INVESTMENT MANAGEMENT TRUST AGREEMENT
This
Agreement is made as of _________, 2007, by and between Apex Bioventures
Acquisition Corporation (the “Company”)
and
Continental Stock Transfer & Trust Company (the “Trustee”).
WHEREAS,
the Company’s Registration Statement on Form S-1, as amended, File No.
333-135755 (the “Registration
Statement”),
for
its initial public offering of securities (“IPO”)
has
been declared effective as of the date hereof by the Securities and Exchange
Commission (the “Effective
Date”);
WHEREAS, Lazard
Capital Markets LLC is acting
as
the representative (the “Representative”) of the underwriters
in the IPO;
WHEREAS,
the Company has agreed to issue securities in a private placement that will
occur immediately prior to the IPO (the “Placement”);
WHEREAS,
as described in the Registration Statement, and in accordance with the Company’s
Certificate of Incorporation, an aggregate of $58,590,000 (or $67,230,000
if the underwriters' over-allotment option is exercised in full), which is
comprised of (i) the net proceeds of the IPO (except as provided in the
Registration Statement); (ii) the $1,800,000 received by the Company in exchange
for its warrants issued pursuant to the Placement; and (iii) an
additional $1,800,000 (or $2,070,000 if the
underwriters' over-allotment option is exercised in full) of the proceeds
of the IPO, representing deferred underwriting discounts and commissions (the
“Deferred
Discount”)
which the underwriters have agreed to deposit in the Trust Account (as
defined below), will be delivered to the Trustee to be deposited and held in
the
Trust Account for the benefit of the Company, and the holders of shares of
the
Company’s common stock, par value $0.0001 per share (“Common
Stock”),
that
form a part of the units of the Company’s securities issued in the IPO (the
“Units”)
and
the underwriters. The amount to be delivered to the Trustee will be referred
to
herein as the “Property,”
the
stockholders for whose benefit the Trustee shall hold the Property will be
referred to as the “Public
Stockholders,”
and
the Public Stockholders, the Representative and the Company will be referred
to
collectively as the “Beneficiaries;”
and
WHEREAS,
in the event that securities offered in the IPO are registered in Colorado
pursuant to Section 11-51-302(6) of the Colorado Revised Statutes (the
“CRS”),
a
copy of which is attached hereto, the provisions thereof are made a part hereof;
WHEREAS,
the Company and the Trustee desire to enter into this Agreement to set forth
the
terms and conditions pursuant to which the Trustee shall hold the Property;
and
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Agreements
and Covenants of Trustee.
The
Trustee hereby agrees and covenants to:
(a) hold
the
Property in trust for the Beneficiaries in accordance with the terms of this
Agreement, including, without limitation, with respect to the Public
Stockholders, the terms of Section 11-51-302(6) of the CRS, in a segregated
trust account (“Trust
Account”)
established by the Trustee at a branch of JPMorgan Chase NY Bank selected by
the
Trustee;
(b) manage,
supervise and administer the Trust Account subject to the terms and conditions
set forth herein;
(c) in
a
timely manner, upon the instruction of the Company, to invest and reinvest
the
Property (through Xxxxxx Xxxxxxx or other intermediary) in “government
securities,” within the meaning of Section 2(a)(16) of the Investment Company
Act of 1940, as amended (the “1940 Act”), having a maturity of 180 days or less
or in any open ended investment company registered under the 1940 Act that
holds
itself out as a money market fund meeting the conditions of paragraphs (c)(2),
(c)(3) and (c)(4) under Rule 2a-7 promulgated under the 1940 Act;
(d) collect
and receive, when due, all principal and income arising from the Property,
which
shall become part of the “Property,” as such term is used herein;
(e) notify
the Company and the Representative of all communications received by it
with respect to any Property requiring action by the Company;
(f) supply
any necessary information or documents as may be requested by the Company in
connection with the Company’s preparation of the tax returns for the Trust
Account;
(g) participate
in any plan or proceeding for protecting or enforcing any right or interest
arising from the Property if, as and when instructed by the Company
and/or the Representative to do so; and
(h) render
to
the Company and to the Representative, and to such other persons as the Company
may instruct, monthly written statements of the activities of and amounts in
the
Trust Account reflecting all receipts and disbursements of the Trust Account,
which information will be based in part upon information provided by Xxxxxx
Xxxxxxx.
2. Limited
Distributions of Income on Property.
(a) If
there
is any income tax obligation relating to the income from the Property in the
Trust Account, then, at the written instruction of the Company, the Trustee
shall make available in cash from the Property in the Trust Account an amount
specified by the Company as owing to the applicable taxing authority, which
amount shall be paid directly to the taxing authority (and not through the
Company) by electronic funds transfer, account debit or other method of payment;
provided,
however,
that if
a taxing authority will not accept payment in such manner, then any payment
which would have been made directly to the taxing authority may be made to
the
Company, and the Company shall forward such payment to the taxing
authority.
(b)
Upon
one
or more written requests from the Company, which may be given not more than
once
in any calendar month period, the Trustee shall distribute to the Company
interest earned on the Trust Account, net of taxes payable, up to a maximum
of
$1,600,000. The distributions requested by the Company may be for any amount,
provided that (i) in the aggregate, all distributions under this Section 2(b)
may not exceed $1,600,000 (subject to the limitation imposed by Section 2(c)
below) and (ii) that such distributions may only be made if and to the extent
that interest has been earned, net of taxes, on the amount initially deposited
into the Trust Account.
(c) Except
as
provided in Sections 2(a) and 2(b) above and as provided in Section 3 and 8(a)
below, no other distributions from the Trust Account shall be
permitted.
3. Liquidation
of the Trust Account.
The
Trustee agrees to commence liquidation of the Trust Account promptly after
receipt of and only in accordance with the terms of a letter (“Termination
Letter”),
in a
form substantially similar to that attached hereto as either Exhibit A or
Exhibit B, signed on behalf of the Company by its (i) Chief Executive Officer
or
Chairman of the Board and (ii) Chief Financial Officer, and complete the
liquidation of the Trust Account and disburse the Property in the Trust Account
(which disbursement shall include, in the event of a Business Combination,
payment of the Deferred Discount to the Representative) only as directed in
the
Termination Letter and the other documents referred to therein. The Trustee
understands and agrees that, except as provided in Sections 2 and 8(a) hereof
and this Section 3, disbursements from the Trust Account shall be made only
pursuant to a duly executed Termination Letter, together with the other
documents referenced herein. In
all
cases, the Trustee shall provide the Representative with a copy of any
Termination Letters and/or any other correspondence that it receives with
respect to any proposed withdrawal from the Trust Account promptly after it
receives same. The provisions of this Section 3 may not be modified, amended
or
deleted under any circumstances. As used in this Agreement, the term
“Business Combination” means the acquisition by the Company, through a merger,
capital stock exchange, asset acquisition, stock purchase or other similar
business combination with, one or more operating businesses in the healthcare
industry, as more fully described in the prospectus forming a part of the
Registration Statement.
2
4. Agreements
and Covenants of the Company.
The
Company hereby agrees and covenants:
(a) to
provide all instructions to the Trustee hereunder in writing, signed by the
Company’s Chief Executive Officer. In addition, except with respect to its
duties under Section 3 above, the Trustee shall be entitled to rely on, and
shall be protected in relying on, any verbal or telephonic advice or instruction
which it, in good faith, believes to be given by the Company’s Chief Executive
Officer, provided that the Company and/or the Representative shall promptly
confirm such instructions in writing; and
(b)
subject
to the provisions of
Section 7 hereof, to
hold
the Trustee harmless and indemnify the Trustee from and against any and all
expenses, including reasonable counsel fees and disbursements, or loss suffered
by the Trustee in connection with any action, suit or other proceeding brought
against the Trustee involving any claim, or in connection with any claim or
demand which in any way arises out of or relates to this Agreement, the services
of the Trustee hereunder, or the Property or any income earned from investment
of the Property, except for expenses and losses resulting from the Trustee’s
gross negligence or willful misconduct. Promptly after the receipt by the
Trustee of notice of demand or claim or the commencement of any action, suit
or
proceeding, pursuant to which the Trustee intends to seek indemnification under
this Section 4(b), it shall notify the Company in writing of such claim
(hereinafter referred to as the “Indemnified
Claim”).
The
Trustee shall have the right to conduct and manage the defense against such
Indemnified Claim, provided that the Trustee shall obtain the consent of the
Company with respect to the selection of counsel, which consent shall not be
unreasonably withheld. The Trustee may not agree to settle any Indemnified
Claim
without the prior written consent of the Company. The Company may participate
in
such action with its own counsel;
(c) to
pay
the Trustee an initial acceptance fee of $1,000 and an annual fee of $3,000
(it
being expressly understood that the Property shall not be used to pay any of
such fees). The Company shall pay the Trustee the initial acceptance fee and
first year’s fee at the consummation of the IPO and thereafter shall pay on each
anniversary of the Effective Date, the $3,000 annual fee in respect of the
coming year. The Trustee shall refund to the Company the pro rata portion of
any
annual fee attributable to any period after the liquidation of the Trust Fund.
The Company shall not be responsible for any other fees or charges of the
Trustee;
(d)
within
five business days after the Representative’s over-allotment option (or any
unexercised portion thereof) expires or is exercised in full, to provide
the
Trustee notice in writing (with a copy to the Representative) of the total
amount of the Deferred Compensation, which shall in no event be less than
$1,800,000;
(e)
to
provide to the Trustee any letter of intent, agreement in principle or
definitive agreement that is executed in connection with a Business Combination,
together with a certified copy of a unanimous resolution of the Board of
Directors of the Company affirming that such letter of intent, agreement
in
principle or definitive agreement is in effect; and
(f) in
connection with any vote of the Company’s stockholders regarding a Business
Combination, to provide to the Trustee an affidavit or certificate of a firm
regularly engaged in the business of soliciting proxies and tabulating
stockholder votes verifying the vote of the Company’s stockholders regarding
such Business Combination.
5. Limitations
of Liability.
The
Trustee shall have no responsibility or liability to:
(a) take
any
action with respect to the Property, other than as directed in Sections 1 and
2
hereof, and the Trustee shall have no liability to any party except for
liability arising out of its own gross negligence or willful
misconduct;
3
(b) institute
any proceeding for the collection of any principal and income arising from,
or
institute, appear in or defend any proceeding of any kind with respect to,
any
of the Property, unless and until it shall have received written instructions
from the Company given as provided herein to do so and the Company shall have
advanced or guaranteed to it funds sufficient to pay any expenses incident
thereto;
(c) change
the investment of any Property, other than in compliance with Section
1(c);
(d) refund
any depreciation in principal of any Property;
(e) assume
that the authority of any person designated by the Company and/or the
Representative to give written instructions hereunder shall not be continuing
unless provided otherwise in such designation, or unless the Company
and/or the Representative shall have delivered a written revocation of such
authority to the Trustee;
(f) the
other
parties hereto 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 best judgment, except for its gross negligence or willful misconduct.
The Trustee may rely conclusively on, and shall be protected in acting upon,
any
order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Trustee), 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 Trustee, in good faith, to be
genuine and to be signed or presented by the proper person or persons. The
Trustee shall not be bound by any notice or demand, or any waiver, modification,
termination or rescission of this Agreement or any of the terms hereof, unless
evidenced by a written instrument delivered to the Trustee signed by the proper
party or parties and, if the duties or rights of the Trustee are affected,
unless it shall give its prior written consent thereto;
(g) verify
the correctness of the information set forth in the Registration Statement
or to
confirm or assure that any acquisition made by the Company or any other action
taken by it is as contemplated by the Registration Statement,
unless
an officer of the Trustee has actual knowledge thereof, written notice of such
event is sent to the Trustee or as otherwise required under Section 3 hereof;
and
(h) pay
any
taxes on behalf of the Trust Account (it being expressly understood that the
Trustee’s sole obligation with respect to taxes is as provided for by Section
2(a) hereof).
6. Certain
Rights Of Trustee.
(a) Before
the Trustee acts or refrains from acting, it may require a certificate from
the
Company’s Chief Executive Officer or an opinion of counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in
reliance on such officer’s certificate or opinion of counsel. The Trustee may
consult with counsel and the advice of such counsel or any opinion of counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(b) The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or gross negligence of any agent appointed with due
care.
(c) The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Agreement.
4
(d) The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Agreement, and it shall not be accountable for
the
Company’s use of the proceeds from the Trust Account. Notwithstanding the
effective date of this Agreement or anything to the contrary contained in this
Agreement, the Trustee shall have no liability or responsibility for any act
or
event relating to this Agreement or the transactions related thereto which
occurs prior to the date of this Agreement, and shall have no contractual
obligations to the Beneficiaries until the date of this Agreement.
7. No
Right of Set-Off.
The
Trustee waives any right of set-off or any right, title, interest or claim
of
any kind that the Trustee may have against the Property held in the Trust
Account. In the event that the Trustee has a claim against the Company under
this Agreement, the Trustee will pursue such claim solely against the Company
and not against the Property held in the Trust Account.
8. Termination.
This
Agreement shall terminate as follows:
(a) if
the
Trustee gives written notice to the Company that it desires to resign under
this
Agreement, the Company shall use its reasonable efforts to locate a successor
trustee during which time the Trustee shall continue to act in accordance with
the terms of this Agreement. At such time that the Company notifies the Trustee
that a successor trustee has been appointed by the Company and has agreed to
become subject to the terms of this Agreement, the Trustee shall transfer the
management of the Trust Account to the successor trustee, including, but not
limited, the transfer of copies of the reports and statements relating to the
Trust Account and the investment of the Property with Xxxxxx Xxxxxxx, whereupon
this Agreement shall terminate; provided, however, that, in the event the
Company does not locate a successor trustee within 90 days of receipt of the
resignation notice from the Trustee, the Trustee may submit an application
to
have the Property (and such reports and statements) deposited with the United
States District Court for the Southern District of New York and, upon such
deposit, the Trustee shall be immune from any liability whatsoever that arises
due to any actions or omissions to act by any party after such deposit;
or
(b) at
such
time that the Trustee has completed the liquidation of the Trust Account in
accordance with the provisions of Section 3 hereof, and distributed the Property
in accordance with the provisions of the Termination Letter, this Agreement
shall terminate.
9. Miscellaneous.
(a) This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and each of their respective successors and permitted assigns; provided, that,
no party hereto may assign any of its rights or obligations hereunder to any
other party without the express written consent of the other party hereto.
(b) The
Company and the Trustee each acknowledge that the Trustee will follow the
security procedures set forth below with respect to funds transferred from
the
Trust Account. Upon receipt of written instructions, the Trustee will confirm
such instructions with an “Authorized Individual” at an “Authorized Telephone
Number” listed on the attached Exhibit
C.
The
Company and the Trustee will each restrict access to confidential information
relating to such security procedures to authorized persons. Each party must
notify the other party immediately if it has reason to believe unauthorized
persons may have obtained access to such information or of any change in its
authorized personnel. In executing funds transfers, the Trustee will rely upon
account numbers or other identifying numbers of a beneficiary, beneficiary’s
bank or intermediary bank, rather than names. The Trustee shall not be liable
for any loss, liability or expense resulting from any error in an account number
or other identifying number, provided it has accurately transmitted the numbers
provided.
5
(c) This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without giving effect to conflict of laws. The
parties hereto consent to the jurisdiction and venue of any state or federal
court located in the State and County of New York for purposes of resolving
any
disputes hereunder. The parties hereto irrevocably submit to such jurisdiction,
which jurisdiction shall be exclusive, and hereby waive any objection to such
exclusive jurisdiction and that such courts represent an inconvenient forum.
Each of the parties hereto waives any right to trial by jury with respect to
any
action related to or arising out of this Agreement or the subject matter hereof.
(d) This
Agreement contains the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof. This Agreement or any provision
hereof may only be changed, amended or modified by a writing signed by each
of
the parties hereto; provided, however, that no such change, amendment or
modification (other than to correct a typographical error or similar technical
error) may be made to Sections 2 and 3 hereof without the consent of 95% of
the
Public Stockholders, it being the specific intention of the parties hereto
that
each Public Stockholder is and shall be a third-party beneficiary of this
Section 9(d) with the same right and power to enforce this Section 9(d) as
either of the parties hereto. For purposes of this Section 9(d), the “consent of
95% of the Public Stockholders” shall mean receipt by the Trustee of a
certificate from an entity certifying that (i) such entity regularly engages
in
the business of serving as inspector of elections for companies whose securities
are publicly traded, and (ii) either (A) 95% of the Public Stockholders of
record as of a record date established in accordance with Section 213(a) of
the
Delaware General Corporation Law, as amended (the “DGCL”), have voted in favor
of such amendment or modification, or (B) 95% of the Public Stockholders of
record as of a record date established in accordance with Section 213(b) of
the
DGCL has delivered to such entity a signed writing approving such amendment
or
modification.
(e) Any
notice, consent or request to be given in connection with any of the terms
or
provisions of this Agreement shall be in writing and shall be sent by express
mail or similar private courier service, by certified mail (return receipt
requested), by hand delivery or by facsimile transmission:
if
to the
Trustee, to:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
X.
Xxxxxx
Fax
No.:
(000) 000-0000
if
to the
Company, to:
00
Xxxx
Xxxx
Xxxxxxxxxxxx,
Xxxxxxxxxx 00000
Attn:
Chief Executive Officer
Fax
No.:
(000) 000-0000
in
either
case with a copy (which shall not constitute notice) to:
Lazard
Capital Markets LLC
00
Xxxxxxxxxxx Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxxx Xxxxx
Fax
No.: (000) 000-0000
Ladenburg
Xxxxxxxx & Co. Inc.
000
Xxxx 00xx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxx X. Xxxx
Fax
No.: (000) 000-0000
6
and
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C.
000
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. Xxxxxxxx, Esq. and Xxxxxxx X. Xxxxxxx, Esq.
Fax
No.:
(000) 000-0000
and
Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxxxxxxx X. Xxxxxxx
Fax
No.: (000) 000-0000
(f) Each
of
the Trustee and the Company hereby represents that it has the full right and
power and has been duly authorized to enter into this Agreement and to perform
its respective obligations as contemplated hereunder. The Trustee acknowledges
and agrees that it shall not make any claims or proceed against the Trust
Account, including by way of set-off, and shall not be entitled to any funds
in
the Trust Account under any circumstance.
(g) This
Agreement may be executed in two or more counterparts, any one of which need
not
contain the signatures of all parties, but all of which together will constitute
one and the same agreement. Facsimile signatures shall be deemed originals
for
all purposes hereunder.
(h) If,
at
any time during the term hereof, the Company’s Chief Executive Officer is
unavailable or inaccessible, then the provisions hereof shall be deemed to
provide, in the alternative, for the signature or action, as applicable, of
the
Company’s Chief Operating Officer or Chief Financial Officer.
(i) The
Trustee hereby consents to the inclusion of Continental Stock Transfer &
Trust Company in the Registration Statement and other materials relating to
the
IPO.
(j)
The
underwriters shall be third party beneficiaries of this Agreement and
this
Agreement may not be modified or changed without the prior written consent
of
the Representative.
(Remainder
of page intentionally left blank. Signature page(s) to
follow.)
7
IN
WITNESS WHEREOF, the parties have duly executed this Investment Management
Trust
Agreement as of the date first written above.
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Trustee | ||
| |
|
|
| By: | ||
|
Xxxxxx Xxxxxx, Chairman
|
||
| APEX BIOVENTURES ACQUISITION CORPORATION | ||
| |
|
|
| By: | ||
|
Xxxxxxx X. Xxxxxxx, Chairman and
Chief Executive
Officer
|
||
8
EXHIBIT
A
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: [______________]
Re: Trust
Account No. [ ] Termination Letter
Gentlemen:
Pursuant
to Section 3 of the Investment Management Trust Agreement between Apex
Bioventures Acquisition Corporation (the “Company”)
and
Continental Stock Transfer & Trust Company (the “Trustee”),
dated
as of [__________], 2007 (the “Trust
Agreement”),
this
is to advise you that the Company has entered into an agreement (the
“Business
Agreement”)
with
[___________] (“Target
Business”)
to
consummate a business combination with Target Business (the “Business
Combination”)
on or
about [insert date], which Business Combination is consistent with the
requirements set forth in the Company’s Registration Statement on Form S-1, as
amended, No. 333-135755. The Company shall notify you at least 48 hours in
advance of the actual date of the consummation of the Business Combination
(the
“Consummation
Date”).
Capitalized terms used herein and not otherwise define shall have the meaning
ascribed to them in the Trust Agreement.
Pursuant
to Section 4(f) of the Trust Agreement, we are providing you with [an affidavit]
[a certificate] of __________________, which verifies the vote of the Company’s
stockholders in connection with the Business Combination. In accordance
with the terms of the Trust Agreement, we hereby authorize you to commence
liquidation of the Trust Account to the effect that, on the Consummation
Date,
all of funds held in the Trust Account will be immediately available for
transfer to the account or accounts that the Company and the Representative
shall direct in writing on the Consummation Date.
On
the
Consummation Date, (i) counsel for the Company shall deliver to you written
notification that (a) all of the conditions to closing of the Business
Combination have been satisfied and the closing date for such Business
Combination has been scheduled pursuant to the terms of the Business Agreement,
and (b) the provisions of Section 11-51-302(6) and Rule 51-3.4 of the CRS have
been met, to the extent applicable; (ii) the Company shall deliver an oath
and
report of the inspector of election certifying the approval of the Business
Combination by the Company’s stockholders (which may be further certified by an
independent inspector which may be the Trustee or as otherwise appointed by
the
Company) (collectively, the “Report”);
and
(iii) the Company shall deliver to you written instructions with respect to
the
transfer of the funds, including the Deferred Discount, held in the Trust
Account (“Instructions”).
Upon
your receipt of the foregoing, you are hereby directed and authorized to
transfer the funds held in the Trust Account in accordance with the terms of
the
Instructions. Notwithstanding the foregoing, upon verification of receipt by
you
of the Instructions, we hereby agree and acknowledge that the Property in the
Trust Account shall be distributed as follows: (1) first, to the
Representative by wire transfer (or as otherwise directed by the Representative)
in immediately available funds, the aggregate amount of $1,800,000 (or up to
$2,070,000 if the underwriters' over-allotment option has been exercised),
plus any interest accrued thereon; and (2) thereafter, to any other Beneficiary
in accordance with the terms of the Instructions. In the event that certain
deposits held in the Trust Account may not be liquidated by the Consummation
Date without penalty, you will notify the Company of the same and, if the amount
set forth in sub-clause (1) shall not have been paid in full, the Company shall
issue written instructions directing you as to whether such funds should remain
in the Trust Account and be distributed after the Consummation Date to the
Company and/or the underwriters.
9
Upon
the
distribution of all the funds in the Trust Account pursuant to the terms hereof,
the Trust Agreement shall be terminated.
In
the
event that the Business Combination is not consummated on the Consummation
Date
described in the notice thereof and we have not notified you on or before the
original Consummation Date of a new Consummation Date, then the funds held
in
the Trust Account shall be reinvested as provided in the Trust Agreement on
the
business day immediately following the Consummation Date, as set forth in the
notice.
| Very truly yours, | ||
| APEX BIOVENTURES ACQUISITION CORPORATION | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
10
EXHIBIT
B
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: [______________]
Re: Trust
Account No. [ ] Termination Letter
Gentlemen:
Pursuant
to Section 3 of the Investment Management Trust Agreement between Apex
Bioventures Acquisition Corporation (the “Company”)
and
Continental Stock Transfer & Trust Company (the “Trustee”),
dated
as of [__________], 2007 (the “Trust
Agreement”),
this
is to advise you that the Company has been dissolved due to the Company's
inability to effect a Business Combination within the time frame specified
in
the Company's prospectus rellating to its IPO. Attached
hereto is a certified copy of the Certificate of Dissolution as filed with
the
Delaware Secretary of State. Defined terms used but not otherwise defined herein
shall have the meaning ascribed to such terms in the Trust
Agreement.
In
accordance with the terms of the Trust Agreement, we hereby (a) certify to
you
that the provisions of Section 11-51-302(6) and Rule 51-3.4 of the Colorado
Revised Statutes have been met, and (b) authorize you to commence liquidation
of
the Trust Account. You will notify the Company and _______________
(“Designated
Paying Agent”)
in
writing as to when all of the funds in the Trust Account will be available
for
immediate transfer (“Transfer
Date”).
The
Designated Paying Agent shall thereafter notify you as to the account or
accounts of the Designated Paying Agent that the funds in the Trust Account
should be transferred to on the Transfer Date so that the Designated Paying
Agent may commence distribution of such funds in accordance with terms of the
Trust Agreement and the Company’s Certificate of Incorporation, as amended. Upon
the payment of all the funds in the Trust Account, the Trust Agreement shall
be
terminated and the Trust Account closed.
| Very truly yours, | ||
| APEX BIOVENTURES ACQUISITION CORPORATION | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
11
EXHIBIT
C
|
AUTHORIZED
INDIVIDUAL(S)
FOR
TELEPHONE CALL BACK
|
AUTHORIZED
TELEPHONE
NUMBER(S)
|
|
|
Company:
|
||
|
00
Xxxx Xxxx
Xxxxxxxxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxxxx, CEO
|
(000)
000-0000
|
|
|
Trustee:
|
||
|
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxx XxXxxxx
|
(000)
000-0000
|
12
