SECURITIES ESCROW AGREEMENT
THIS
SECURITIES ESCROW AGREEMENT, dated as of ,
2007
(the “Agreement”),
by
and among APEX BIOVENTURES ACQUISITION CORPORATION, a Delaware corporation
(the
“Company”),
the
undersigned parties listed under Initial Stockholders on the signature page
hereto (collectively, the “Initial
Stockholders”)
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation (the
“Escrow
Agent”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated
_________,
2007
(“Underwriting
Agreement”),
with Lazard Capital Markets LLC and Ladenburg Xxxxxxxx & Co. Inc. (the
"Underwriters"), each acting
as
underwriter, pursuant to which, among other matters, the Underwriters
have agreed to purchase 7,500,000 units (the “Units”)
of the
Company’s securities. Each Unit consists of one share of the Company’s
common stock, par value $0.0001 per share (“Common
Stock”),
and
one Warrant, each Warrant to purchase one share of Common Stock, all as more
fully described in the Company’s final Prospectus, dated ,
2007
(the “Prospectus”),
comprising part of the Company’s Registration Statement on Form S-1, as amended
(File No. 333-135755) under the Securities Act of 1933, as amended
(the “Registration
Statement”),
which
was declared effective on ,
2007
(the “Effective
Date”);
WHEREAS,
the Initial Stockholders have agreed as a condition of the sale of the Units
to
deposit (a) those shares of Common Stock of the Company purchased by each of
them as set forth opposite their respective names under the heading “Number of
Founder Shares” in Exhibit
A
attached
hereto (collectively, the “Founder
Shares”),
and
(b) including those shares of Common Stock of the Company set forth
opposite their respective names under the heading “Forfeitable Shares” in
Exhibit
A
attached
hereto (collectively the “Forfeitable
Shares” and collectively,
with the Founder Shares, plus such additional shares as may be hereafter
deposited into escrow pursuant to Section 4.2 or otherwise, less such
Forfeitable Shares which may be forfeited in accordance with the
Share Forfeiture Agreement (defined below) and Section 3 below, the
“Escrow
Shares”),
in
escrow as hereinafter provided;
WHEREAS,
the Company has entered into a Warrant Purchase Agreement with the Initial
Stockholders (the “Initial
Warrantholders”),
dated
__________ __, 2007 (the “Warrant
Purchase Agreement”),
pursuant to which the Initial Warrantholders have agreed to purchase 1,800,000
warrants (the “Founding
Director Warrants”)
in a
private placement transaction;
WHEREAS,
the Initial Warrantholders have agreed as a condition of the sale of the
Founding Director Warrants to deposit the Founding Director Warrants (together
with the Escrow Shares, the “Escrow
Securities”),
with
the Escrow Agent as hereinafter provided;
WHEREAS,
the Company and each of the Initial Stockholders have entered into a letter
agreement, dated as of _______, 2007 (the “Share
Forfeiture Agreement”),
pursuant to which each of the Initial Stockholders have agreed to the
forfeiture of some or all of their Forfeitable Shares under certain
circumstances; and
WHEREAS,
the Company and the Initial Stockholders (such term as used herein includes
the
Initial Warrantholders) desire that the Escrow Agent accept the Escrow
Securities, in escrow, to be held and disbursed as hereinafter
provided.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants,
representations and warranties contained herein and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Appointment
of Escrow Agent.
The Company and the Initial Stockholders hereby appoint the Escrow Agent to
act
in accordance with and subject to the terms of this Agreement, and the Escrow
Agent hereby accepts such appointment and agrees to act in accordance with
and
subject to such terms.
2. Deposit
of Escrow Securities.
On or before the Effective Date, each of the Initial Stockholders shall deliver
to the Escrow Agent certificates representing his or her respective Escrow
Securities, to be held and disbursed subject to the terms and conditions of
this
Agreement. Each Initial Stockholder acknowledges that the certificate
representing his or her Escrow Securities is legended to reflect the deposit
of
such Escrow Securities under this Agreement.
3. Disbursement
of the Escrow Securities.
(a) The Escrow Agent shall hold the Escrow Shares until (a) the expiration
of
one year from consummation of the Company’s initial Business Combination (as
such term is defined in the Certificate of Incorporation of the Company), or
(b)
any time after six months from consummation of a Business Combination if the
volume weighted average price of the Common Stock equals or exceeds $11.50
per
share for any 20 trading days within any 30 trading day period (the
“Escrow
Shares Escrow Period”),
on
which date it shall, upon written instructions from each Initial Stockholder,
disburse each of the Initial Stockholder’s Escrow Shares to such Initial
Stockholder; provided, however, that (i) upon receipt of joint written notice
from the Company and the Initial Stockholders that some or all of
the Forfeitable Shares have been forfeited pursuant to the Share
Forfeiture Agreement, the Escrow Agent will release to the Company all of
the stock certificates evidencing Forfeitable Shares (it being understood
that, if the Company has elected to purchase less than all of the Forfeitable
Shares, it shall (A) issue new stock certificates, registered to each of the
Initial Stockholders, representing the Forfeitable Shares held by each Initial
Stockholder which have not be so purchased, and (B) deliver such new stock
certificates to the Escrow Agent to hold pursuant to this Agreement), (ii)
if
the Escrow Agent is notified by the Company pursuant to Section 6.7 hereof
that the Company is being liquidated at any time during the Escrow Shares Escrow
Period, then immediately prior to the effectiveness of such liquidation, the
Escrow Agent shall promptly destroy the certificates representing the Escrow
Shares and the Escrow Shares shall no longer be considered to be issued and
outstanding securities of the Company, and (iii) if, after the Company
consummates a Business Combination (as such term is defined in the Registration
Statement), it (or the surviving entity) subsequently consummates a liquidation,
merger, stock exchange or other similar transaction which results in all of
the
stockholders of such entity having the right to exchange their shares of Common
Stock for cash, securities or other property, then the Escrow Agent will, upon
receipt of a certificate, executed by the Chairman, Chief Executive Officer
or Chief Financial Officer of the Company, in form reasonably
acceptable to the Escrow Agent, that such transaction is then being consummated,
release the Escrow Shares to the Initial Stockholders upon consummation of
the
transaction so that they can similarly participate. The Escrow Agent shall
have
no further duties hereunder after the disbursement or destruction of the Escrow
Shares in accordance with this Section 3(a).
(b)
The
Escrow Agent shall hold the Founding Director Warrants until such date that
is
six (6) months following the date that the Company consummates a Business
Combination (as such term is defined in the Registration Statement) (the
“Founding
Director Warrants Escrow Period”);
provided, however, that if the Escrow Agent is notified by the Company pursuant
to Section 6.7 hereof that the Company is being liquidated at any time during
the Founding Director Warrants Escrow Period, then immediately prior to the
effectiveness of such liquidation, the Escrow Agent shall promptly destroy
the
certificates representing the Founding Director Warrants and the Founding
Director Warrants shall no longer be considered issued and outstanding
securities of the Company. The Escrow Agent shall have no further duties
hereunder after the disbursement or destruction of the Founding Director
Warrants in accordance with this Section 3(b).
4. Rights
of Initial Stockholders in Escrow Shares.
4.1 Voting
Rights as a Stockholder.
Subject to the terms of the Insider Letters described in Section 4.4
hereof, and except as herein provided, the Initial Stockholders shall retain
all
of their rights as stockholders of the Company during the Escrow Period,
including, without limitation, the right to vote their Escrow
Shares.
4.2 Dividends
and Other Distributions in Respect of the Escrow Shares.
During the Escrow Period, all dividends payable in cash with respect to the
Escrow Shares shall be paid to the Initial Stockholders, but all dividends
payable in stock or other non-cash property (the “Non-Cash
Dividends”)
shall
be delivered to the Escrow Agent to hold in accordance with the terms
hereof. As used herein, the term “Escrow Shares” shall be deemed to
include the Non-Cash Dividends distributed thereon, if any.
2
4.3 Restrictions
on Transfer.
During the Escrow Share Escrow Period or the Founding Director Warrants Escrow
Period, as applicable, no sale, transfer or other disposition may be made of
any
or all of the Escrow Securities except, with respect to (a) an Initial
Stockholder that is an entity, a dividend, distribution or contribution to
any
individual or entity controlling, controlled by, or under common control with
such Initial Stockholder, or any stockholder, member, partner or limited partner
of such Initial Stockholder, for which no or nominal consideration is received,
and (b) with respect to an Initial Stockholder who is an individual, (i) to
a
member of Initial Stockholder’s immediate family or to a trust, the beneficiary
of which is an Initial Stockholder or a person related to an Initial Stockholder
by blood, marriage or adoption, or (ii) by virtue of the laws of descent and
distribution upon death of any Initial Stockholder; provided,
however,
that
such permissive transfers may be implemented only upon the respective
transferee’s written agreement to be bound by the terms and conditions of this
Agreement and of the Insider Letter signed by the Initial Stockholder
transferring the Escrow Securities. During the Escrow Period, no Initial
Stockholder shall pledge or grant a security interest in his, her or its Escrow
Securities or grant a security interest in his, her or its rights under this
Agreement.
4.4 Insider
Letters.
Each of the Initial Stockholders has executed a letter agreement with the
Underwriters and the Company, dated as indicated on Exhibit A
hereto,
and which is filed as an exhibit to the Registration Statement (“Insider
Letter”),
respecting the rights and obligations of such Initial Stockholder in certain
events, including, but not limited to, the liquidation of the
Company.
5. Concerning
the Escrow Agent.
5.1 Good
Faith Reliance.
The Escrow Agent shall not be liable for any action taken or omitted by it
in
good faith and in the exercise of its own best judgment, and 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 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 have given
its prior written consent thereto.
5.2 Indemnification.
The Escrow Agent shall be indemnified and held harmless by the Company from
and
against any expenses, including counsel fees and disbursements, or loss suffered
by the Escrow Agent in connection with any action, suit or other proceeding
involving any claim which in any way, directly or indirectly, arises out of
or
relates to this Agreement, the services of the Escrow Agent hereunder, or the
Escrow Shares held by it hereunder, other than expenses or losses arising from
the gross negligence or willful misconduct of the Escrow Agent. Promptly
after the receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall notify
the other parties hereto in writing. In the event of the receipt of such
notice, the Escrow Agent, in its sole discretion, may commence an action in
the
nature of interpleader in an appropriate court to determine ownership or
disposition of the Escrow Securities or it may deposit the Escrow Securities
with the clerk of any appropriate court or it may retain the Escrow Securities
pending receipt of a final, non-appealable order of a court having jurisdiction
over all of the parties hereto directing to whom and under what circumstances
the Escrow Securities are to be disbursed and delivered. The provisions of
this Section 5.2 shall survive in the event the Escrow Agent resigns or is
discharged pursuant to Sections 5.5 or 5.6 below.
3
5.3 Compensation.
The Escrow Agent shall be entitled to reasonable compensation from the Company
for all services rendered by it hereunder, as set forth on Exhibit B
hereto. The Escrow Agent shall also be entitled to reimbursement from the
Company for all expenses paid or incurred by it in the administration of its
duties hereunder including, but not limited to, all legal counsel and agents’
fees and disbursements and all taxes or other governmental charges.
5.4 Further
Assurances.
From time to time, on and after the date hereof, the Company and the Initial
Stockholders shall deliver, or cause to be delivered, to the Escrow Agent such
further documents and instruments and shall do or cause to be done such further
acts as the Escrow Agent shall reasonably 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.
5.5 Resignation.
The Escrow Agent may resign at any time and be discharged from its duties as
escrow agent hereunder by its giving the other parties hereto written notice
and
such resignation shall become effective as hereinafter provided. Such
resignation shall become effective at such time that the Escrow Agent shall
turn
over to a successor escrow agent appointed by the Company and approved by Lazard
Capital Markets LLC, the Escrow Securities held hereunder. If no new
escrow agent is so appointed within the sixty (60) day period following the
giving of such notice of resignation, the Escrow Agent may deposit the Escrow
Securities with any court it reasonably deems appropriate.
5.6 Discharge
of Escrow Agent.
The Escrow Agent shall resign and be discharged from its duties as escrow agent
hereunder if so requested in writing at any time by the Company and a majority
of the Initial Stockholders, jointly; provided, however, that such resignation
shall become effective only upon acceptance of appointment by a successor escrow
agent as provided in Section 5.5.
5.7 Liability.
Notwithstanding anything herein to the contrary, the Escrow Agent shall not
be
relieved from liability hereunder for its own gross negligence or its own
willful misconduct.
6. Miscellaneous.
6.1 Governing
Law. This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with the laws of the State of New York. Each of the
parties hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced
in
the courts of the State of New York or the United States District Court for
the
Southern District of New York (each, a “New
York court”),
and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
Each of the parties hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum.
6.2 Third
Party Beneficiaries.
Each of the Initial Stockholders hereby acknowledges that the Underwriters
are third party beneficiaries of this Agreement and this Agreement may not
be modified or changed without the prior written consent of the
Underwriters.
4
6.3 Entire
Agreement.
This Agreement contains the entire agreement of the parties hereto with respect
to the subject matter hereof and, except as expressly provided herein, may
not
be changed or modified except by an instrument in writing signed by the party
to
be charged and by the Underwriters.
6.4 Headings.
The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation thereof.
6.5 Binding
Effect.
This Agreement shall be binding upon and inure to the benefit of the respective
parties hereto and their legal representatives, successors and
assigns.
6.6 Notices.
Any notice or other communication required or which may be given hereunder
shall
be in writing and either be delivered personally or be mailed, certified or
registered mail, or by private national courier service, return receipt
requested, postage prepaid, and shall be deemed given when so delivered
personally or, if mailed, two days after the date of mailing, as
follows:
If
to the
Company, to:
00
Xxxx
Xxxx
Xxxxxxxxxxxx,
Xxxxxxxxxx 00000
Attention:
Chief Executive Officer
If
to a
an Initial Stockholder, to his, her or its address set forth in Exhibit
A;
and
if to
the Escrow Agent, to:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Chairman
A
copy of
any notice sent hereunder shall be sent (which shall not constitute notice)
to:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
000
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
X.
Xxxxxxxx, Esq. and
Xxxxxxx
X. Xxxxxxx, Esq.
and:
Lazard
Capital Markets LLC
00
Xxxxxxxxxxx Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx Xxxxx
Xxxxxxxxx
Xxxxxxxx & Co. Inc.
000
Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxx X. Xxxx
Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxxxxxx X. Xxxxxxx, Esq.
5
The
parties may change the persons and addresses to which the notices or other
communications are to be sent by giving written notice to any such change in
the
manner provided herein for giving notice.
6.7 Liquidation
of Company.
The
Company shall give the Escrow Agent written notification of the liquidation
and
dissolution of the Company in the event that the Company fails to consummate
a
Business Combination within the time period(s) specified in the
Prospectus.
6.8 Waiver.
Notwithstanding anything herein to the contrary, the Escrow Agent hereby
waives
any and all right, title, interest or claim of any kind (“Claim”) in
or to any distribution of the Trust Account, and hereby agrees not to seek
recourse, reimbursement, payment or satisfaction for any Claim against the
Trust
Account for any reason whatsoever.
6.9 Counterparts.
This
Agreement may be executed in several counterparts, each one of which may be
delivered by facsimile transmission and each of which shall constitute an
original, and together shall constitute but one instrument.
(Remainder
of page intentionally left blank. Signature pages to follow.)
6
IN
WITNESS WHEREOF, the undersigned have executed this Stock Escrow Agreement
as of
the date first written above.
|
COMPANY:
|
APEX BIOVENTURES ACQUISITION CORPORATION | ||
| By: | |||
|
Xxxxxxx X. Xxxxxxx, Chief Executive Officer |
|||
|
INITIAL
STOCKHOLDERS:
|
K. XXXXXXX XXXXXXX |
||
|
XXXX X. XXXXXXXX |
|||
|
XXXXX X. XXXXX |
|||
|
XXXXXX X. XXXXXX |
|||
| INVIVOS LIMITED PARTNERS | |||
| By: | Invivos Partners, Ltd., its general partner | ||
| By: | |||
|
Xxxxxxx X. Xxxxxxx, President |
|||
| TREASURE ROAD PARTNERS, LTD. | |||
| By: | |||
|
Xxxx X. Xxxxxxxx, Manager |
|||
|
XXXXXXX X. XXXXXXX |
|||
|
XXXXXX X. XXX XXXXXXXX |
|||
| XXX CLINICAL LABORATORIES LTD. | |||
| By: | |||
|
Name: Title: |
|||
EXHIBIT
A
TO
|
Name
and Address of
Initial
Stockholder
|
|
Number
of
Founder Shares
|
|
Stock
Certificate
Number
|
|
Number
of Forfeitable
Shares
|
|
Stock
Certificate
Number
|
|
Number
of
Warrants |
|
Warrant
No.
|
Date
of
Insider
Letter
|
|
|
Xxxx
X. Xxxxxxxx
000
Xxxx Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
109,837
|
|
16,476
|
|
75,000
|
_____ __,
2007
|
||||||||
|
Xxxxx
X. Xxxxx
00000
Xxxxxx Xxxx
Xxxxxxx,
XX 00000
|
159,957
|
|
23,994
|
|
200,000
|
_____
__, 2007
|
||||||||
|
Xxxxxx
X. Xxxxxx
c/o
Craig Drill Capital
000
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
|
345,487
|
|
51,823
|
|
325,000
|
_____
__, 2007
|
||||||||
|
K.
Xxxxxxx Xxxxxxx
00
Xxxx Xxxx
Xxxxxxxxxxxx,
XX 00000
|
411,133
|
|
61,670
|
|
335,000
|
_____
__, 2007
|
||||||||
|
Invivos
Limited Partners
0000
Xxxxxx Xxxxx
Xxxxx
Xxxxxxxxx, XX X0X 0X0
|
233,790
|
|
35,068
|
|
225,000
|
_____
__, 0000
|
||||||||
|
Xxxxxxxx
Xxxx Partners, Ltd.
000
Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
|
312,861
|
|
46,929
|
|
325,000
|
_____
__, 2007
|
||||||||
|
Xxxxxxx
X. Xxxxxxx
Department
of Biology, Room 68-30A
Massachusetts
Institute of Technology
Xxxxxxxxx,
XX 00000
|
84,760
|
|
12,714
|
|
100,000
|
_____
__, 0000
|
||||||||
|
Xxxxxx
X. Xxx Xxxxxxxx
Xxxxxxxx
Xxxxxx
Xxxx
Xxxxx, XX 00000
|
132,415
|
|
19,862
|
|
115,000
|
_____
__, 2007
|
||||||||
|
Xxx
Clinical Laboratories Ltd.
#000-0000 Xxxxxx Xxx Xxxxxxx, XX X0X 0X0
|
84,760
|
12,714
|
100,000
|
_____
__, 2007
|
||||||||||
| Total |
1,875,000
|
281,250
|
1,800,000
|
A-1
