under an order of court, or the delivery
thereof shall be stayed or enjoined by any order of court, or any other writ,
order, judgment or decree shall be entered or issued by any court affecting such
property, or any part thereof, or any act of the Escrow Agent,
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then the Escrow Agent is hereby expressly authorized to use its sole discretion
to obey and comply with all writs, orders, judgments or decrees so entered or
issued, whether with or without jurisdiction, and in the case the Escrow Agent
obeys and complies with any such writ, order, judgment or decree, it shall not
be liable to any person, firm or corporation by reason of such compliance
notwithstanding the fact that such writ, order, judgment or decree may be
subsequently reversed, modified, annulled, set aside or vacated.
7. NOTICES. All notices, requests and other communications to any party
hereunder shall be in writing (including telecopy, telex or similar writing) and
shall be deemed given or made as of the date delivered, if delivered personally
or by telecopy (provided that delivery by telecopy shall be followed by delivery
of an additional copy personally, by mail or overnight courier), one day after
being delivered by overnight courier or three days after being mailed by
registered or certified mail (postage prepaid, return receipt requested), to the
parties at the following addresses (or to such other address or telex or
telecopy number as a party may have specified by notice given to the other party
pursuant to this provision):
If to the Company, to:
Somanetics Corporation
0000 Xxxx Xxxxx Xxxx
Xxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
If to Xxxxx Xxxxxx & Co., Inc., to:
Xxxxx Xxxxxx & Co., Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: A. Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
If to the Escrow Agent, to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxxx
Telecopier No.: (000) 000-0000
,except that notices and communications to the Escrow Agent and notices of
changes of address shall not be effective until received. In the event that the
Escrow Agent, in its sole discretion, shall determine that an emergency exists,
the Escrow Agent may use such other means of communications as the Escrow Agent
deems advisable.
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(b) In the event funds transfer instructions are given (other
than in writing at the time of execution of this Agreement), whether in writing,
by telecopier or otherwise, the Escrow Agent is authorized to seek confirmation
of such instructions by telephone call-back to the person or persons designated
on Schedule 1 hereto, and the Escrow Agent may rely upon the confirmations of
anyone purporting to be the person or persons so designated. The person and
telephone numbers for all call-backs may be changed only in a writing actually
received by the Escrow Agent. The parties to this Agreement acknowledge that
such security procedure is commercially reasonable.
(c) It is understood that the Escrow Agent and the
beneficiary's bank in any funds transfer may rely solely upon any account
numbers or similar identifying number provided by the other parties hereto to
identify (i) the beneficiary, (ii) the beneficiary's bank or (iii) an
intermediary bank. The Escrow Agent may apply any of the escrowed funds for any
payment order it executes using any such identifying number, even where its use
may result in a person other than the beneficiary being paid, or the transfer of
funds to a bank other than the beneficiary's bank, or an intermediary bank
designated.
8. Miscellaneous.
(a) The Escrow Agent hereby consents to the use of its name
and the reference to the escrow arrangement in the Registration Statement.
(b) This Agreement shall be binding upon and inure solely to
the benefit of the parties hereto and their respective successors and assigns
and representatives and the potential investors of the Securities and shall not
be enforceable by or inure to the benefit of any other third party except as
provided in paragraph (i) of Section 6 with respect to the termination of, or
resignation by, the Escrow Agent. No party may assign any of its rights or
obligations under this Agreement without the written consent of the other
parties.
(c) This Agreement shall be construed in accordance with and
governed by the internal law of the State of New York (without reference to its
rules as to conflicts of law).
(d) This Agreement may only be modified by a writing signed by
all of the parties hereto and consented to by the potential investors of the
Securities adversely affected by such modifications. No waiver hereunder shall
be effective unless in a writing signed by the party to be charged.
(e) This Agreement shall terminate upon the payment pursuant
to Section 5 of all amounts held in the Escrow Account.
(f) The section headings herein are for convenience only and
shall not affect the construction thereof. Unless otherwise indicated,
references to Sections are to Sections contained herein.
(g) This Agreement may be executed in one or more counterparts
but all such separate counterparts shall constitute but one and the same
instrument; provided that, although executed in counterparts, the executed
signature pages of each such counterpart may be affixed to a single copy of this
Agreement which shall constitute an original.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed as of the day and year first above written.
SOMANETICS CORPORATION
By: _________________________________
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
XXXXX XXXXXX & CO., INC.
By: ________________________________________
Name: A. Xxxxx Xxxxxx
Title: Chairman, President and
Chief Executive Officer
XXXXX XXXXXXX XXXXXXX & XXXXX LLP
By: ________________________________________
Name: Xxxxxxx Xxxxxxxxxx
Title: Partner
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SCHEDULE 1
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
If to Somanetics Corporation:
Name Telephone Number
---- ----------------
1. Xxxxx X. Xxxxxxx (000) 000-0000
--------------
2. Xxxxxxx X. Xxxxxx (000) 000-0000
--------------
If to Xxxxx Xxxxxx & Co., Inc.
Name Telephone Number
---- ----------------
1. A. Xxxxx Xxxxxx (000) 000-0000
--------------
2. Xxxx Xxxxxxxx (000) 000-0000
--------------
Telephone call-backs shall be made to each of the foregoing if joint
instructions are required pursuant to this Agreement
EXHIBIT A
SOMANETICS CORPORATION ESCROW DEPOSIT
Amount of Number of Tax ID/
Name Deposit Securities Address Soc. Sec. No.
---- ------- ---------- ------- -------------
A-1
EXHIBIT B
[FORM OF OFFERING TERMINATION NOTICE]
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxxx
Dear Sirs:
Pursuant to Section 5(a) of the Escrow Agreement, dated as of December
__, 2001 (the "Escrow Agreement"), by and among Somanetics Corporation, Xxxxx
Xxxxxx & Co., Inc. and you, the undersigned hereby notify you of the termination
of the offering of the Securities (as that term is defined in the Escrow
Agreement) and directs you to make payments to potential investors provided for
in Section 5(a) of the Escrow Agreement.
Very truly yours,
SOMANETICS CORPORATION
By: _____________________________________
Name:
Title:
XXXXX XXXXXX & CO., INC.
By: _____________________________________
Name:
Title:
B-1
EXHIBIT C
[FORM OF CLOSING NOTICE]
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxxx
Dear Sirs:
Pursuant to Section 5(b) of the Escrow Agreement, dated as of December
__, 2001 (the "Escrow Agreement"), by and among Somanetics Corporation, Xxxxx
Xxxxxx & Co., Inc. and you, the undersigned hereby certify that they have
received subscriptions for the Securities (as that term is defined in the Escrow
Agreement), and the Company will sell and deliver the Securities to the
potential investors at a closing to be held on _____________, 2001 (the "Closing
Date"). The names of the potential investors, the number of Securities
subscribed for by each of such potential investors and the related subscription
amounts are set forth on the schedule annexed hereto.
We hereby request that the aggregate subscription amount be paid to the
Placement Agent and the Company as follows:
1. to Somanetics Corporation: $_________
2. to Xxxxx Xxxxxx & Co., Inc.: $_________
Very truly yours,
SOMANETICS CORPORATION
By: __________________________________
Name:
Title:
XXXXX XXXXXX & CO., INC.
By: __________________________________
Name:
Title:
C-1
EXHIBIT D
[FORM OF SUBSCRIPTION TERMINATION NOTICE]
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxxx
Dear Sirs:
Pursuant to Section 5(c) of the Escrow Agreement, dated as of December
__, 2001 (the "Escrow Agreement"), by and among Somanetics Corporation, Xxxxx
Xxxxxx & Co., Inc. and you, the undersigned hereby notify you that the following
subscription(s) have been rejected:
---------------------------------------- -------------------------------------- --------------------------------------
AMOUNT OF SUBSCRIBED SECURITIES AMOUNT OF
NAME OF SUBSCRIBER(S) REJECTED REJECTED SUBSCRIPTION
---------------------------------------- -------------------------------------- --------------------------------------
---------------------------------------- -------------------------------------- --------------------------------------
Very truly yours,
SOMANETICS CORPORATION
By: ____________________________________
Name:
Title:
XXXXX XXXXXX & CO., INC.
By: ____________________________________
Name:
Title:
D-1
